HKSAR v. ONG CHUN YING

HCMA 897/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 897 OF 2005

(ON APPEAL FROM TMCC 944 OF 2005)

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J U D G M E N T

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1.  The appellant was convicted in the magistrate’s court of one charge of assault occasioning actual bodily harm and was sentenced to 6 months imprisonment.

2.  He now appeals against conviction.

3.  The prosecution case relied on two prosecution witnesses PW1 and PW2.  The evidence against the appellant may be summarized as this.

4.  PW1 knew the appellant.  In the early morning of 30 January 2005, while PW1 was in a park with some friends, the appellant telephoned PW1.  As a result PW1 went to a flat in Yuen Long.  PW1 said she had been there before with the appellant and she assumed that the flat belonged to the appellant.  PW2 also went there but not at the same time.  There, the appellant, PW1 and 2 played video games.  At some stage, at the request of the appellant, PW1 left the flat to feed the parking meter and at the same time, she went back to the park to meet her friends.  After she went back to the flat, she continued to play video game with the appellant.

5.  Sometime later, the appellant had an argument with PW1 and dragged her into the toilet.  The appellant punched and kicked PW1 and pushed her into the bowl of the toilet.  Afterwards the appellant pulled her back to the sitting room and threatened her with a pair of scissors by holding it against her fingers.  PW2 was there when the beating took place.  She asked the appellant not to beat PW1 any more and the beating stopped.  PW1 wanted to leave but she did not dare to do so and she stayed in the flat until the following day 31 January 2005.

6.  When she went back home, she dared not tell her family about the assault.  She slept until the following morning, 1 February 2005 when her sister took her to the Yuen Long Police Station to make a report.  She was examined by the doctor on the same day and found to have some tenderness over her forehead, laceration wound over her lower lip with discharge, some tenderness with swelling over her right knee, and over her left forearm and upper back but without swelling and bruising.

7.  PW2 witnessed the whole incident of assault.  She said she saw how PW1 was beaten and pushed into the toilet bowl by the appellant and how he pointed the pair of scissors against PW1’s hand.  The assault stopped after she intervened.

8.  The case of the appellant was that he was a tradesman as well as a social worker.  PW1 told him she came from a broken family and had been beaten by her parents.  PW1 called him and told him she wanted somewhere to stay.  He then called his friend PW3 who agreed to let PW1 and 2 stay at his flat.  On the night in question, the appellant took PW1 and 2 to the flat.  He stayed there for only half an hour and then left.  PW3 said after the appellant left, PW1 and 2 went to bed.

9.  The following morning, when PW3 woke up, PW1 and 2 were gone but he discovered his hand phone was missing and he told the appellant about it.  The appellant then confronted PW1 about the missing phone.  PW1 admitted she was responsible for it.  The appellant then met PW1 and 2 at a Mongkok park where they asked him not to report the matter to the police.  There PW2 slashed her wrist in his presence and the appellant stopped her and called the ambulance.  The police came but he did not give his name to the police.  The appellant’s evidence was when he saw PW1 on the night when she asked for help, she was already injured.

10.  The appellant maintained that in the morning of 31 January 2005, he met DW2 in Kowloon to discuss a business matter with DW2 and DW2 gave evidence in support of this meeting with the appellant.

11.  The magistrate accepted the evidence of the two prosecution witnesses and rejected the evidence of the appellant and his witnesses.  On the evidence of the prosecution witnesses the magistrate convicted the appellant.

12.  There are several grounds of appeal.

13.  The first ground of appeal is the magistrate failed to deal adequately with the very serious and material discrepancies between the evidence of the prosecution witnesses and the statements they gave to the police.

14.  On this ground counsel for the appellant said that the magistrate failed to deal with the discrepancies in the areas about the time of arrival and departure of the prosecution witnesses in the flat and in particular about the scissors.  The witnesses agreed they did not mention the scissors in their police statements but they mentioned it in court and attributed their failure to their lapse of memory.  It is submitted that this should have led the magistrate to doubt their credibility.

15.  The second ground is that the magistrate failed to take into account their evasiveness and their refusal to answer question by saying they could not remember.  Counsel submitted that their repeated claims of loss of memory should cast a doubt on their credibility.

16.  The third ground is that the magistrate failed adequately to deal with the reason why PW1 made no attempt to leave the flat after she had been seriously assaulted by the appellant and instead remained in the flat to have a meal with the appellant and played mahjong.  The extraordinary story of the witnesses should have raised a doubt on their credibility.

17.  The fourth ground is the magistrate’s finding that while not rejecting the alibi of the appellant, the appellant could still have committed the assault at the material time.  Counsel submitted that this finding did not accord with the evidence.  He submitted that the witnesses’ evidence showed that the appellant had been in the flat all the time and had not left the flat in that morning.  The alibi showed that the appellant was away from the flat from 10 a.m. to 11 a.m.  If the magistrate found he was unable to reject the alibi he should have found that there was a reasonable doubt that the appellant was not present at the scene at the time of the assault.

18.  The fifth ground is the magistrate asked too many questions, taking over the role of the prosecution.  Counsel referring to the case of R v Wu Chi Wai (1997 HKLY 272) and R v Yeung Mou Lam submitted that the Court of Appeal had frowned on a judge or magistrate sitting alone questioning an accused and the Court said that when it became necessary to do so, it should be done with circumspection and should not give the impression to a by stander that the judge had entered into the arena.

19.  The first three grounds may be dealt with together as they all concern the question of the magistrate’s assessment of the credibility of the prosecution witnesses.  The magistrate in paragraph 23 of his statement of finding analysed the evidence of PW1 and PW2 and the manner they gave evidence and considered their evidence in the light of the medical evidence.  As regards the discrepancies as to the timing of PW1’s visit to the flat, how she got to the flat, her previous visits to the flat as well as her temporary departure, the conflicts between the evidence of PW1 and 2 on the matter of the scissors and the sequence of events after the assault, the magistrate considered all of them in details.  The magistrate also said he had observed the prosecution witnesses giving evidence and he found them both to be “strikingly natural and spontaneous in their replies to questions” and neither of them had given “any hint of giving a contriving account of events designed to accused the defendant falsely of an assault”.  The magistrate’s finding was that the discrepancies in their evidence did not undermine the veracity of the prosecution witnesses.

20.  Although the magistrate did not specifically mention the discrepancies between the evidence of the witnesses and their police statements, and he did not particularly deal with the many answers to questions in the form of “I don’t remember” or in similar words by the witnesses, he had heard and saw them giving evidence and he must have all the evidence in his mind when he considered the veracity of the witnesses.  Having regard to the way he analysed the evidence and the way he described the witnesses giving evidence, his assessment that the witnesses are truthful witnesses is a finding of fact which cannot be flawed.  These grounds cannot stand.

21.  On the fourth ground, the magistrate said this regarding the appellant’s alibi, (paragraphs 40-41 of the Statement of Findings):

“I have already said that I do not reject his account and that of DW2 that they were together at a restaurant in the mid morning of 30 January, despite some oddities in their account.  It is to be noted that the defendant had a car outside the Yuen Long flat.  He was a few minutes’ drive from Kowloon.  The girls gave some timing as to the arrival at the flat; the temporary departure by PW1, the assault and so forth.  But they were not able to be sure about timing.  They were never asked by the prosecution whether the defendant had left in the middle of the morning because, of course, the prosecution did not know the defendant’s alibi until it was given in court, there being no obligation to give an alibi notice in the magistracy.  Indeed Ms Wong indicated to me that the details of the alibi had been withheld in accordance with the defendant’s rights.

…. I am sure that the alibi does not undermine the allegation of violence by the defendant towards PW1.”

22.  The magistrate later added this (paragraph 43 of the Statement of Findings):

“It may be worth adding that the defence evidence of the defendant’s presence in Kowloon with DW2 related to the period between around 10 am to 11 am on Sunday 30 January.  PW1 believed that the assault had taken place at some point after she had returned to the flat at about 10 am from her trip out to see her friends at the playground and to feed the defendant’s meter.  It is also to be noted that the girls stayed at this flat until the next morning, the 31 (approximately 24 hours) and that PW1 said that after the beating she had slept until the morning.  She also said after the assault, mahjong had been played and a meal had been delivered and consumed.  It was plain that she could not be certain as to the exact sequence or the timing of those events”

23.  The magistrate finally said (paragraph 45 of the Statement of Findings):

“I was sure that any absence of the defendant from the flat for a period of time on the morning of the 30, in accordance with his evidence and that of DW2, did not undermine the PW’s account of the assault.  As I have earlier remarked, they were not asked by either the prosecution or the defence if act any time the defendant had left the premises for what would, with travelling time, have been about two hours and, if so, how that related to the time of the assault”.

24.  The magistrate appeared to have accepted that the appellant’s absence from the flat during the period of 10 a.m. to 11 a.m. on 31 January 2005.  He had also taken note of the evidence of PW1 in cross-examination that the assault seems to have occurred a little while after she returned from seeing her friend in the park and after she played video-games for 10 minutes.  If this evidence is correct, the assault occurred between the hours of 10 a.m. to 11 a.m.  However, the magistrate, as he said in paragraph 45, did not accept the evidence of PW1 as to the timing of the assault.  He accepted that although PW1 was not sure as to the timing of the assault, the assault did take place during the period shortly after 10 a.m. and it was the appellant who assaulted her.

25.  In view of the fact that the magistrate had considered the evidence of PW1 in cross-examination and concluded that she was not sure of the timing of the assault, his findings that the appellant’s alibi did not undermine the veracity of PW1 and PW2 cannot be questioned.

26.  As to the fifth ground, the transcript shows, indeed that the magistrate had asked a number of questions in the areas pointed out by counsel for the appellant.  However, on a closer examination of these questions and the answers thereto, the questions put by the magistrate to the appellant do not give the impression that the magistrate had taken over the conduct of the prosecution case.  These questions go no more than clarifying the matter at issue and they neither undermine nor assist the appellant’s case.  They do not have the effect suggested by counsel for the appellant.  The magistrate had not overstepped the mark in the conduct of the trial.  In all the circumstances of the case, there is nothing which gives the impression that the appellant did not have a fair trial.  This ground fails.

27.  For the reasons stated above, the appeal is dismissed.