LEUNG SAI CHEUNG v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1062 OF 1987

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J U D G M E N T

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1. The appellant was convicted before a magistrate on three charges of assault occasioning actual bodily harm contrary to section 39 of the offences Against the Person ordinance, Cap.212.

2. The Crown's evidence, in very brief outline, was that at about 4.15 p.m. on the 17th July, 1987 ^-the second to sixth prosecution witnesses who were all off duty policemen ("the police officers") were at Butterfly Beach playing cards. Whilst there they were surrounded by a group of 5-7 male persons ("the group") who attacked them with oars and/or poles in the course of which two of the police officers PC45882 and PC46363 received injuries from the appellant who was wielding an oar.

3. The appellant gave evidence and said he was a life guard at the beach (this was not in dispute). He denied he was a party of any group or that he ever assaulted anyone. He said while he was on patrol duty he was assaulted by several persons and at the police station he identified PC45882 and PC46363 as two of his assailants.

4. The last set of Grounds of Appeal to be filed refer to eleven grounds of appeal. I am grateful to Mr. Hingorani for setting out his submission in writing.

5. It is not out of disrespect to counsel that I do not propose to deal with every ground of appeal.

6. The first ground was that the learned magistrate rejected the evidence before considering the case against him.

7. It is by no means uncommon, nor indeed in any way improper, for the magistrate in his Statement of Findings to deal first with the defendant's evidence. If the defence evidence causes him any reasonable doubts about an accused's guilt that would result in his dismissing the case. The magistrate in this case, after rejecting the appellant's evidence as not credible, then went on to say that it was for the Crown to prove its case and he then dealt with the evidence adduced by the Crown.

8. Ground 2 was that the magistrate stated in his Findings that he found that the appellant "tried to bluff his way through by telling me that he was the victim of an assault without giving consideration whatsoever to the injuries sustained by the appellant". The magistrate also said he found the appellant "a disingenuous witness". That is the impression the magistrate formed of the appellant. A magistrate is not obliged to say how or why he formed an unfavourable impression of a witness.

9. Ground 4 is that the magistrate failed to consider or state the reasons why he thought the appellant was "bluffing". It is not always easy for a magistrate or judge to state precisely why he formed a certain impression of a witness, and in my view, it is unnecessary for him to do so.

10. In CHAN King-man 1980 H.K.L.R. at page 114 the Court of Appeal said:

We were referred also to LAW Keung v. R., Cr. App. No. 625 of 1972, an appeal from the decision of a magistrate to the High Court in which the then Chief Justice expressed himself obiter on the obligation of a District judge, as follows :-

"As a matter of elementary justice, if a person is to be convicted of an offence, he is entitled to know the reasons why he is so convicted and where he has given evidence and called witnesses he is entitled to know way; and for what reason his evidence and that of his witnesses is disbelieved if indeed that is the case - or why the evidence of a prosecution witness or witnesses is preferred in the realms of credit and credibility to that of himself and any witnesses he may have called".

11. The Court of Appeal expressly disapproved of LAW Keung's case and said it was not to be followed.

12. The third ground refers to the failure of the magistrate properly to analyze the defence case and, Ground eleven of failing to consider the appellant's injuries in view of the magistrate's finding that the police officers did not "hit back or fight against anyone".

13. The fifth, sixth, ninth and tenth Grounds relate to discrepancies.

14. The learned magistrate in his Statement of Findings dealt, inter alia, with the Crown evidence and, in doing so he said that admittedly there were discrepancies in the evidence of PC45882 and PC23820 and he mentioned three of the more obvious ones. He said he had considered the discrepancies in the Crown's case but that "these were not so material or serious as to render the evidence unsafe or unreliable" and he went on to say that the discrepancies "high-lighted the very sudden and unexpected nature on the assault".

15. The magistrate made 26 separate findings of fact, some of which relate to evidence in which discrepancies occur. The magistrate, like a jury, is entitled to accept part of what a witness says and to reject other parts. It is essentially a matter for a magistrate, like a jury, to decide whether, discrepancies or not, he believes the witness.

16. In the case of R.v M MA Kwai-thong (1968) H.K.L.R. 654 at 656 Huggins, J. said.

"It is suggested, in particular, that even if one can interpret the words used by the learned magistrate as indicating that he believed the evidence given by the prosecution witnesses, it was still required of him to state what were the reasons for his belief. Mr Gunston has argued the matter on behalf of the appellant most forcefully, but I cannot accept that this is required under the statute. What is required is a statement of findings and nowhere does it say that the magistrate is required to give reasons for his findings".

the learned judge went on to say ;

"I do not say that in every case it is unnecessary for a magistrate to state why he believed a certain story. It may be that he comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will came to the conclusion that his finding of fact was unsafe and may therefore quashs the conviction".

17. In Reg. v. CHAN KING-MAN and others (1980) H.K.L.R. at page 113, the Court of appeal quoted with approval what the Full Court had said in R. v R.E. LOW (1961) H.K.L.R. 13 at page 82:

"The duty of a District Judge was fully dealt with by the Full Court in R. v R.E. LOW (quoted in R. v Godber (1975) H.K.L.R. 340) the effect of which was to rule that a District Judge, in setting out his Reasons for Verdict, is under no obligation to set out his mental processes in full. At page 82, Blair-Kerr, J. deals with the question as follows "

It was contended by Mr HOW that a District Judge's statement of reasons for verdict prepared in pursuance of section 30 of the District Court Ordinance was comparable to a Judge's summing up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a Judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attached to every piece of evidence or the arguments of Counsel on the evidence or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence to that extent does he disclose how "the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge drams inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable". (emphasis added).

18. And see The Queen and CHENG Chung-hai and CHAD Ram-fai, Cr. App. No. 401 of 1987. That case, as well as CHAD King-man (above) and LEONG How-seng 1982 H. K. L. R.245 refer to District Court decisions.

19. In LAI Yuk-kui and The Queen (1931) H.K.L.R. at page G93, Roberts, C.J. refers to CHAN Ring-man and others and The Queen (above) and says that the passage quoted extends to magistrates.

20. Section 80 (formerly section 30) of the District Court Ordinance provides:

"Before pronouncing judgment, a judge shall record his verdict and, at the same time or so soon thereafter as may be, shall also place on record a short statement of the reasons for the verdict."

21. Section 114(b) of the Magistrates ordinance provides that:-

"When a notice of appeal has been given to the magistrates clerk the magistrate whose conviction, order or determination is the subject of the notice of appeal shall prepare a signed statement of findings on the facts and other grounds of his decision ........"

22. Whilst section 80 of the District Court Ordinance refers to district judges having to give "reasons for the verdict", section 114(b) of the magistrates Ordinance makes no such provision, I share the view expressed by Huggins, J. in R. v MA Kwai-chong (above).

23. It is by no means unknown for there to be honest differences between witnesses recounting the same event. It is one of the realities of life that many, if not most, people do not remember and/or recount the same incident, especially the details thereof, in the same way.

24. As regard discrepancies generally, I think it should be remembered that two main factors are involved - the faculties of observation and recollection. Some people have good powers of observation but comparatively poor powers of recollection and vice versa. Sometimes a witness may leave some matter or matters out because they are not in the forefront of his mind but under the probe of questioning, he may recall some matter or detail which he had previously forgotten.

25. When people are suddenly and unexpectedly confronted with or projected into a traumatic situation, especially one which involved a fairly large number of persons and lasted for a very short time their faculties of observation and/or recollection may be less acute in matters of detail than they might otherwise have been.

26. I am not suggesting, for one moment, that discrepancies may not provide a valuable method in the evaluation of credibility but the tribunal ought to consider whether such discrepancies (and these apply to all the evidence whether adduced by the Crown or the Defence) are not more apparent than real and whether they can be explained by faulty memories, lack of perception or conscientiousness for matters of detail, or whether they indicate or suggest fabrication.

27. In my view the learned magistrate dealt adequately with the discrepancies in the evidence when he said, in effect, that those discrepancies did not cause him to doubt the credibility of the police officers.

28. Before he said that, however, he stated he noted that the police officers were very young men. I do not know what he meant by "very young men" and I also do not know whether he meant that discrepancies in the evidence of very young police officers were more easily 'resolved' than that of older and more experienced officers. On the other hand when he said he found the defendant a "disingenuous" witness he makes no mention that the appellant was himself a young man.

29. Mr FAN Shun was a civil servant (like the appellant) and was an auxilliary police officer. He testified, inter alia, that at the time of the incident there were many people on the beach. He also said that "very soon he saw the two groups depart from each other". This seems to indicate that the attack was over in a very short while.

30. The following matters have caused me some anxiety.

31. It was not in dispute that after the incident the appellant made a report to the police. Nor was it in dispute that he had been a life-guard for seven years and that he had never been in trouble before nor was it in' dispute that at the time of the incident he was wearing the life-guard's "uniform": red swimming trunks and a yellow vest with red stripes. Nor was it in dispute that when he was seen by PC13249, a police officer who was instructed to go to the scene, that that officer saw the appellant (to whom he referred as "'the complainant") with injuries on his body - on the left upper arm, front chest, back of the neck and below the right knee. Nor was it in dispute that at the time of the incident, on the Crown's own evidence, there were many people on the beach and that the incident was over very quickly. He accompanied the appellant to the same clinic where PC45882, PC3602 and PC46363 had gone for treatment and the appellant's injuries were examined by the same doctor who examined those officers. The doctor gave evidence and produced his report in respect of those three officers. Although PC13249 said the same doctor examined the appellant's injuries the doctor said he could not ^-recall examining the appellant.

32. As a result the appellant served a witness summons on the medical superintendent of the clinic to produce the doctor's report of his examination of the appellant - the doctor then having left Hong Kong on holiday. The learned magistrate said, in effect, this would be "a waste of time" as the report would be "hearsay". In my view the doctor's report on the appellant's injuries could have been produced by the superintendent under section 22 of the Evidence ordinance but I have not relied on this aspect in coming to my decision.

33. Having re-read the whole of the transcript and the Statement of Findings a number of times I found it difficult to shake off a lurking doubt about the correctness of the verdict.

34. In R. v Cooper (1960) 53 Cr. App. R. 32, Widgery, LJ, delivering the judgment of the Court of Appeal, said, at pp. 85-86, that it was:

"A case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court will be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 ..... it was almost unheard of for this Court to interfere in such a case. However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such, it is a reaction which can be produced by the general feel of the case as the Court experiences it."

35. In R. v Lake (1977) G4 Cr. App R. at 177 Lord Widgery, C.J. gave the Court of Appeal's judgment:

"Once you have decided that 'the rules of procedure were followed and there remains the only residual question of whether there is a lurking doubt in the mind of the court, such doubts are resolved not, as I say, by rules of thumb and not by arithmetic, but they are largely by the experience of the judges concerned and the feel which the case has for them."

36. Another example is R. v Bracewell (1978) 68 Cr. App. R 44 where a conviction was quashed because the court was left in real doubt about the verdict dispute all the grounds of appeal having been individually rejected.

37. In the circumstances, I uphold the appeal, quash the conviction and set aside the sentences.