THE QUEEN v. WONG TANG YIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 960 OF 1988

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J U D G M E N T

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1. In September   this year the appellant was convicted in the Magistrates Court at Central of the offence of assault occasioning actual bodily harm, relating to an event which occurred on 7th January 1988 at Harbour View Tsui Hang Village Restaurant, 2nd floor, Great Egale Centre, 23 Harbour Road, wahchai, in Hong Kong. The appellant appealed against his conviction, an the mattter was heard by me an the 23rd November 1988 when  I allowed wed he appeal and indicated that I would give reasons later. I now do so.

2. The Crown case rested on the evidence of one witness, namely Chi-keung, the alleged victim. Another witness, the Assistant Manager of the Tsui Hang Village Restaurant, gave evidence of fighting but there was nothing in his evidence which supported the evidence of the prosecution witness to the effect that the appellant had struck him. The learned Magistrate recognized that the case stood or fell on the credibility of P.W.1.

3. The grounds of appeal are set out as follows:-

"1.     That there was no evidence or no sufficient evidence whereon to found the said conviction.

2.     That the conviction was unsafe and unsatisfactory in that the learned Magistrate failed to demonstrate how he resolved the conficting evidence as to the role (if any) which the Appellant was alleged to have played in the incident :

(a)    in giving his judgment, the learned Magistrate recognised that the case stood or fell on the credibility of PW1;

(b)    in evidence in chief PW1 stated in relation to the Appellant "I was hit on the back of the head. I was bleeding. I saw it was Wong who struck the first blow ... When I was armlocked, he (the Appellant) struck the first blow. He (the Appellant) hit at the front part. He (the Appellant) was facing me."

(d)    Also under cross examination when asked whether he was sure that he saw the Defendant struck him on the chest and whether there as any possiblility of mistake, PW1 answer respectively YES and NO.

(e)     In his statement to the police made on the same day, shortly after the alleged incident the contents of which were confirmed by a Statutory Declaration declared by PW1 on the 12th April 1988 (evidence of which was given by PW1 under cross examination) PW1 stated, that he did not know the Appellant attacked him.

(f)     In a further statement made by PW1 to the police on the 16th April 1988, (evidence of which was given by PWI under cross examination) PW1 stated that he did not know if the Appellant attacked him.

3.    The learned Magistrate erred in law by finding (at paragraph 15 of his Statement of Findings) that as the defence had not challenged PWl in cross-examination upon 'the following matters:

(a)    Appellants presence at the material time:

(b)    that the Appellarit pointed out PW1 to the other assailants;

that those allegations were true:

4.    The learned Magistrate erred by finding that the only irresistible inference was that the Appellant and the Allasilants had a common, intention to assault PWl. The primary facts as proven equally admitted other inferences.

5.    The learned Magistrate erred in finding that the Appellant "fled immediately after the attack". The only evidence concerned the departure of the Defendant is at page 5 of the Record where PW1 in evidence in chief said "after the attack, Defendant left with his group" .

4. I allowed the appeal on the basis of grounds 2 and 3. An examination of the record revealed that there were serious contradictions between the evidence of the witness in court and his statements made prior to the hearing out of court, one of which had been supported by a statutory declaration.

5. In his Statement of Findings the Magistrate said that he accepted the explanation of P. W. 1 as to why he said he did not know if the appellant had attacked him in his first statement and as to why he confirmed that statement in the City District Office in April. He also said in his Statement, of Findings that P. W.1's explanation as to his second statement was not as satisfactory.

"It is understandable that as he had suffered injuries in his head, when he said he did not know if the Appellant had attacked him, he must have addressed his mind to the attack on his head. But as he did not say this in his  evidence, I  did not allow myself to speculate a reason for him. However, having regard to all the circumstances and his demeanour I was, satisfied that he was an honest witness trying his best to tell from recollection what had happened. He was not exaggerating when he said the Appellant hit him on the chest and he honestly said he did not remember how many the Appellant his him. I found that what he said in his second statement did not affect his honesty. But I did take that into account  when assessing the weight to be given to the whole of his evidence and in particular to his allegation about the Appellant hitting him on his chest.''

6. With respect to the Magistrate, an examination of the record indicates that the answers which P.W.1 gave under the cross-examination of Mr Owen, who was representing the appellant in the court below, were far from satisfactory. Indeed, it is char from the record that he was avoiding the question and previaricating.

7. In his judgment, at the conclusion of the case, the Magistrate said :-

"Case stand or fall on credibility of PW1. He has been vigorously cross-examination: His answers were firm and cogent. He has been attacked on his previous statements to police made in January and April where. he said hey did; not know if Defendant attacked him. He explained that in relation to January statement, it was taken while he was in the hospital bleeding and in agony. He had not yet calmed down and had not have opportunities to think it over I accept that explanation. As for April statement he explained that he was taken to CDO Office to make statutory declaration regarding his January statement. He did say in his April Statement that he did not know if Defendant attached Him. Having seen his demeanor I am satisfied seen he was telling the from his recollection now."

8. With respect to the Magistrate I do not think he should have accepted that explanation because as Mr. Gunston has pointed out, there was a complete changes of story, not only from his statements but also from the statutory declaration. The magistrate was saying that he was satisfied that the witness was telling the truth from his recollection at that stage some 8 months after the alleged offence,.at the stage some 8 months after the alleged offence.

9. The learned Magistrate questioned the witness himself and the record shows the question and answer as follows:-

"Court : You told police on 16/4 that you did not know if Defendant assaulted you, why?

A.     Because when I was making statement I said I was being armlocked. Then I was attacked. He was standing in front of me. I was not able to remember how many times he hit me. He was in front of me, pointed at me and said, "it's him" he had body contacted with me. Immediately afterwards this rest came up and attacked me."

10. With respect to the Magistrate that answer was not an answer to the question which had been put. And no further questions were asked.

11. Although the witness, PW1, had given evidence before the Magistrate to the effect that the appellant had struck him on the chest, the medical evidence revealed. no injuries to his chest

12. So far as ground 3 is concerned the Magistrate said in his Statement of Findings:-

"I have no doubt as to the reliability of P.W.1's identification of the Appellant at the time of the attack which was based on recognition. In particular I was satisfied beyond all doubts that the Appellant was present at the time of the attack. This had. not been challenged by Mr. Owen in his cross-examination. Indeed Mr. Owen's submission was that the Appellant's presence alone was not sufficient. Furthermore Mr. Owen has not challenged the evidence that the Appellant did point at P.W. 1 and identified him by saying 'It's him. It's him.-

13. With respect to the Magistrate it was not open to him to consider that the prosecution witnesses' evidence on these matters had not been challenged. In the course of cross examination it was put to PW1 that he was making up a story about the defendant's involvement in this assault and it was also put that the defendant did not participate in any way. And that the defendant had nothing to do with the injury.

14. It was admitted at the hearing that on the 12th April 1988 the defendant (appellant) surrendered himself to Wanchai Police Station and was arrested by DPC12259 for this offence. On the 18th April 1988 defendant was positively confrontation in Wanchai Police Station by PW1.

15. The identification of the appellant at the Wanchai Police Station adds nothing to this case because it is clear from the evidence of P.W.1 that he and the appellant knew one another beforehand. The real issue in this case is whether the witness, P.W.1. was telling the truth about the appellant's involvement in the assault upon him.

16. Having examine the Magistrate's Statement of Findigs and the evidence in detail, I was of the opinion that the conviction was unsafe and unsatisfactory.