HKSAR v. CHEUNG CHAU SHING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

(Magistracy Criminal Appeal No.358 of 1998)

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JUDGMENT

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1. The Appellant was tried and convicted by a Magistrate sitting at Tuen Mun Magistracy of the offence of Criminal Damage contrary to Section 60(1) of the Crimes Ordinance Cap. 200.

2. Briefly, the case against the Appellant was that on 25th December, 1997 at about 8:05pm, PW1 was driving his private car FR8025 along the Tuen Mun Highway, bound for Yuen Long. He had with him his wife (PW2) and their five months old baby. Whilst so driving, he noticed a medium size truck following him at a very close distance and with its headlights on high beam. Soon afterwards, the truck pulled abreast of his car and a male in the left passenger seat used foul language to scold him for blocking the truck's way. PW1 answered in foul language and a dispute then ensued whilst both vehicles were being driven along the highway. This exchange of words lasted for the distance of some five lamp posts and it was during this time that an object was thrown from the truck at PW1's car and hit it on the windscreen. Subsequently, the truck swerved left causing PW1 to take a route which he had not intended to take. The truck followed PW1's car to a set of traffic lights where it stopped. A person then alighted from the left side of the truck and approached PW1's car. When that person was behind the car, PW1 and PW2 heard a loud bang. This caused PW1 to immediately drive off jumping the red light. The person boarded the truck which then chased after PW1's car. At the lights of the junction of Tsing Wui Street and Castle Peak Road, PW1 had to stop because other vehicles which had stopped in front blocked his way. No sooner had he done that when the truck was driven to swerve across its lane stopping broadside in front of his car. Two persons immediately got off from the left side of the truck and approached PW1 who was still seated in his car. PW1 asked what the matter was but without a word, one of them punched him in the face. A third person, alleged to be the Appellant, alighted from the truck's driver seat and also approached PW1's car. He then proceeded to hit its windscreen with a black torch several times. Meanwhile, the other two were scolding PW1 and hitting his car's body. During this time, PW2 used her mobile telephone to make a report of what was happening to the police. The three men then re-boarded the truck and left. PW1 noted down the truck's registration number as it was driven away. After the police had arrived, PW1 checked the windscreen and found it damaged. There was no damage to it prior to the incident that evening. On 31st December, 1997, PW1 and PW2 in separate identification parades held at Tuen Mun police station respectively identified the Appellant as the person who had damaged the windscreen with the torch.

3. The Prosecution called PW1 and PW2 to give evidence. When the learned Magistrate ruled that the Appellant had a case to answer, the Appellant elected to remain silent and did not call any witness. Defence counsel then made his final submission. The Court adjourned for a short while and when it returned, found the Appellant guilty of the offence.

4. Mr. Grounds, who appears for the Appellant in this appeal but not below has put forward three grounds of appeal:

Ground 1 was that the learned Magistrate had wrongly found that the damage to the windscreen of PW1's car was caused by the Appellant hitting it with a torch;

Ground 2 was that in respect of identity, the learned Magistrate was wrong in failing to take into consideration facts which cast a doubt upon the correctness or verity of PW1 & PW2's identification of the Appellant as the person who held and used the torch, and/or their reliability as witnesses; and

Ground 3 was that there was therefore a lurking doubt which makes the conviction unsafe and unsatisfactory.

Mr.Grounds had painstakingly taken me through the many parts of the transcript and the learned Magistrate's Statement of Findings to demonstrate his points and also to support the arguments in respect of his grounds of appeal. The case of Turnbull was cited for his contention that whenever a case against an accused depends wholly or substantially upon the correctness of one or more identifications of him as the culprit, which identification(s) the defence alleges to be mistaken, a court must pay special attention to the need for caution before convicting the accused in reliance upon the correctness of the identification(s). He submits that in dealing with this matter, the court must have in mind the specific weaknesses which appeared in the evidence in relation to identification(s). I do not think there was any disagreement with Mr.Grounds' statement of the law. Indeed, Mr.To for the Respondent had not touched upon this at all. I certainly accept, with respect, what Mr.Grounds had submitted in respect of the law to be correct.

5. I have had the opportunity of reading through the whole appeal bundle and have paid particular attention to those parts which have been drawn especially to my attention.

6. In respect of Ground 1, there is and was no dispute that the windscreen was in fact damaged during the course of that evening. As I understand it, Mr.Grounds' complaint was that the learned Magistrate failed to evaluate the evidence properly and was wrong to have found that the damage to the windscreen was not caused by the object thrown at the windscreen but rather by the hitting of the torch. He said this was so because the evidence did not establish beyond reasonable doubt whether the damage to PW1's windscreen was caused by the object thrown on the Tuen Mun Highway or being hit by the torch or "by both occurrences".

7. In my view, it matters not whether there was damage done by the object thrown at the windscreen so long as some damage was done by the torch. It is not necessary for the learned Magistrate to specifically define which damage was done by which act. I have looked at the photographs exhibited. Although they are not of the finest quality, the damage done to the windscreen could be discerned clearly. It was in the form of many scratch-like marks on the windscreen. It is common experience that if a flying object hit the windscreen of a moving car, it would hit it once or at most, twice and then would bounce off it. Such a flying object, especially if it was bottle-like, could not have caused the many marks as shown by the photographs. Hence, although Mr.Grounds is correct in his submission that it was not possible from the evidence to say what actual damage was done to the windscreen by the flying object, nonetheless the physical state of the windscreen after the incidents was such that it was evidence sufficient to prove beyond reasonable doubt that at least some damage was done by the hitting with the torch. This was sufficient proof of the element of damage as alleged. Therefore, with respect, I find this ground not of substance.

8. Ground 2 is the substantial ground in the sense that all along this was the case put forward by the defence. I split Mr.Grounds' complaints into two limbs. Firstly, in respect of the verity of PW1 & PW2; I do not see anything from the transcript of the proceedings that causes me to come to the conclusion that the learned Magistrate was wrong to have found these witnesses to be honest. As has been said ad nauseam, it is the trial Magistrate who has the benefit of observing the demeanour of witnesses and hence is in a much better position than an appellate judge in deciding whether witnesses are credible. Of course there are exceptional cases where the evidence was such that upon a plain reading of the transcript, there is no other conclusion but that the Magistrate was wrong. This would include cases where there are obvious material difficulties that arose from the evidence in relation to important issues and the Magistrate has either failed or failed satisfactorily to resolve them. In my view this is not such a case.

9. Secondly, in respect of the learned Magistrate's failure to take into account facts which cast a doubt upon the correctness and/or reliability of the identifications of the Appellant by PW1 & PW2 as the person who used the torch; this was the issue which had caused me to adjourn so that I may check the evidence in detail from the transcript. I am grateful to Mr.Grounds for having pinpointed the parts he relied upon and supplying me with references of them. Having so checked the evidence carefully, with respect, Mr.Grounds is correct to say that there were discrepancies. It is pointless for me to set out each and every part of the evidence which Mr.Grounds has complained about. However, during the course of submissions, Mr.Grounds did highlight certain parts which he called "matters of significance" for this court's particular attention. They included: the truck not being Left-hand driven; lengthy descriptions of the person who assaulted PW1 compared with the scanty descriptions of the person who hit the windscreen; description of the assailant of PW1 having brown hair and the other two, including the one who held the torch, as having black hair; picking the Appellant from the identification parade because he had some brown hair and a furious look; not sure who was the driver of the truck; inconsistencies between the testimony and their respective statements to police; and both PW1 & PW2 giving their statements to the police in the same room. Whilst recognizing that the complaints by Mr.Grounds were fairly made, the central issue is whether or not they created a situation which made the learned Magistrate's finding that the Appellant was positively identified as the person who damaged the windscreen with the torch unsustainable. To do that fairly, the question of whether PW1 & PW2 might have been honest but mistaken has to be carefully considered.

10. In respect of the identification, the learned Magistrate had started off by warning herself of the special need for caution following the directions laid down in Turnbull. Then she went on to state on what basis she was satisfied beyond reasonable doubt that the identifications made by PW1 & PW2 of the Appellant was found by her to be accurate and reliable. She listed eight reasons. These were important parts of the evidence which the learned Magistrate had particularly taken into consideration in arriving at the conclusion that the identifications were not mistaken. Mr.Grounds went through this list and prayed in aid the "weaknesses" he had quoted in support of his complaints against each of these reasons.

11. I must say that at the time when I heard Mr.Grounds' eloquent submissions in court, they did cause me some concern as to whether the identifications of the Appellant were accurate and reliable. Since then, I have had the opportunity of reviewing on tape Mr.Grounds' entire submission. It seems to me that central to the identification issue are three undisputed facts: first, that PW1 & PW2 did have the opportunity of observing the person who had used a torch to damage their car's windscreen and such opportunity was not what has been commonly called a "fleeting glance"; second, that the Appellant was picked out from identification parades; and third, the identifications were made by PW1 & PW2 at two separate identification parades held some six days after the incident. Some comments have been made in respect of these identification parades. However, there is no dispute that no objections were raised during the trial about them. Hence, for all intents and purposes, they were properly held identification parades. This is to be contrasted with other less satisfactory forms of identification such as photographic identifications and confrontation. Therefore, whatever PW1 & PW2 had said in answer to skillful cross-examination takes on a much less significant role than these three facts. I note in passing that in fact a lot of problems with the answers arose from inaccurate interpretations which the learned Magistrate had to time and again correct.

12. Though the learned Magistrate did not specifically say or list out the parts of the evidence which Mr.Grounds have called "weaknesses"; nonetheless, it is fair to say that from reading her short oral judgment given on the date of the conviction together with her Statement of Findings, and in particular her lists of reasons, that she must have taken all the evidence into account. This is not a case where any particular parts of the evidence was so glaringly contradictory that the learned Magistrate had to particularly resolve the difficulties in order to demonstrate to an appellate court the soundness of her verdict.

13. A professional Magistrate is not required to set out every single matter which she has taken into consideration. Nor is she required to set out how her evaluation of the evidence coincides with her understanding of the law. An appellate court will look at the discrepancies, if there are any, and come to a decision as to whether or not the Magistrate had sufficiently and properly considered the whole of the evidence; including those parts which are against the Prosecution's case. No purpose is served with a minute analysis of a transcript which will almost always yield some discrepancies, failure to answer a question, pieces of evidence not included in statements to the police and other points capable of forming pages of grounds of appeal. In reality, even with honest witnesses, such occurrences in their evidence is by far the rule than the exception.

14. In consequence, I am satisfied that the learned Magistrate had by what she said in court, together with her Statement of Findings addressed the so-called "weaknesses" in more than passing detail, though perhaps by implication rather than directly. I am firmly of the view that the idetifications made by PW1 & PW2 were not mistaken and that the learned Magistrate had not erred in arriving at the same conclusion. Therefore, the second limb of Ground 2 fails.

15. In respect of Ground 3, it is an all encompassing ground and depended upon the success or failure of Grounds 1 and 2. Since those grounds fail, this ground must also fail. The verdict is confirmed and the appeal against conviction is dismissed.