HKSAR v. KWOK PO KING

HCMA 1137/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1137 OF 2001

(ON APPEAL FROM STCC 700022/2001)

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J U D G M E N T

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1. The Appellant was convicted after trial of one charge of common assault contrary to common law in s.40 of the Offence Against Person Ordinance Cap.212, Laws of Hong Kong. The Appellant now appeals against that conviction.

2. The trial was conducted in Chinese, but on the day of appeal, Mr Chan who represents the Appellant on the appeal applied to have the hearing of the appeal in English. I therefore allowed him to argue the appeal in English.

3. On the day of the offence at about 1:10 p.m., PW1, a girl of 15 together with her friend, PW2, were walking together having left school earlier on, when a girl, by the name of Cheung Wai Man, came up and told PW1 that "Kwok Po" was looking for her. At the same time, PW1 heard the Appellant calling out to her to stop from behind. PW1 turned around and saw the Appellant together with two other persons, one male and one female. The Appellant and those two persons approached PW1, and the female who was in the company of the Appellant, suddenly, used her elbow to hit PW1's forehead. That assault was followed by a concerted attack on her by the Appellant and the male and female. Eventually, the Appellant assisted by her school friends was helped into a taxi and they went to a police station to report the matter. As a result she was taken to hospital where she received medical attention to her nose and her forehead and thigh. PW1 agreed that she knew the Appellant and also the girl called Cheung Wai Man and that they had no bad feelings between them.

4. PW2's evidence was that she was walking with PW1 and she had witnessed the Appellant hitting PW1. She also saw the other female with the Appellant hit PW1 and that they used not only the hands but their feet to kick PW1. She also saw a male had participated in hitting PW1's nose. She saw PW1's nose bleeding. Subsequently, she helped PW1 into a taxi and they left the scene.

5. The learned magistrate after warning himself of the burden and onus of proof and also giving himself the Berrada warning, then analysed the evidence and ultimately convicted the Appellant.

Grounds of appeal

6. Mr Chan who represents the Appellant on the appeal argued two grounds of appeal. The first is that the learned magistrate had erred in excluding the transcript of his cross-examination of the prosecution witnesses in the previous trial. As the trial from which this appeal lies was a re-trial. The second ground of appeal is that the learned magistrate was wrong in finding that the cross-examination with reference to the transcript was sufficient as the questions were asked in summarised form and the defence had not read the whole transcript into the record. The third ground of appeal was that the evidence of the prosecution witnesses at the original trial and the re-trial were of such as an extent in nature that the conviction is unsafe and unfair and finally that the trial magistrate, having identified the unsatisfactory areas of PW2's evidence, erred in not further considering whether she had lied and if so whether this would impugn upon the totality of the prosecution's evidence.

7. Mr Chan argued that when he was cross-examining the prosecution witnesses he did not read the whole of the transcript to them because the learned magistrate had asked him to keep his questions short and also that he felt that the witnesses being young girls, it would confuse them if he had read the whole of their evidence to them. So what happened was that at the time when he was putting questions to these witnesses, he had placed photocopies of the transcripts in front of them so that they may refer to it when the questions were being asked. He had not sought to produce the transcript at that stage in his cross-examination but had sought to do so when he was making his submission. He argued that because the tenor of the evidence of the prosecution witnesses in the original trial could not be brought out merely from his cross-examination, that the learned magistrate should have allowed his production of the whole of the transcript into evidence. I do not agree.

8. The purpose of cross-examining a witness on a previous inconsistent statement was that it would allow the witness to offer an explanation or not for the inconsistency. Written record of the previous inconsistent statement is only admissible if the witness denies making that inconsistent statement. The fact that their inconsistencies in a record be they a transcript of trial proceedings or witness statement does not make the whole of that document admissible.

9. Mr Chan argues that he had failed to put the matter to the witnesses because he considered that it would be too confusing for them and because in view of their young age is not a good reason for putting the transcript in. If he had felt it necessary to repeat what they had said in the other trial and put their inconsistencies to them then he should have done so. I therefore agree with the learned magistrate's decision not to allow the production of the transcript as an exhibit when Mr Chan was making his final submissions.

10. Mr Chan submitted that there were glaring inconsistencies in the evidence of PW1 in that: (a) PW1 was inconsistent in her evidence as to who had originally stopped her on that day. Mr Chan says PW1 originally said it was a person called '小寶' who stopped her but thereafter she was shown the transcript of her evidence in the first trial, she then resiled from that evidence and said she was not sure who stopped her and yet, Mr Chan says, PW1 was able to describe the facial expression of the Appellant at the time when she was asked if she was in a hurry. Mr Chan also pointed out that PW1 at the second trial said the man had used his right hand to strike her but in her statement of the 17th to the police she had said that the man used his left hand. Mr Chan further submitted that PW2 in the first trial had said that she did not know the Appellant but in the second trial admitted that she knew her, so Mr Chan says that this was a lie and therefore the learned magistrate should have considered whether this lie affected the whole of the prosecution evidence as PW2 was in the "same camp" as PW1.

11. The learned magistrate had considered all the inconsistencies which were present in PW1's evidence, as pointed out by Mr Chan. At the end of the day, he concluded that it did not affect her basic credibility. As far as PW2 is concerned, the learned magistrate said at p.20 of the appeal bundle, in the last paragraph, that he gave no weight whatsoever to PW2's evidence.

12. I can find no fault whatsoever with the learned magistrate's conclusions. I therefore find that there is no merit in these grounds and the appeal against conviction is therefore dismissed.