HKSAR v. NG WAI KEUNG ASIAN

HCMA600/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.600 OF 1999

(ON APPEAL FROM KTCC 785 OF 1999)

--------------------

------------------------

J U D G M E N T

------------------------

1. The appellant in this case was convicted of the offence of common assault by the learned magistrate, Ms J Livesey on 31 May 1999 after trial. The appellant was fined $1,500 by the learned magistrate. Against this conviction, he now appeals.

2. The appellant was the 3rd defendant in the case before the learned magistrate. He was jointly charged with two other defendants being D1 and D2, initially for the offence of assault occasioning actual bodily harm to the victim, Tsang Kai-chung (PW1) on 30 November 1998 at a rear lane in the Nelson Street Temporary Cooked-food Market and 565-583 Shanghai Street in Mongkok, Kowloon. Both D1 and D2 faced a further count of assault occasioning actual bodily harm on the same victim which took place earlier that day in Kwun Tong but where the appellant was not present. D1 had earlier pleaded guilty to common assault in relation to both charges and had been dealt with on that basis, those pleas having been accepted by the prosecution. When this trial started, at the invitation of the learned magistrate, the prosecution had amended both counts to common assault charges.

3. The prosecution's case was that PW1 had borrowed $5,000 from D2 and had, for some time, failed to repay this money to D2. As a result, PW1 has been avoiding D2. On the day in question, PW1 had come across D1 and D2 in Kwun Tong and on the instructions of D2, D1 had assaulted PW1 for failure to repay the debt. This assault in Kwun Tong has nothing to do with the appellant who was not present there. It is only relevant by way of background as to what transpired later. After the assault in Kwun Tong, PW1 voluntarily followed D1 and D2 to Mongkok because there was a possibility that D1 and D2 could find a job for PW1 through the appellant in Mongkok (so as to enable PW1 to repay the debt). Having met the appellant in Mongkok, the four of them then sat at a table at a cooked-food stall. The evidence from PW1 was that once again D1 was instructed by D2 to assault him. D1 then took PW1 to a rear lane some distance from the table at which they were all sitting. There, D1 assaulted PW1. After this assault, PW1 was brought back to the table where the four of them sat and at that table, the appellant then punched PW1 on his right upper arm two to three times.

4. Under cross-examination, PW1 had agreed that he had given a statement to the police some time later on that very same day of the assault after the matter had been reported by him when he went to the hospital for treatment. He agreed that in his statement to the police he had said that the three of them (namely D1, D2 and the appellant) had surrounded him at the rear lane and had kicked and punched him. Having gotten PW1 to admit that there was this inconsistency between what was stated in his police statement and the evidence that he gave in court, defence counsel at the trial did not see fit to pursue the matter any further. In re-examination, prosecuting counsel then asked PW1 for an explanation as to the inconsistency. In reply to that, PW1 said he was confused at the time when he gave the statement as it was a statement given by him when he was in hospital.

5. Both D2 and the appellant gave evidence at the trial before the learned magistrate. D2 basically denied having instructed D1 to assault PW1, saying that it was a fight between D1 and PW1. The appellant also gave evidence and denied having punched PW1 as alleged by PW1.

6. Having heard all the evidence, the learned magistrate found that PW1 was a truthful, honest and reliable witness and accepted his evidence. She disbelieved the evidence of D2 and the appellant and went as far as to find that D2 was a dishonest witness. In coming to the finding that she did, the learned magistrate, both when she gave brief reasons for her decision in court on the same day as well as in her Statement of Findings, made no reference to the different versions of events given by PW1 in his police statement and what he said in evidence at the trial.

7. The main ground of appeal by the appellant is that the learned magistrate had failed to consider at all the discrepancies and contradictions arising between what was stated in PW1's witness statement to the police and the evidence that he gave at the trial. Mr Fenton, who appeared for the appellant on this appeal, put his arguments on the following basis : firstly it was upon the evidence of PW1 solely that the appellant was convicted of the offence of common assault. Secondly, the discrepancy between the evidence given by PW1 as to the manner in which he was assaulted by the appellant is so vastly different from the description of the assault given by PW1 in his witness statement such that the reliability on PW1's evidence and also his credibility as a witness must have been called into question. Thirdly, the failure by the learned magistrate to make any mention of this inconsistency in both her brief reasons given in court as well as her Statement of Findings indicates that the learned magistrate had either overlooked the fact that there was such a great inconsistency between PW1's evidence and his witness statement, or that it shows the learned magistrate had failed to properly resolve the inconsistency before accepting the evidence of PW1 as being truthful and honest. In the circumstances, it is argued that there must be a lurking doubt in the prosecution's case and therefore the conviction is unsafe and unsatisfactory.

8. Mr Fenton relies on the principles established in the following three cases :- R. v. Ng Yau Chuen, MA770/1994, a decision of Wong J (as he then was); R. v. Cheung Chi Shing, MA1401/1996, a decision of Leong J (as he then was) and lastly R. v. Chin Ming Loi, MA1454/1996, a decision of Gall J. The underling principle which runs through these three cases is that where there are vital and obvious discrepancies in the evidence adduced, these discrepancies must be resolved in a rational and convincing manner and the magistrate has to address his or her mind to the problem. Furthermore, an appellant (or defendant) is entitled to know as least to some degree how a judicial officer has resolved such discrepancies in the evidence.

9. In my view, however, there are two important distinctions which distinguish the above three cited cases from the present case. Firstly, in all of the three cited cases, the discrepancies involve discrepancies in respect of vital parts of the evidence coming from different witnesses. As such, they are strictly speaking discrepancies in the evidence. In the present case, there was a conflict between PW1's evidence given in court and what was stated by him in his witness statement. What was contained in PW1's witness statement, whilst it may be an inconsistent previous statement, is not, strictly speaking, evidence before the court. Thus in the present case, while there was an inconsistent previous statement, there was no discrepancies in the evidence as such.

10. Secondly, in all the three cited cases, the discrepancies in the evidence remained unresolved. It was therefore incumbent upon each of the magistrate in the three cited cases to resolve those discrepancies in a rational and convincing manner. That, therefore, was the problem which each magistrate had to apply his mind to deal with. In the present case, the answer given by PW1 in re-examination amounts to an explanation explaining away the difference between his evidence and what was stated by him in his witness statement. On the face of the evidence (including re-examination), there was no conflict since whatever conflict there may have been between PW1's evidence and his witness statement, had been explained away by PW1 in his re-examination. It was left therefore to the magistrate whether or not to accept PW1's evidence in the light of his explanation for the difference between his evidence and his previous inconsistent witness statement. The learned magistrate accepted PW1's evidence as being honest and truthful. In coming to that decision, the learned magistrate must have accepted also his explanation given in re-examination. At the end of the day, therefore, there was no conflict on the evidence which the learned magistrate had to deal with, unlike the three above cited cases.

11. It was also argued by Mr Fenton that given there was this explanation by PW1 in re-examination, that explanation was not one which the learned magistrate ought to have accepted because no medical evidence had been put before the magistrate to show how PW1 could have been confused whilst in hospital since PW1 did not suffer injuries of a kind which would have resulted in his being in a confused state. Admittedly, there was no medical evidence before the learned magistrate which would have shown that PW1 had suffered injuries which would have caused him to be in a confused state whilst in hospital. Looking at the transcript, however, in particular to the final submission by counsel for the defendants at the trial, it is apparent from his submission that there was evidence to show that the confused state of PW1 arose from the fact that PW1, as well as the defendants in the case, had consumed alcohol, possibly beer, whilst at the cooked-food stall. Since there was evidence before the learned magistrate which could justify her accepting the explanation tendered by PW1 in re-examination, it would not be for an appellate court to interfere with such findings of fact.

12. The only matter which did cause me some concern arising from Mr Fenton's submission was the possibility that the learned magistrate may have completely forgotten about the previous inconsistent statement of PW1 when she decided that PW1 was a truthful and honest witness and therefore did not properly evaluate the evidence before making her finding. However, looking at the transcript once more, it can readily be seen that the evidence in this case commenced at just before 10:30 am in the morning of 31 May 1999. All the evidence including defence evidence was completed by 3:20 pm on the same day. Then followed submissions by defence counsel which was completed by 3:33 pm. Moreover, it should also be noted that in his final submission, defence counsel reminded the learned magistrate of the difference which existed between PW1's evidence given in court and what was stated in his witness statement. The court then took 20 minutes to consider defence's submissions and came back with its verdict and brief reasons at 3:53 pm on the same day. She completed her brief reasons by 4:05 pm and convicted the appellant and his co-defendant. In view of the fact that the evidence, submissions and the learned magistrate's reasons for convicting the appellant all took place within the space of the same day and that the evidence given in the case must have been fresh in the mind of the learned magistrate when she gave her reasons to convict the appellant, particularly when she had been reminded of the inconsistency in defence's speech, I have come to the conclusion that the learned magistrate must have been aware of the previous inconsistent statement of PW1 but had accepted his explanation as given by him in re-examination.

13. With hind sight, it would probably have been better if the learned magistrate had made some mention of this aspect of the case either in her brief reasons given in court or in her Statement of Findings. Nevertheless, for the reasons given above, I am satisfied that the failure of the learned magistrate to mention this is not fatal and does not render the conviction unsafe or unsatisfactory.

14. The other ground of appeal which Mr Fenton did not pursue with much enthusiasm criticized the learned magistrate for wrongly stating in her Statement of Findings that the victim had been punched in the shoulder when in fact his evidence was that he had been punched in the upper arm by the appellant. It is submitted that the learned magistrate could not have considered the facts carefully if she could have made such a mistake.

15. Whilst it is true that in her findings of fact, the learned magistrate did use the word "shoulder" as being that part of his body where PW1 was punched by the appellant, it is equally clear that the magistrate had not made any mistake as to the evidence given by PW1 for under the heading of "Evidence in the trial" in her Statement of Findings, the learned magistrate had correctly stated that "PW1 stated that the Appellant punched him two or three times on his right upper arm". Given that she had correctly stated the evidence as given by PW1 in her Statement of Findings, the only reason that I could think of for her use of the word "shoulder" in her findings of fact was that it was an unfortunate choice of words rather than a misunderstanding of the evidence given in the case.

16. For these reasons given above, the appeal against conviction is dismissed.