HKSAR v. TSANG CHUN KIT

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 650 OF 1997

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on three charges: one of Criminal Damage, one of Assault Occasioning Actual Bodily Harm and one of Assault Occasioning Grievous Bodily Harm. He was represented at trial which was conducted in Cantonese. The transcript and Reasons for Verdict which were in Chinese were translated by the Appellant's representative for the purposes for this appeal and certified by the court certification service.

2. The brief facts of the prosecution case were that PW1 was working in a shop where he was a salesman. The Appellant came in and damaged the glass of a desk and a showcase with a metal pipe uttering threats as he did so.

3. He tried to strike PW1 with the pipe. PW1 warded off the blow and his right hand was injured. At that stage PW2, who was the 1st witness's nephew, returned from the toilet, saw the struggle, and was himself attacked by the Appellant. There was a struggle, eventually the Appellant was subdued and a report made to police. The 2nd witness's right little finger was broken as a result of the struggle.

4. Appellant's account was that he had been lured to the shop under a pretext that PW1's younger brother, Lau Wai-nam, would meet him there to repay money that he owed the Appellant. When the Appellant asked to see Lau, PW1, PW2 and two other males who entered the shop, beat him up so that he "went into shock". He received bruises and abrasions which were detailed in a medical report.

5. A number of grounds of appeal put forward, only one of which gave me pause. The first had four aspects. The first was that the learned Magistrate erred in drawing incorrect or dubious conclusions of a medical nature without the benefit of expert medical testimony. Having read the transcript, I cannot see that the Magistrate drew such incorrect conclusions. He had the benefit of medical reports. He heard the witnesses and Appellant detail the alleged causes of the various injuries. He stated PW1's injuries as being bruises to his right hand and PW2's being a bone fracture. He was aware of the more comprehensive bruising and abrasions caused to the Appellant. I cannot see that he drew any incorrect conclusion in his findings.

6. The second ground was that he failed to deal with inconsistencies in the prosecution case and resorted to speculation to excuse or minimise them. The Magistrate was clearly aware of inconsistencies in the prosecution evidence and dealt with them in his findings. His analysis of the evidence at page 82 and page 90 (page references are to the translation) deals with the salient points and takes into account the differences between the 1st witness's evidence in chief and his statement to police as well as the conflicts with the Appellant's account of events.

7. A Magistrate is not required to go into minute detail in analysing the ramifications and permutations of evidence, or all the matters raised at trial. Nor is he required to set out his thought processes step-by-step. It is sufficient that he considers and analyses the evidence in a manner that makes his findings clear and ensures they have a rational basis.

8. There were no subtleties of evidence in this trial. This was a case where there was a direct conflict between the prosecution and defence evidence that had to be resolved by the Magistrate and ultimately that matter had to be decided on credibility. In considering the evidence, the Magistrate concluded that PW1 and PW2 were telling the truth about the incident.

9. The third ground was that the Magistrate failed to give full weight to the nature and degree of the injuries suffered by the Appellant but dismissed them without good reason. The Magistrate was quite aware of the extensive nature of the Appellant's injuries and how the Appellant said they were inflicted. He rejected, as he was entitled to do, the Appellant's account of 2 men joining PW1 and PW2 in an assault on the Appellant.

10. He stated that he did not accept that PW1 and PW2 had inflicted those injuries on the Appellant as alleged. He did not speculate further but it is implicit in his findings that such injuries were a likely result of the Appellant being subdued by the witnesses.

11. The fourth ground was that he failed to give proper weight to evidence concerning the metal bar, its shape, a newspaper wrapping it and the absence of fingerprints upon it. It was admitted in evidence that none of the Appellant's fingerprints had been detected on the newspaper that the Appellant had allegedly used for wrapping the pipe he used as a weapon. Given that there were no fingerprints, it is difficult to see what weight could be given to their absence, or why the Magistrate should speculate about their absence. The Magistrate had evidence before him from PW1 and PW2 as to the Appellant's alleged handling of the pipe and the newspaper.

12. The defence counsel in his submissions made garbled comments about the importance of the newspaper not being crumpled and not having fingerprints on it as casting doubt on the prosecution evidence. Clearly the Magistrate did not consider defence counsel's point a cogent one. I do not consider these grounds raise any matters that invalidate these convictions.

13. The second ground was that the Magistrate erred in law in that having heard evidence of the existence of the Appellant's previous conviction, he failed to consider whether he should excuse himself from the trial or invite counsel to address him on this issue. Further instead of directing himself to ignore the Defendant's previous conviction, he erroneously admitted it into evidence and relied upon the same as evidence of motive in proving guilt.

14. I looked at both these grounds together because the manner in which the conviction came to light at trial, and the way it was dealt with thereafter, must be examined. It appears that Appellant was convicted in December 1996 of Criminal Intimidation and sentenced to 2 months' imprisonment suspended for 2 years. The victims were the prosecution witnesses in the instant case who had given evidence in the case of criminal intimidation.

15. The prosecution did not attempt in any way to make this conviction, or the previous incident, any part of its case. However, during lengthy cross-examination of PW1, defence counsel asked PW1 why the Appellant should go to his shop and do such a thing i.e. the damage and assault "for no reason". PW1's answer was "I don't know. But before this incident, the court had already convicted the Defendant." The Magistrate properly warned PW1 not to refer to such things but the defence counsel continued to probe the matter further, resulting in the answer a few questions later "He always came. After being sentenced he always came too, that is after the previous case."

16. Now I note that at no stage did defence counsel object to this material being introduced. He did not ask the Magistrate to look at the matter then or to exclude this evidence but he continued to push for reasons from PW1 as to why the Appellant should behave "strangely". An overall reading of defence counsel's cross-examination indicates that he was in fact trying to elicit this information as part of his defence. PW1 again referred to the Appellant: "Well, he has already been in court." At page 30, the defence counsel asked: "Do you know his appearance in court last time was related to this incident?" and the witness said "I know." The next question was "It was also because the Appellant or the Defendant dunned your nephew for a debt?" The answer was: "I don't know." After those questions it must have been clear to the Magistrate that not only was defence counsel not objecting to that information being put before the court, but that he was anxious to elicit it for purposes which did not become entirely clear until later.

17. In cross-examination of PW2, the defence counsel returned to the same point (at page 50), "Do you know the Defendant had grudge with your younger brother, Lau Wai-nam?" "I know." (At page 51) "Last time do you remember you also appeared in a trial as a witness?" Answer "Correct." "Against the Defendant?" Answer "Correct." "A case about money?" Answer "A case about intimidation". The questions then continued on page 52.

18. By the end of this part of the cross-examination, the Magistrate would have realised why the defence counsel was choosing this course. It was to be able to suggest that PW1 and PW2 were lying in order to ensure that the Appellant was wrongly convicted of these offences, so that the suspended sentence imposed in the previous case would be activated. That conviction was now squarely before the court and the Magistrate was obliged to deal with it as part of the Appellant's defence.

19. At page 53, defence counsel's cross-examination of PW2 culminated in the question "Did you ever think of taking revenge?" and the answer not surprisingly was "No but he did take revenge because I had given evidence against him in court." The prosecution did not re-examine either of the prosecution witnesses on this aspect of the case.

20. The Appellant elected to give evidence. He made no direct mention of the December incident but in cross-examination in the light of what had been suggested to the prosecution witnesses, the prosecutor, not unnaturally, referred to "the incident in December" which, I note, was not a reference to the conviction as such.

21. At page 72, the Appellant introduced the matter directly when he stated, "The judge said "you can go down to ask him for repayment of money but you can't speak about the things like that." "At page 77 it was suggested that Appellant had beaten the prosecution witnesses and damaged the shop because PW1 and PW2 had given evidence against him in court and this was denied by the Appellant. It is hardly surprising that that matter was put to him by the prosecutor.

22. Overall, defence counsel deliberately elicited details of the December incident as background, to establish a likely reason for PW1 and PW2 setting up the Appellant for a wrongful conviction in the extant case, thus ensuring that the suspended sentence passed in December would be activated.

23. In those circumstances, the Magistrate if he had examined defence counsel as to why he was introducing this material would have been accused of interfering in the defence put forward for the Appellant. Once defence counsel had raised the connection between the protagonists of the December incident and the present case, the prosecutor of necessity had to deal with it as he did in cross-examination.

24. There being no complaint or query raised by defence counsel about this material supportive of the Appellant's defence being put before him, the Magistrate had to deal with it as well.

25. Mr. Jenkyn-Jones on the appeal referred the court to the authorities setting out the principles governing the general exclusion of references to bad character and for what purposes it can correctly be used. He did not refer in detail to the purpose that covers the present situation, that is where it is necessary to give evidence of the background to the offence or the background against which an offence is committed, even though to do so will reveal facts showing the accused in a discreditable light. Such revelations may be incidental to the offence charged, or germane to the enquiry into guilt.

26. In this case it was the defence which put into evidence the details of the incident leading to the conviction. Defence counsel did so because he considered it relevant to the Appellant's allegation that PW1 and PW2 had deliberately framed him.

27. I am satisfied that the Magistrate did not treat this evidence as being any more than background to the Appellant's defence. At Page 83 he commented that the Appellant's frank admission about the previous incident did not affect his credibility in any way, and he did not accept as it as an indicator of his motive or guilt, although he had to look at the question of motive which was germane both the Appellant's defence and, because he had advanced that defence, also to the question of PW1 and PW2's motives.

28. At page 90, the Magistrate said, "The Defendant accepted the judgment at the court and admitted his wrong. This did not undermine his credibility. But I do not accept the defence the 1st witness set a trap for him."

29. It would be an affront to common sense given the way the defence was conducted and the potentially prejudicial material elicited and relied on by the defence, to say that the Magistrate could not take it into account as he did, not as evidence of motive of the Defendant but as background supporting a motive for PW1 and PW2 to frame the Appellant.

30. I am satisfied having considered the evidence that these convictions are safe and I uphold the convictions.

Appeal Against Sentence

31. The Appellant also appeals against sentence. He was sentenced on the Criminal Damage charge to a fine of $2,000 and $500 compensation; to 1 month imprisonment on the Assault Occasioning Actual Bodily Harm and to 6 months imprisonment on the Assault Occasioning Grievous Bodily Harm. It was submitted on behalf of the Appellant that the starting point on the third charge was too high; that consecutive sentences on charges 2 and 3 were wrong in principle; that the Magistrate failed to pay heed to any of the mitigating factors advanced the Appellant; that the Magistrate erred in imposing a fine in addition to the sentences of imprisonment given Appellant's financial circumstances as disclosed to the Magistrate, and that the totality of the sentences, including activating the suspended sentence, was too severe.

32. It is not correct that the Magistrate ignored the mitigating factors. The mitigation can only be described as inept and barely worthy of the name. The only matters put before the Magistrate were that Appellant was earning $10,000 a month, that he was supporting his girl-friend and daughter, that there was an underlying money dispute behind the incident and that Appellant had suffered injuries. That was the sum total of the mitigation.

33. None of those matters was mitigatory of the offences and the Magistrate imposed appropriate sentences for each charge. The Appellant was represented and it was not the Magistrate's task to investigate the basis for further mitigation.

34. These were separate and distinct assaults against PW1 and PW2, the Magistrate was not obliged to order them to be concurrent. He rightly took account of the lesser nature of B charge of assault in imposing the sentence of 1 month. His starting point on the more serious charge, the third charge, cannot be faulted. His starting point was also his final point on this charge because the Appellant could not claim any discount for plea, nor be given credit for a clear record. Although only the Criminal Intimidation conviction was referred to at trial, Appellant had a similar offence of AOABH in 1996; some minor gambling convictions; a Disorderly Conduct conviction in 1992 and a Robbery in 1982 for which he was sentenced to 5 years imprisonment.

35. As for the suspended sentence, Appellant had been given a chance by the court to keep out of further trouble and had deliberately abused that chance. Not only had he committed a further offence mere months after the suspended sentence was imposed, but he had chosen to commit further offences by re-opening the dispute with the same people who had been the target of the criminal intimidation.

36. The courts take a particularly serious view of cases relating to debt-collectors who use bullying or violence to obtain payment of debts owed either to themselves or to others. These sentences are entirely appropriate and the Appellant will serve them immediately.