HKSAR v. KWOK HO PUN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 167 OF 1998

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J U D G M E N T

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1. On the 21st of January of this year, the Appellant in this matter was convicted of common assault. He was bound over in a sum of $2,000.00 to keep the peace for a period of two years and was, in addition, ordered to pay compensation to the victim in the sum of $1,000.00. He appeals against conviction only.

2. The background facts are these. The Appellant and the person he was convicted of assaulting, an elderly gentleman named Kwok Kam-tim, are relatives of some kind. Mr. Kwok resides in a village in the New Territories. At the material time the Appellant was building a house adjacent to Mr. Kwok's residence. The building work caused friction between the parties. The genesis of that friction is not clear; suffice to say that there was an on-going dispute as to the Appellant's entitlement to build. This friction led to bad blood between the parties and it appears that there had been a number of quarrels.

3. Matters came to a head on 7th November 1997. On that day, according to Mr. Kwok, he was outside his house cleaning a sewage drain. He was approached by the Appellant who accused him of trespassing on his land. A quarrel broke out. Mr. Kwok testified that during the course of this quarrel the Appellant punched him once with his fist, the blow landing on his cheek. Mr. Kwok was taken to hospital and was examined later that same day. The doctor who examined him described his injuries in the following terms:

"injury included - slightly swollen and moderately tender area of about 3/4 centimetres in diameter at left lateral facial area and anterior to the jaw, and some minor abrasion and cuts in front of the about area. No significant head injury occurred. This injury was most likely the consequence of being hit by hard object to the above area, using moderate force."

4. The Appellant accepted that a quarrel took place. There was a metal fence separating them, he said, and he did shake this fence in his anger. However, he denied any form of physical contact. In the heat of the argument, he said, Mr. Kwok accused him of assault and then returned to his house. When he walked away there was no sign of injury on his face. However, when he came out of the house again, there was an injury to his face which he showed to other villagers. In short, it was Appellant's case that Mr. Kwok fabricated his complaint by injuring himself.

5. In his statement of findings, the Magistrate accepted the evidence of Mr. Kwok and of its two prosecution eye-witnesses. The testimony of the Appellant and his witnesses did not raise a reasonable doubt in his mind. In respect of the prosecution witnesses, the Magistrate said the following:

" I accept that there was some history of bad blood between PW1 (Mr. Kwok) and Defendant (the Appellant) and that there was a quarrel of some kind around 3:30 p.m. on 7th November 1997. PW1 was 68 years old and I accept his evidence of the quarrel. I think he was a witness who was doing his best to give an accurate account. I do not think that the historical reason for the quarrel had detracted significantly from his evidence.

PW3 is the daughter-in-law of PW1 (Mr. Kwok). She heard the quarrel and came down to see what was happening. She was separated from the Defendant (the Appellant) by a metal net. She was close to the Defendant and PW1. She saw PW1's hand stretch out fast. I accept her evidence and find the inconsistency between her version and that of PW1 to be minor. I also accept her evidence, making allowance for the fact that she is related to PW1 by marriage.

PW4 is an elderly lady (70 years of age). She is an independent witness. I accept that she heard the quarrel also and did see a blow of some kind land whether it was a slap or a punch as alleged by PW1. I do not find the nature of the blow material in view of her probable of slowness of thought and weaker memory. I accept her as a witness who I find credible."

6. At the outset of the appeal hearing, Mr. Wright, who appeared for the Appellant, applied to call fresh evidence on appeal. The evidence consisted of a videotape recording taken by the Appellant prior to the 7th November 1997 during the course of one of the earlier arguments with Mr. Kwok. It was not evidence of what happened on the day in question. In the exercise of my discretion, I rule against the admission of this fresh evidence. I did so for the following reasons:

(a) While Mr. Wright did not represent the Appellant at trial and may well have adopted a different cause of action if he had been counsel at trial, it is apparent that defence counsel at trial knew of the existence of the tape recording. Indeed, during cross-examination Mr. Kwok was asked about an earlier incident and when his answers appeared to be equivocal, it was put to him that the earlier incident had been recorded on videotape which showed Mr. Kwok shouting and waving his arms and using a saw to cut a section of wooden scaffolding. In answer, Mr. Kwok said that he could not recall whether there had been such an earlier incident. Defence counsel saw fit to take the matter no further. No doubt he believed that he had made his point sufficiently. As such, a deliberate course of action was chosen at trial not to introduce the video film. Mr. Wright has not attempted to argue that it was an incompetent or negligent decision. He accepts that it was a tactical decision professionally made at the time. That being the case, I do not see that now, because a new counsel believes that a different tactical approach should be taken, that the evidence should be allowed. In this regard, see for example, R. v. Rowland [1947] 1 KB 460: where counsel deliberately chose a certain course at trial, he could not adopt a different course where that involved calling fresh evidence on appeal.

(b) The matter in any event went to a collateral issue of credibility and, on a reading of the transcript, it does not appear that, when confronted with the existence of a video film, Mr. Kwok specifically denied displaying his anger on the earlier occasion in the manner alleged. His answer was simply that he could not recall.

(c) In his statement of findings it is apparent that the Magistrate took into account the history of the bad blood between the parties and the fact that Mr. Kwok may have had a subjective view of that history. The Magistrate said the following concerning Mr. Kwok's testimony: "I think he was a witness who was doing his best to give an accurate account. I do not think that the historical reasons for the quarrel has detracted significantly from his evidence." [my italics]

7. I come now to the Appellant's substantive grounds of appeal, specifically, that the verdict was unsafe and unsatisfactory

8. First, it has been argued that the medical evidence was at best equivocal; in short, the evidence was consistent both with the single punch alleged by the prosecution and with some other form of self-inflicted injury. In this regard, however, the Magistrate did not come to a finding of fact that the medical evidence was of itself proof of the assault. He did not go that far. Clearly, he accepted its equivocal nature:

"I find as a fact based upon the evidence of PW2, Dr. Wong Tai-hung, that PW1 suffered a recent injury to the left side of his face on the same day. This was a fresh abrasion with accompanying small cuts. It is consistent with a blow from a hard object and with being hit by a fist. The issue in this case is whether the injury was caused by a blow from the Defendant (the Appellant) ..."

9. Second, the Appellant has submitted that Mr. Kwok contradicted himself so fundamentally in his evidence that the Magistrate should not have relied upon him as a witness of the truth. With respect, however, having considered the transcript, I can find nothing which indicates any fundamental contradiction in the testimony of Mr. Kwok to fatally undermining that testimony. It must be remembered that the Magistrate had the benefit of seeing Mr. Kwok give his evidence and of assessing not only the content of that evidence but also the witness's demeanour. The Magistrate took into account the age of the witness and came to the conclusion that Mr. Kwok was a witness 'doing his best' to give an accurate account.

10. Third, it has been argued that PW3, the daughter-in-law of Mr. Kwok, was a partisan witness and in the circumstances the Magistrate should have viewed her evidence with circumspection, especially having regard to the contradictions contained in that evidence. The Magistrate, however, took into account that she was a close relative of Mr. Kwok and also took into account the inconsistencies to which Mr. Wright has referred. I find nothing in this point.

11. Fourth, it is submitted that the Magistrate considered PW4, the second eye-witness, to be an independent witness when in fact she was not. Again, I find nothing in this point. A study of the transcript shows that the Magistrate was made well aware of the relationship of this witness to Mr. Kwok but, in the context, considered her to be an independent witness.

12. In summary, I find nothing in the matters placed before me, taken individually or collectively, to suggest that the verdict of the Magistrate was in any way unsafe or unsatisfactory.

13. Finally, it has been submitted that the Magistrate failed to give due weight to the history of bad blood between the parties which may well have motivated Mr. Kwok, in the heat of the moment, to make a false allegation of assault and then to go inside his house and to injure himself in order to substantiate that false accusation. The Magistrate, however, was well aware of the history of bad blood and it is clear that he took this into account as a general factor in his assessment of the evidence.

14. In his statement of findings, inter alia, the Magistrate said the following:

"I also do not leave common sense behind. If the Defendant is correct that he did not injure PW1 at all - then there is a big conspiracy between PW1, 2, 3 - giving false information to the police."

15. This finding has been subject to criticism on the basis that it could only have been made by disregarding the history of bad blood that existed between the parties. I cannot agree. In my judgment, the Magistrate was saying no more than this: "looking at the realities of this matter and employing my knowledge of life, if the Appellant is correct in his assertions that this was a fabricated accusation, it has to mean that in the heat of the moment Mr. Kwok and the two eye-witnesses were able to conspire together to manufacture the false allegation of assault; that is, after Mr. Kwok, an elderly man, had taken the drastic step, inside his house, of rendering an injury to himself sufficient to cause abrasions and swelling." In short, in my judgment, the Magistrate was doing no more than assessing the defence case in the context of the prevailing circumstances. It was a legitimate exercise of his judicial function.

16. Finally I wish to cite the dicta of Keith J. in another Magistracy Appeal, R. v. Hui Kee Fung (Magistracy Appeal No. 196 of 1994) in which he said as follows:

"Appeals from decisions of Magistrate on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The judge does not even see the witnesses. It will be rare indeed for a judge to say that the findings of fact made by the Magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the Magistrate's findings exist. There may occasionally be cases in which a Defendant believes that he has been the victim of a miscarriage of justice, because the Magistrate has chosen to believe the witnesses who gave evidence against him and disbelieve him. But if there are no sustainable grounds of appeal, a belief in one's innocence is not sufficient to justify the invocation of an appellate process which treats the findings of fact made by a Court of First Instance as so sacrosanct as our system of criminal justice does."

17. In my judgment, the appeal must be dismissed.