YAM CHUNG KAI v. THE QUEEN

Criminal law - relevance of evidence of collateral matters to whether defendant charged with assault acted in self-defence - subjective nature of appellate evaluation of evidence as to whether determination of guilt is unsafe and unsatisfactory. Held: Appeal upheld.

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JUDGMENT

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1. The appellant was found guilty after trial of assault occasioning actual bodily harm, contrary to the common law and Section 39 of the Offences Against the Person Ordinance, Cap.212 and of criminal damage, contrary to Section 60(1) of the Crimes Ordinance, Cap. 200. In respect of both offences no convictions were recorded but the appellant was conditionally bound over in the sum of $500 for 12 months and ordered to pay costs of $2500. No convictions having been recorded the appeal is against the determination of guilt on each charge. There is no appeal against sentence.

2. The undisputed findings were that the appellant was the managing director of Hei-lee Sups Store (hereinafter called "the Company") which sells furniture and has several stores throughout Hong Kong. The appellant has his office in the Company's main branch which is situate on the 1st Floor of the Prudential Building, No.218 Nathan road, Kowloon.

3. The background to this appeal is that early on the morning of 28th May 1984, four police constables attached to the Criminal Investigation Division, shaukiwan Police Station were instructed to go to Tsimshatsui East, Kowloon, to carry out surveillance duties in respect of an escaped former arrested person who was suspected of not holding an identity card. The four police constables travelled to Kowloon by the private car owned by one of them and that police constable also took with him his private camera. None of the police constables had ever personally seen the suspect but were given a photograph of him. They were instructed to observe and if possible to take the suspect's photograph but not to arrest him. At some stage after 10 a.m. they saw a different suspect but lost sight of him and did not expect him to reappear until the evening. This person was not the suspect they went to locate.

4. No photographs had been taken and the majority of the police constables had spent the morning in the Choi Lung Restaurant, East Tsimshatsui. During the morning the police constable with the camera, after looking elsewhere in the same building, had been unsuccessful in his attempt to buy an additional film more suitable for night photography. At about 2 p.m. all the police constables left by the private car to look for the film, food, change and petrol. In the event they drove to Woosung Street, near the junction of Nathan Road and Jordan Road. After unsuccessful enquiring of a 7-11 shop for a film, they entered the Prudential. Building and on reaching the 1st floor found themselves in the Company's furniture store.

5. After being approached by a member of the staff, a dispute arose whether they had taken photographs within the store and the staff member called the appellant to the scene. The police constables, who were in plain clothes and elected not to reveal their identities, denied that any photographs were taken. According to the police constables they were then assaulted by the appellant and other members of the staff. According to the appellant and the two members of his staff who were also charged in the Court below, they were attacked by the police constables.

6. The medical evidence of Dr. K.F. Cheung showed that the appellant, a staff member Mr. Wong Lit-hung, who was the 3rd Defendant before the learned magistrate and D.P.C.19233, all suffered minor injuries. The police constables explained the injuries to the appellant and Mr. Wong as having been caused while they were being subdued. The appellant conceded that he may have touched the face and glasses of D.P.C.19233, while he was defending himself from being assaulted by the police constables. The medical evidence was neutral as to whom was the aggressor.

7. There was a complete conflict between the prosecution and defence witnesses as to who commenced the assault. The learned Magistrate in a lengthy and detailed Statement of Findings had no difficulty in resolving this crucial issue. In his Statement of Findings after referring to part of the appellant's evidence as being "a fabric of half-truths and of lies" he went on to find him to be "a stranger to truth." Similarly he had "no difficulty in dismissing D2's evidence as concocted and untruthful" while in addition to part of D3's evidence being “totally undeserving of belief" he went on to find him to be "an wholly unreliable witness as to truth."

8. On the other hand, the learned Magistrate found all .4 prosecution witnesses credible. While he recognised there were some inconsistencies in their evidence, these related to what he described as "very peripheral matters" of no real account. In his view they did not create any doubt in favour of the defendants, as to what occurred between the parties in the Company’s furniture store.

9. The sole ground of appeal was that the determination of guilt was unsafe and unsatisfactory in all the circumstances. Those circumstances were particularised in considerable and helpful detail in the Notice of Appeal. Where an appeal is limited to this ground, it is necessary on appeal to review the whole of the evidence in depth. For at the end of the day the appellate determination is both exceptionally and necessarily subjective rather than objective. The classic statement of the appellate function in an appeal of this nature is contained in the judgment of Widgery L.J. in R. v. Cooper (1968) 53 Cr. App. R. 82, 86, where he declared:

"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."

10. I am mindful of the fact that this ground of appeal does not invest an appellate court with an unlimited charter. In particular our own Court of Appeal in R. v. Tang Wai-tong (1979) H.K.L.R. 479,486, has emphasised in the judgment of the Chief Justice that:

"… the lurking doubt formula must be applied with great caution. An appellate court, reading papers - and not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have the advantage of seeing the witnesses and assessing their credibility. In our view, "lurking doubt" means not an insubstantial doubt but a substantial remaining doubt."

On this ground of appeal I was also generally referred to 'Archbold' (41st Edn.) page 733.

11. In this appeal the learned Magistrate had the substantial advantage of seeing all the witnesses, hearing their evidence and observing their demeanour. Those are advantages not enjoyed by this Court. However, unlike the verdict of a jury, this Court does have the advantage of a comprehensive and reasoned written review of that evidence by the magistrate.

12. In addition to having read the whole of that evidence and the Statement of Findings I have also had the benefit of being taken through that evidence by both Counsel. The whole of one day was devoted to this appeal and the greater part of that time was spent by Counsel going through the evidence page by page.

13. Counsel for the appellant first submitted, that the learned magistrate failed to consider fully those matters which he described in his Statement of Findings as peripheral. Counsel drew attention to what he considered the remarkable picture the prosecution evidence even if accepted presented. I was referred to the fact that 4 police constables were sent from their own area in Hong Kong Island to East Tsimshatsui with which they were not familiar to carry out surveillance duties in respect of a suspect they had never seen; that they were not to arrest him; that they were only to take photographs yet they never did; that after spending time in a restaurant in the middle of a major tourist shopping locality they considered it was necessary to interrupt their surveillance and go elsewhere to look for food, film, change and petrol. It was submitted that the car was already safely parked in East Tsimshatsui and it was reasonable to infer that all those commodities would have been available in that vicinity.

14. Counsel for the appellant further pointed out that not only did the police constables decided to leave East Tsimshatsui but they drove towards the junction of Nathan and Jordan Roads although most of them were unfamiliar with those roads and one claimed he did not know what type of shops were in Nathan Road, Counsel continued that on arrival the police constables walked into the Prudential Centre looking for a film even though there was a Fotomax Shop on the Nathan Road frontage from which they entered and even though they all went past Watsons The Chemist Shop as they went up the escalator to the Company's furniture store.

15. The position of the Prudential Centre was shown on a sketch plan produced before the learned magistrate and photographs of the Fotomax Shop and Watsons The Chemist Shop were also produced before him by the defence. When approached by the Company's staff in the furniture store, the police constables did not reveal their identity as policemen and allowed a dispute to develope which culminated in force being used and injuries being sustained.

16. Counsel for the appellant submitted that this evidence of events prior to the assault was not only relevant but was of importance for on those events the police constables evidence was inconsistent and contradictory. These inconsistencies and contradictions were of particular importance in any assessment of credibility where as here, the alleged assault occurred so quickly and the evidence of what then occurred was as between the prosecution and defence witnesses so conflicting. Indeed, Counsel submitted, it was in such circumstances that evidence of collateral matters becomes of major importance in any finding as to credibility.

17. On the importance of evidence of collateral matters in these circumstances, I was referred to the judgment of Leonard J., as he then was in R. v. Yu Chung-keung Cr. App. No.392 0f 1977. In that case the very typical facts were that a solitary police constable stopped and searched the defendant in the street and alleged that he found dangerous drugs on the defendant's person. The defendant, who was represented and gave evidence, strongly denied that dangerous drugs were found on him. The defendant was convicted and the magistrate completed a statement of findings in which he stated that the plausible evidence of the defendant as to events before and after the street search, were of "little value." Leonard J., rejected that view of the evidence stating:

"I pause to interpolate that it was inevitable in the circumstances that much of the testimony of the appellant should have been concerned with collateral matters. On either account what happened at the time of arrest must necessarily be described in a few short sentences. The only available test as to whether the prosecution witness was telling the truth about what happened on arrest was by examination as to whether he was telling the truth about the surrounding circumstances."

18. On this issue I was also referred to Glanville Willairfs 'Textbook of Criminal Law (2nd Edn.) at page 502 where the question posed is in relation to the formidable problem of proof where two persons fight and one says he was acting in self defence. As to that Professor Williams observes:

"If there is a survivor of the incident on the other side, his account of what happened is likely to differ essentially from that of the defendant before the court. Even impartial spectators are unreliable witnesses to a sudden affray that is over in a few minutes or seconds. When the issue is one of self-defence, everything depends or what side was the aggressor, and the temporal order of events is therefore` of high importance. But experiments indicate that this is difficult to establish by oral evidence.... The position is easier if there is a past history that helps to establish who was at fault."

19. A case note to R. v. Yip Po-lung Cr. App. No.827 of 1978 in (1979) 9 H.K.L.J. 162 makes a similar point when it states that circumstantial evidence is admissible and valuable in such circumstances in helping to establish the aggressor. In the present case there was no previous history of any relationship between the parties. In fact, the police constables were in the shop for about 6 minutes before the assault and the assault- lasted only a few seconds. The evidential difficulties the authorities refer to must have existed in this case. To that extent, particularly in view of the absence of any previous relationship between the parties, the evidence of what occurred prior to the incident and the manner in which the witnesses gave evidence on those earlier matters, was certainly relevant.

20. In considering the evidence of the appellant the learned. Magistrate found that in the face of the alleged aggressive actions of the police constables, his evidence that he remained polite and controlled, was not credible. As against that finding it was pointed out that initially the appellant did not become involved and considered the incident too minor to require his attention. More importantly he explained that as the managing director of the Company, he remained calm as he did not want any unpleasant incident to develope in his showroom. The learned Magistrate found that the appellant's explanation for remaining calm was unnatural. The appellant's submission, to the contrary, is that it was in the appellant's business interests to remain calm and make every effort to avoid a fight developing in the showroom which was frequented by customers. Equally, in order to protect its furniture designs, the employee who first spoke to the police constables and alleged that the police constables were taking photographs of the furniture, was reasonably concerned, if that was what occurred. Counsel for the appellant also submitted that there was no evidence to support the learned Magistrate's finding, in paragraph 14(b) of the Statement of Findings, that the appellant determined to punish D.P.C. 19233 "for causing him loss of face."

21. Crown Counsel reminded me that the learned Magistrate had the advantage of listening to and observing the witnesses. Accordingly the lurking doubt formula should be applied with great caution. It was also submitted that while collateral matters were of importance in cases such as R. v. Yu Chung-keung where each party called only one witness and the incident happened very quickly, they were of less importance where a number of witnesses were involved and the incident occurred over a longer period. Counsel pointed out that, before the assault the police constables were in the Company's furniture store for more than 5 minutes and were observed in several different-places within the store. While the assault only took several seconds, the learned Magistrate had a substantial body of evidence of what occurred over a relatively long period within the store. To that extent he was entitled to treat the evidence in relation to the police constables earlier surveillance duties and their actions before entering the Company's furniture store, as peripheral.

22. The crucial question for the learned Magistrate, Crown Counsel submitted, was that posed by defence Counsel in his closing address at the trial, "Who started the fight?" Crown Counsel submitted that the learned Magistrate properly held that the evidence of what happened at the furniture store was the primary evidence relevant to answering that question. The learned Magistrate, enjoying the benefit of having all "the witnesses before him, as evidenced by his long and detailed Statement of Findings, had clearly fully and properly considered that evidence before reaching his finding of guilt.

23. I accept that the principal issue was who started the fight. I accept too, that the Magistrate had the advantage of observing the witnesses. However, after considering the evidence at length I am satisfied that this was precisely the type of incident which creates evidential difficulties as to the identity of the real aggressor, of the kind adverted to by professor Williams. In these circumstances it is invariably helpful to consider collateral matters if evidence of them is adduced.  In this particular trial evidence of collateral matters were adduced at great length. That evidence was relevant and would be helpful to the extent that it assisted, rather than clouded, findings of credibility and otherwise on the primary issue.

24. The statement of findings indicated that the learned magistrate formed the view that these collateral matters were of little relevance. In any event he found them of little assistance and was able to make very confident findings on the basis of the evidence as to what occurred between the parties within the furniture store. The learned Magistrate clearly considered he had adequate evidence to make those forthright findings. However, in a case of this kind, the very form of those emphatic findings, raises the question of whether they were wholly justified.

25. That question, in turn, involves the Court in making the subjective, if difficult, evaluation of the kind referred to by Widgery L.J. in R. v. Cooker and by our own Chief Justice in R. v. Tang Wai-tong. In making that evaluation I also take into account the doubts I have as to whether the rejection of the appellant's explanation for remaining calm was justified and whether the inference that the appellant wanted to save face was sound.

26. I also take into account the lengthy evidence and submissions as to the action of the police, constables from when they arrived at Last Tsimshatsui until the incident in the Company's furniture store occurred. Aspects of their conduct during that period appear on the face of the evidence quite incredible. On the other hand, I recognise the confidential nature of their surveillance duties. Perhaps it was their determination to preserve that confidentiality, even while giving evidence, which results in many of their actions appearing to be irrational. However, those are matters upon which it is dangerous and improper to speculate. Any evaluation of the evidence must be on the basis of that evidence. On that evidence the testimony of the police constables is often unhelpful and at times bewildering.

27. After considering all these factual matters and the very helpful submissions of both Counsel, I find in the result that the determinations of guilt are unsafe and unsatisfactory. The appeal against the determination of guilt on both charges is upheld.