HKSAR v. CHEUNG SIU CHUN

HCMA 1135/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1135 OF 2002

(ON APPEAL FROM NKCC 6513/2002)

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J U D G M E N T

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1. I am going to have to dismiss your appeal against this conviction, and let me explain to you why now. You were convicted, as you well know, of common assault. The victim was your friend, and I need not set out all the facts, you know them perfectly well. What it amounted to is this, that she said you pointed to her in circumstances where it was obvious that you were setting on four youths to hit her.

2. The Magistrate believed her. You did not give evidence. There was nothing to contradict her account in evidence therefore, or if it was not to be contradicted, nothing to explain the conduct she described. Let me explain this. The court is bound to act on the evidence. And I am today, even though I receive that evidence at second hand, on paper. And the evidence is all one way.

3. And as I have said to you when we have been dealing with the appeal, imagine two football teams playing a football match. Just like in court, it is an adversarial system; one side against the other. You just imagine how easy it is for one side to score a goal if the other team does not come out to play on the pitch. Not many teams, however bad they might be, can miss an open goal without a goalkeeper in it. And I hope that example illustrates to you what the consequences were of your decision not to give evidence. And today you frankly admit before me it was your decision not to give evidence because you did not want to escalate the matter and, to use your phrase, you "did not want to say so much."

4. I have read the long, written submission that you have handed in, which has all the hallmarks of having been drafted by a lawyer, probably the one who represented you below. Carrying on the footballing analogy, what it does, in effect, is to describe some bad play by the only team on the pitch. And it points out, on occasions, their play might have been characterised as pretty poor and that on one occasion they did not actually manage to get the ball into the open net but, at the end of the day, this is just criticism of a side that was playing without opposition. And the criticisms that are available, such as the inconsistencies and the like that are pointed to, they are not sufficient, without any evidence in contradiction, to demonstrate to either the Magistrate or myself that the lady was telling lies or was incapable of belief.

5. As to the inconsistencies, the Magistrate was aware of them. I agree with him that they are not such that they make the witness unbelievable when she says it was you who set those youths on to her. Like the Magistrate, I take into account the fact that the victim could not say for sure what your motive was. But motive is not one of the ingredients that the prosecution had to prove at the trial. But, in any event, the cross-examination of the witness, even though that was not evidence itself, demonstrated that there may have been some financial dispute between the two of you and, certainly, the witness believed that there was a financial dispute between you and a friend of hers. If that was the case, even though she could not say it must have been - obviously it was just an inference that was available to that witness - there would be some credible motive.

6. The other line of attack that is made in the written argument is to say that the Magistrate should not have drawn the inference that you were acting in concert with the young men who carried out the assault. All I need say about that is that the inference was overwhelming in the absence of any evidence to contradict the conduct the victim described or to explain it. What is one to think if the evidence is that you were with the people who carried out the assault and that you pointed at the victim and said, "That's the person" and they thereafter assault the person pointed out?

7. This may have been a different case if the Magistrate, and therefore second hand this court, had been presented with a conflict to resolve. I want to make it clear that I have well remembered the burden of proof and there is no burden on you to prove anything and the fact that you did not give evidence is, of itself, no indication of guilt. But the decision meant there was no real contest. In those circumstances, I confirm the order the Magistrate made.