HKSAR v. CHEUNG WAI-KWONG

HCMA 1214/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1214 OF 2001

(ON APPEAL FROM WSC 8625/2001)

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J U D G M E N T

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1. On 30 October 2001 the appellant was convicted after trial at Western Magistracy of an offence of common assault and he was fined. He appealed against his conviction.

2. On 21 March of this year, after hearing argument from counsel, I allowed the appeal; quashed the conviction and set aside the fine. I declined to order a retrial and refused the applicant's application for costs. I said at that time that I would give my reasons in writing at a later stage and these are my reasons.

3. Although the point at issue was a narrow one this judgment needs must, in my view, be somewhat lengthy to do justice to all parties and to the labours of both Mr Shiu, who appeared as counsel for the Respondent, and Mr Bruce SC who appeared as counsel for the appellant (to both of whom I am indebted in particular for their written submissions) and because the point taken on appeal is an important one.

4. In his 'statement of findings' the learned magistrate had this to say:-

"On the 30 October 2001 the defendant was convicted of an offence of common assault and fined. The court gave full reasons for the conviction and fine on the day and cannot usefully add anything further."

5. I turn then to those reasons which the magistrate gave on the 30th October. What he said on that day was this (and I have underlined those three parts which are relevant to the appeal given the absence of any comment or direction from the magistrate concerning the evidence adduced at trial about an event which preceded the date of the offence of which the appellant was convicted). The event to which I refer took place on 16 June. The date of the alleged offence was 30 June.

"COURT: The defendant is charged with one offence of common assault. The prosecution case is that at about 2.40 pm on 30 June this year, at The Belcher's residential development in Belcer's Street, Western, in Hong Kong, the defendant assaulted a junior member of an investigating team sent out by the Estate Agents Authority.

The manner of the alleged assault is that the defendant laid his hands, one on each shoulder, of the victim, Poon Chi-leung, and applied downward pressure. Immediately before and at the time of that physical contact the defendant was uttering words to the effect that should there be any complaints against him he would 'get' both the victim and also PW2, who gave evidence.

The defendant's version is straightforward. He does not deny that there was an exchange, perhaps a heated exchange, with representatives from the EAA but he denies strongly that there was any physical contact between he and the named victim. He has brought along today two of his estate agent friends to say the same thing.

This is a criminal case. As ever, the burden is with the prosecution to prove the ingredients of the offence to a standard from which the court can be sure, and nothing less will do. The defendant has nothing to prove. In assessing his credibility I have taken into account his clear record, and that is also relevant as to the likelihood of him having committed this or, indeed, any other offence.

The prosecution case turns wholly on the credibility of PWs 1 and 2. I have no doubt and less hesitation in finding that PW1 has given a plain and unvarnished account of the events which occurred at about 2.40 pm on the date of the charge. It is said that there are inconsistencies between what he has said and the version given by PW2 and also discrepancies between both of their evidence in court and what they might have said to police officers. If there are any differences, they are, in my view, immaterial.

In nearly every case which comes before the court, witnesses' evidence in the witness-box comes out in a slightly different way to how it was given to the police. They are being asked questions in a different way, from a different perspective, and they are, of course, faced with giving answers in the crucible of a witness-box. In those circumstances it is hardly surprising that there are variations.

I have listened to the defence's submission that perhaps their evidence was cross-contaminated when they both gave statements to the police at the same time. I reject that submission. Their evidence was not a collusion. The reason that they did not go to the police immediately was because it was only after reaching their offices after the events as I have heard described, was a decision made that this matter should be reported to the police, bearing in mind the defendant's outrageous conduct against PW1 on an earlier occasion.

Finding, as I do, that PW1 and PW2 have given truthful evidence, it follows that I disbelieve the evidence of defence witness 2 and defence witness 3. If they were there at the material time, they were mistaken about what they saw and I bear in mind that the earliest that they were asked to recall the events of 30 June was not sooner than four weeks afterwards.

I ask myself how it is that they could remember so clearly an uneventful afternoon so long after the event. Another view of the defence witnesses, and I remind those in attendance that I have had the opportunity of observing their demeanour in the witness-box, is their evidence and that of the defendant is no more than a colluded composition of lies, distortion and exaggeration.

Be it mistaken or be it lies, neither the defendant nor any of his witnesses are reliable witnesses of fact. The prosecution evidence has satisfied me to the required standard that at the material time this defendant laid hands on the shoulders of PW1 and with downward pressure applied force. That force, however slight, accompanied, as it was, by threats directed to the victim, was unlawful and is sufficient to constitute the offence of common assault.

For those reasons, which are exhaustive and complete, you are convicted of the offence."

6. And the question which arose on this appeal, simply stated, was:

"Were those reasons exhaustive and complete?"

7. The perfected grounds of appeal settled by Mr Bruce were these:-

"1. There was a material irregularity in the trial because the Learned Magistrate took into account conduct attributed to the Appellant and directed to or at the alleged victim of the first assault which had occurred on an occasion earlier than the charges the subject of the Information before the Learned Magistrate. The conduct attributed to the Appellant was characterised by the Learned Magistrate as 'outrageous'. While it is accepted that the conduct to which the Learned Magistrate referred could fairly have been characterised as 'outrageous', it was either an unlawful act or, if not unlawful a seriously wrongful act and, if true, in either case reflected badly on the Appellant. It reflected badly either as to his credibility as a witness of truth or as a fact rendering him more likely to have committed the assaults the subject of the Information. The evidence of that conduct was inadmissible and should not have been taken into account by the Learned Magistrate at all or, if it was admissible for some collateral purpose, the Learned Magistrate failed to expressly or impliedly direct himself in a manner which made it plain that he did not take it into account in a manner that might adversely affect the credibility of the Appellant or that it rendered the Appellant more likely to have committed the assaults the subject of the Information.

2. By reason of the foregoing, the conviction is unsafe and unsatisfactory."

8. I now come to the submissions of counsel. In his skeleton argument, Mr Bruce had this to say: -

"(a) [during the trial] it was common ground that there was a confrontation between the appellant and the victim. The real issue in the case was whether there was an assault. In order to resolve the issue, the learned Magistrate had to resolve direct conflicts of evidence between the first and second prosecution witnesses and the appellant. In short, credibility was everything.

(b) Identification was not in issue.

(c) In effect, if the first and second prosecution witnesses were credible then there was a proper basis for the Magistrate finding 'that the defendant laid his hands, one on the shoulder, of the victim, and applied downward pressure'. On any view, that constituted common assault. The case for the appellant was that there was 'an exchange, perhaps a heated exchange with representatives from the [Estate Agents Authority]' but there was no 'physical contact between [the appellant] and the named victim.' The appellant testified and called two witnesses to support his version of events.

(d) ..... The learned Magistrate observed that the case turned wholly on credibility of the first and second prosecution witnesses. In one respect that is correct in the sense that if these witnesses were not credible that would have been the end of the case. However, the learned Magistrate had to consider the testimony of the appellant and the impact that this had on the credibility of the prosecution witnesses. It may be that he did this in his consideration of the credibility of the first and second prosecution witnesses. However this is not a matter of mere semantics because of the reference to the "outrageous conduct" of the appellant.

(e) The earlier conduct of the appellant could conceivably have been admissible for a number of purposes. It could have been admissible had identification been in issue. It could have been admissible if the prosecution had sought to use it as similar fact evidence. It could also have been admitted had there been an attack on prosecution witnesses that came within section 54(1)(f) of the Criminal Procedure Ordinance, Cap 221. In any of these events, most likely the Magistrate would have gone through the exercise of carefully balancing the probative value of such evidence against the prejudicial impact that it might have had. Indeed, there is an abundance of authority to support the proposition that where a professional tribunal (such as a Hong Kong Magistrate) does admit such evidence, he or she can be trusted to exclude the prejudicial impact from consideration. What is significant about the authorities in this regard it is they were decided against the background of an explicit attempt to tender such evidence coupled with a ruling following an objection upon the basis that the probative value of the evidence was outweighed by its prejudicial impact. In all of the authorities where this has arisen before a professional tribunal of fact, the tribunal clearly adverted to the difficulties.

(f) That is not the situation in the present case. Here, the matter appears to have arisen as an explanation as to why the first and second prosecution witnesses did not report the incident to the police at a particular time. The reason given was because of the earlier "outrageous conduct" of the appellant. There is no suggestion in the statement of findings or during the course of the trial that anyone including the learned Magistrate ever adverted to the prejudicial impact of this piece of information. On any view and however it was understood, it would appear that the appellant was viewed by the Magistrate as such a bad person, or his conduct was sufficiently bad or intimidating that this caused the first and second prosecution witness (and the Magistrate considered them to be credible people) to delay doing something which a normal person would do and, indeed, would have no fear in doing. Indeed, it is submitted that in many respects the learned Magistrate in accepting the explanation of the first and second prosecution witness for their omission to go to the police was accepting the prejudicial effect of the earlier outrageous conduct.

(g) It is plain from the unqualified or unexplained reference to the "outrageous conduct" that this expressly contradicts the entirely proper and beneficial reference to the previous good character of the appellant. In effect within the space of one or two paragraphs the Magistrate is giving the accused credit by reason of his previous good character to have been less likely to have committed the offence and to be a more credible witness, and then to say that he is so bad or intimidating that he caused credible members of the community to not go to the police at a particular time at which they would have been expected to go there.

(h) Ordinarily, it would be difficulty for the appellant to resist the argument that a professional Magistrate can be trusted to exclude prejudicial material from his mind. In A-G v Siu Yuk-shing the Privy Council considered the position where a judge tries the case sitting without a jury. This arose in the context of whether the probative value of certain similar fact evidence was exceeded by its prejudicial effect. The Privy Council observed:

"The risk of such prejudice overbearing the probative value of evidence is of infinitely less significance when a case is tried by a judge alone. The judge must of course guard against any such result but his whole background and training have fitted him to do so. In a trial by judge alone, the exercise of excluding the evidence on the grounds of prejudice becomes somewhat unreal when it is remembered that the judge must be informed of the nature of the evidence in order to rule upon whether or not it is admissible. If the judge having ruled it inadmissible is to be trusted to put the evidence out of his mind he can surely be trusted to give it only its probative, rather than its prejudicial, weight if he rules that it is admissible."

(i) Two points should be noted from A-G v Siu Yuk-shing. The first is that the Privy Council says that professional judges and magistrates should guard against the danger of prejudice. That carries with it the clear implication of a requirement for an express or explicit form of guarding. Second, the first proposition is reinforced, it is submitted, because of the fact that the observations of the Privy Council come against the background of a judge having expressly ruled on the admissibility of evidence. Certainly there is no suggestion by the Privy Council that professional tribunals are immune from the effects of such prejudice. Hence the need to guard against such prejudice.

(j) However, in the instant case, not only is there no explicit basis for saying that the learned Magistrate guarded against the risk of prejudice, there is at least the possibility that the Magistrate positively used the prejudicial material to the detriment of the appellant. Certainly there is no explicit (and the appellant would say implicit) recognition of the prejudicial impact of the evidence about the earlier conduct of the appellant. In this regard, the appellant makes two submissions. The first is that where previous illegal (or, if not illegal, seriously bad) conduct of the accused is admitted into evidence, a Magistrate must advert to the evidence in a manner which demonstrates that he has excluded from his mind the prejudicial impact of that evidence. No specific formula or set of words is required in this regard. If he does so, then on the authority of A-G v Siu Yuk-shing, it would be at least difficult to resist the conclusion that the Magistrate had successfully excluded such material from his mind. By contrast, where he makes no such reference then there exist grounds for suspecting that the material was not used properly. This is because such evidence is quite insidious in its effect. The appellant submits that this is more so with this type of evidence. Put another way, this is not merely inadmissible evidence. This is recognised in the authorities even where the tribunal has adverted to the prejudicial impact of the evidence. This must be even more so, it is submitted, where the evidence of previous misconduct has been used in the case.

(k) The authorities in this area stress the danger of this type of evidence. While there are some interesting doctrinal arguments as to whether there is a difference between the English and Australian authorities on the topic, on one thing they are unanimous: that this form of evidence must be handled with great care because of the clear potential prejudicial impact of such evidence. To make good this point reference is needed only to the leading authorities on the point:

* DPP v P [1991] 2 AC 447

* Pfennig v R (1995) 77 A Crim R 149

(l) Reference is also made to R v Tsang Wai-ki [1996] 2 HKC 111, the Court of Appeal held that evidence of previous criminal conduct which demonstrated propensity only and did not meet the stringent tests for admissibility as similar fact evidence was inadmissible on the basis that it was not relevant. Stuart-Moore J for the court observed that, in relation to a case in which it was alleged that the accused was trafficking in dangerous drugs, evidence that the accused was an addict, when adduced by the prosecution as part of its case, was irrelevant.

and

(m) The impact of the evidence of previous misconduct was to leave open the conclusion that the appellant was a man who was prepared to intimidate officers of the Estate Agents Authority and rendered the version of the first and second prosecution witnesses more likely."

9. In response to the submissions of Mr Bruce Mr Shiu said this:-

"(a) ... The 16 June evidence was relevant to both the prosecution and defence case. Both parties did not use the evidence for the purpose described in paragraph (f) of the Appellant's submission and if the magistrate used it for the paragraph (f) purpose, this was not his main or only purpose. As a general rule, all relevant evidence is admissible. However, an explanation of what is relevant is required. Phipson 'On Evidence' has stated at 7.01 stated relevancy as :

"... the facts which may be proved in a judicial inquiry are facts in issue and facts relevant to the issue; and any facts, whether relevant to the issue or not, which affect the legal reception or weight of the evidence tendered".

(b) The evidence of 16 June was relevant and admissible on two bases:-

(i) Facts relevant to the issue; and

(ii) facts relevant to the issue or not, which affect the legal reception or weight of all the evidence tendered.

Phipson at 7.02 explains that (i) above that is, facts relevant to the issue, "are facts which render probable the existence or non-existence of a fact in issue or some relevant fact."

(c) The Respondent respectfully submits that clearly the 16 June incident was relevant to proving why PW1 and PW2 knew the Appellant and therefore approached them in an aggressive manner on 30 June.

(d) It was relevant to indicate the ill feeling that the Appellant seemed to harbour against PW1 and PW2 and thus supply a plausible motive for his sudden assault on PW1.

(e) The 16 June incident explained the meaning to the words uttered by the Appellant very shortly before he assaulted PW1. The meaning of these words was relevant for motive and were part and parcel of the assault.

(f) The above examples of relevancy, are all facts relevant to the issue as they render probable the existence of a fact in issue, that is, the 30 June assault.

(g) The second bases of relevancy here (ii), is that the testimonies of the 16 June incident by various witnesses were compared to each other to test the reliability of the witnesses and what weight to give their respective evidence. In fact, the then Appellant's counsel invited the magistrate to make this comparison. He submitted that there were material discrepancies and these showed that PW1 and PW2 colluded together and were lying.

(h) It is clear the case turned on the credibility of PW1 and PW2 and as he gave evidence, to some extent, the credibility of the Appellant. The Magistrate was aware of this and turned his attention to the alleged inconsistencies of the prosecution witnesses. He would have used the relevant and admissible evidence of 16 June to test the reliability of the prosecution witnesses.

(i) The use of the word 'outrageous' to describe the Appellant's 16 June conduct could not be characterised as reflecting that his determination of the issues before him was wrongly based on evidence that was more prejudicial than probative. That evidence was probative for the reasons given and its prejudicial impact (if any) slight.

(j) There is no indication of the Magistrate using the evidence improperly. It is not correct to say that there is any indication that the Magistrate used it to draw a conclusion that the Appellant had a bad character, so much so, that "he caused credible members of the community to not go to the police at a particular time at which they would have been expected to go there".

(k) The tenor and weight of the evidence was not to lead one to draw the conclusion that "the Appellant was a man who was prepared to intimate officers of the Estate Agents Authority and rendered the version of the first and second prosecution witnesses more likely". By the earlier analysis of the evidence in his submission, it is demonstrated that the evidence was adduced properly and for proper purposes that must have been apparent to all in court. It is not the case that you would believe PW1 and PW2 in regard to 16 June and use the Appellant's misconduct then, to draw conclusions about his character and therefore make conclusions to the truth of what happened on 30 June. It is inconceivable in the circumstances of this case that is what occurred; or that there was a reasonable danger of this occurring. The evidence of 16 June was integral to 30 June; but because the facts were relevant to the facts in issue and because they affected the weight of all the evidence tendered; not for any improper use of character."

10. It seems to me that the questions which arise from all of this are these:

1) Was the evidence in question admissible and, if so, should it have been admitted?

and

2) Assuming, for the moment, that the answers to those questions are in the affirmative, was the learned magistrate obliged (in his statement of findings) to make reference to the possible prejudice flowing from the admission of that evidence to demonstrate that he was both aware of it and that he had guarded against it?

11. It seems plain from the court papers available to me and from what counsel said to me during the hearing of this appeal, that during the trial nobody (including the learned magistrate) gave the question of the admissibility of the evidence of what happened on the 16 June a thought. Nor did they give the question of the possible prejudicial effect that might flow from it, a thought.

12. Certainly no objection was raised by the defence which, with the benefit of hindsight and the arguments of Mr Bruce, is perhaps somewhat surprising. There being no objection and the learned magistrate not raising the issue it follows that there were no submissions and no argument about the question of admissibility. The evidence was, as I have said, admitted and clearly acted upon by the magistrate in a number of ways in determining the credibility of the witnesses and the guilt of the appellant.

13. Whilst it is wholly arguable whether or not the evidence was admissible - and in my view it should have been argued - I am not in a position to say whether it was or whether it was not, albeit that I lean towards Mr Chiu's view of the matter. Nor am I in a position to say whether the evidence, if ruled admissible, should have been admitted. That was a matter entirely within the province of the magistrate.

14. What I am in a position to say is this. I agree with Mr Bruce that the learned magistrate's acceptance of the evidence and his use of it, inter alia, rendered wholly meaningless the character direction which he purported to give himself.

15. I am entirely satisfied, upon the arguments presented to me, that there was a material irregularity in this trial in that "prejudice was not clearly guarded against." Perhaps, as Mr Bruce concedes, only a short sentence in the magistrate's statement of findings to the effect that he was alive to the problem would have sufficed, but the complete absence of any mention of it at all clearly suggest that he was not. Perhaps too, although this is more questionable, had the question of admissibility been raised by the defence at trial (in which case the magistrate would have been alerted to the problem) he could properly be deemed to have guarded against prejudice.

16. It was for these reasons that I allowed this appeal.