R. v. LUI WAI KUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.621 OF 1996

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J U D G M E N T

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1. This is an appeal against a conviction for common assault.

2. The appellant was charged with assaulting Madam Chan Wing Sheung at the lift lobby of the Law Courts in Harbour Road on 4th August 1995. The trial was split over a number of days and concluded in April this year.

3. The allegations by the two main prosecution witnesses are very straightforward. The complainant's husband, a solicitor, was the plaintiff in a civil matter before the Small Claims Tribunal on 4th August 1995. The defendant to those proceedings was a limited company. This appellant represented the company in those proceedings, and said in evidence that he was then branch manager of the company. The proceedings were attended by the plaintiff and his wife. The plaintiff was successful, and had secured compensation in the sum of $2,100, and an amount in respect of expenses in the sum of $500.

4. The prosecution case was that after the proceedings concluded, the plaintiff and his wife and the defendant were in the lobby on the second floor of the building; that was the floor where the Tribunal was housed. The husband and wife took one lift down to the ground floor; the appellant another. When they emerged, the appellant approached them, apparently angered by the result of the proceedings, and abused them suggesting that he, the husband, must be a cheap lawyer to want $500 in expenses. The evidence was that the wife then retorted by saying "So what, we won", or words to that effect. The appellant is then said to have slapped the wife on her face causing her cheek to go red. The husband then telephoned to the police, who in due course arrived. The wife went to a hospital, and then was fetched by her husband to go to a police station, where statements were given.

5. The appellant was represented at the hearing by counsel. She vigorously and very fully cross-examined both these witnesses.

6. The appellant then gave evidence. His story, if I may put it very briefly, was that in the lift lobby the abuse was instigated by the wife and he responded in kind, that the husband swore at him and that he responded in kind to that. The wife then stepped on his foot and made as if to hit him whereupon he lost his balance and in trying to fend off her slap, he may well have connected with her face. He said he was carrying a brief case in one hand and an umbrella in the other, and could not have slapped the wife in the circumstances she described. The husband and wife had accepted that the appellant had a brief case, but the husband said it was strapped to his shoulder. They could not remember if he carried an umbrella.

7. Cross-examination of the appellant was extraordinarily brief and inadequate in that all of the prosecutor did was to seek to put the prosecution case. The magistrate discouraged her from a detailed exercise of that kind by telling her that she could merely put the matter very broadly, suggesting that in so far as the two accounts differed, the Crown case was the correct version. She did so and received the expected denial. There was no cross-examination beyond that; in other words, not one question designed to test the appellant's story.

8. The magistrate accepted the evidence of the two main prosecution witnesses and rejected the evidence of the appellant. His statement of findings is full, and as to the law is flawless.

9. Ms Yew, who has presented her client's appeal before me with clarity and skill, complains that the magistrate failed to take sufficient note of the fact that the husband admitted that he and his wife discussed the case, so that it is said that their evidence was tainted by collusion; for that reason, and also because they are husband and wife, and she drew my attention to a particular example, where upon the adjourned hearing, the husband appeared to be in a position to give a full explanation for a denial of a suggested part of the conversation between the parties in the lift lobby on the day in question.

10. I find there is no merit in the submission. No doubt if the two of them had said that they have not discussed the case, it would have been suggested that they must be lying. There is nothing wrong in prosecution witnesses in this situation discussing the case after the event and before trial. It would be very odd not to do so. What the magistrate had to do was to assess their credibility as witnesses, and this he did. He is a very experienced magistrate well able to assess whether there has been any sinister collusion between witnesses. As to the particular incident to which Ms Yew drew my attention, I see nothing sinister in the matter at all. It was drawn to the magistrate's attention in any event, and no doubt he had it well in mind. As I say there is, in my judgment, nothing in this ground.

11. Then it is suggested that by telling the prosecutor to put her case broadly, the magistrate evidenced the fact that he already had made up his mind against the appellant. This too is a ground without any merit. By the time the appellant gave evidence, everyone in court knew full well and in the greatest detail what the contending cases were, and where precisely they differed. To require the prosecutor in those circumstances to put each aspect of the Crown case would have been an exercise in complete artificiality, and a waste of time.

12. Then it is suggested that in the absence of proper cross-examination, the court was bereft of any material upon which to decide, as in fact it decided, that the appellant's account was untrue. The paucity, indeed the complete absence, of cross-examination to test the appellant's evidence was, I agree, extraordinary. But it does not follow that the magistrate was bound somehow therefore to accept the appellant's account or to doubt the account of the complainant and her husband. It was clear that the appellant's account was not by the absence of cross-examination accepted by the Crown. The appellant had through his counsel cross-examined the prosecution witnesses fully, knowing completely what the prosecution case was. And in his own evidence, he had been given the opportunity fully to answer the details of the Crown case. In the circumstances, the failure to test his evidence in cross-examination, in no way vitiates the magistrate's determination of the case.

13. It is said today that there is nothing in the statement of findings by the magistrate which spelt out why he believed the prosecution witnesses and disbelieved the appellant. It is self-evident that there was one issue in this case only and that was that of credibility. It was not in my judgment in the particular circumstances of this case necessary for the magistrate to articulate some incantation about demeanour and probabilities. He had seen and observed the witnesses and was perfectly entitled to come to the conclusion that he did.

14. There is, accordingly, in my judgment, no merit in this appeal, and it is dismissed.