HKSAR v. MA KA KIT AND OTHERS

HCMA326/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.326 OF 2003

(ON APPEAL FROM NKCC 1159 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence by the 1st and 2nd appellants. The 4th appellant appeals against conviction alone, having abandoned his appeal against sentence. All were convicted of one count of assault occasioning actual bodily harm after trial. The 1st and 2nd appellants were each sentenced to nine months' imprisonment. I shall first deal with the appeal against conviction by the 4th appellant.

Appeal against conviction by the 4th appellant

2. The victim in this case, PW1, was a waiter at a noodle shop in Mongkok. At around 6:30 a.m. one morning, an argument ensued between PW1 and a customer. PW1 was pushed and he fell onto the ground. He was then fisted and kicked. Tables inside the shop were turned and the situation was chaotic.

3. Two police officers, PW4 and PW5, arrived at the scene shortly and witnessed that the 4th appellant to be amongst seven to eight people kicking and punching PW1. He had been observed for some time before he fled the scene. He was then arrested by other officers.

4. The 4th appellant did not give or call evidence at the trial below.

5. PW1 could not see the assailants when he was assaulted. PW3, who was a student having noodles inside the shop could see the attack and he could see people fleeing from the shop but did not identify anybody. The crucial issue in this case boils down to the accuracy of identification of the 4th appellant by PW4 and PW5 who arrived at the scene after the attack had started.

6. The 4th appellant, through his counsel Mr Kwok, complained that the magistrate had failed to give himself a truly Turnbull direction in a situation where observation was difficult, in particular the warning that an honest witness can be a mistaken witness. It was further complained that the magistrate had not resolved the conflicts in the prosecution case and had confused the standard of proof.

7. I shall first dispose of the second and the third grounds. According to PW3's evidence, 10 males arrived at the noodle shop together. His evidence was that the 4th appellant sat at another table and was not amongst those 10 people. The magistrate was alive to that issue but had nonetheless concluded, after analysis of the evidence, that the evidence of PW3 did not cast doubt on the identification by PW4 and PW5. The magistrate had not confused the standard of proof. When he said "it did not preclude D4 from taking part in the assault of PW1" he simply meant the fact that the 4th appellant was not sharing the same table did not mean that he could not have taken part in the fight. What he meant is these facts are not mutually exclusive. The magistrate, who had seen and heard all witnesses, was entitled to make these findings of fact. I am of the view that the magistrate had resolved discrepancies in making his findings.

8. In relation to the identification issue, this is not a fleeting glance situation but was an observation made in difficult circumstances given the chaotic situation. Although the magistrate did not expressly lay out individual factors to be considered in assessing identification evidence he had exercised caution and had closely scrutinized the circumstances in which the identification was made. In his Statement of Findings, he stated that he accepted that the assailants were observed by PW4 and PW5 for some one to two minutes at about four metres distance away before they fled the scene. There was no obstruction to the observation and the lighting was good, and he accepted their identification in its entirety.

9. I am satisfied that the magistrate had demonstrated that he had borne in mind all the important matters which would affect the quality of the identification before he came to his conclusion that the identification evidence was accurate and reliable. Although he had not expressly mentioned the warning that "an honest witness could have also been mistaken", in looking at the Statement of Findings, I can safely assume that the professional magistrate had borne that caution in the forefront of his mind when assessing the evidence and the quality of the identification.

10. The appeal against conviction by the 4th appellant fails, and I dismiss his appeal. I shall now deal with appeal against sentence by the 1st and 2nd appellants.

Appeal against sentence by the 1st and 2nd appellants

11. Both advanced that the sentence passed by the magistrate was manifestly excessive. The 2nd appellant adopted what was said by the 1st appellant today. The 1st appellant told me today that he was remorseful. That had never been demonstrated at the trial by entering any guilty plea. The magistrate was of the view that this is a bad case of assault occasioning actual bodily harm being an unprovoked attack by a gang on an unarmed individual. He adopted nine months starting point. He had also considered appropriateness of a suspended sentence but found no exceptional circumstances to justifying such. He had also considered whether there existed any mitigation for the appellants but found none warranting any discount from the starting point.

12. I do not consider the sentence so imposed was either wrong in principle or manifestly excessive. The sentence is entirely proper and I affirm that. I order that the appeal against sentence by the 1st and 2nd appellants be dismissed.