HKSAR v. LUI CHI KEUNG

HCMA1230/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1230 OF 2005

(ON APPEAL FROM TMCC 2744 OF 2005)

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REASONS  FOR  JUDGMENT

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1. The appellant was charged with one charge of ‘assault occasioning actual bodily harm' contrary to section 39 of the Offences Against the Person Ordinance (Cap. 212).  He was found guilty of the lesser alternative of ‘common assault' and sentenced to a fine of $5,000.  He appeals against the conviction.

The prosecution case

2. It was 7 August 2005.  A dispute arose between PW1, a branch manager of Centaline Property Agency and the appellant, a staff member of Midland Realty.  This took place outside their adjacent shops in Yuen Long over some advertisement boards.  In the course of it, PW1 was punched twice in the face causing him to fall onto the ground, and the incident was witnessed by PW2, an off-duty police officer.  The police were summoned with PW3 to 6 attending.  A doctor's statement was read under section 65B of the Criminal Procedure Ordinance re PW1's injuries.

The defence case

3. The appellant did not give evidence.  He called DW1, his subordinate, who testified that it was PW1 who started kicking the appellant.  It was only in self-defence that the appellant had pushed PW1 away.  Likewise, a statement was read under section 65B re the appellant's injuries.

The magistrate's findings

4. In the end, the magistrate rejected DW1's evidence.  This is what he said in the Statement of Findings :

“32. There were unreasonable and illogical instances in the evidence of DW1.  According to his evidence he was tasked by the Appellant to remove the advertisement boards and because of that the Appellant had an argument with PW1 and was assaulted by PW1.  Although he was present during the assault he, surprisingly, had never told the police that he had witnessed PW1 assaulting the Appellant.

33. DW1 admitted that when the police arrived at the scene he had not approached them to tell them he had witnessed the incident.  He was the subordinate of the Appellant and he must know at the scene that the Appellant had been arrested by the police.  It was unreasonable and illogical that he would not have approached the police to assert the innocence of his superior.  Even in the unlikely event that he was not aware of the Appellant having been arrested, he must still know that police had arrived at the scene to make investigations.  According to his evidence he had the full knowledge of how the incident had arisen.  It would only be natural that he would have stood out and told the police what he had seen.

34. Having considered all the relevant evidence I did not find him to be an honest and reliable witness and I rejected his evidence.”

5. The appellant's injuries were met by the same incredulity :

“37. In the medical report of the Appellant…here were injuries on the Appellant which included tenderness on a number of parts of the Appellant's body and a bruise mark over his right upper chest wall.  Tenderness was of course a subjective feeling and the bruise mark, according to admission of the parties, was only brought to attention of doctor in the second examination of the Appellant on the next day of the incident.”

6. As regards the prosecution case, it was basically the evidence of PW2 that the magistrate relied on to convict the appellant :

“19. PW1 was an unsatisfactory witness.  He gave the court an impression that he would readily deny or conceal things which were not to his advantage.  He was evasive as to whether he had been arrested.  He also denied to have used any foul language which was inconsistent with the evidence of PW2 and was unbelievable. 

…

28. PW2 said in his evidence that he was not sure he had seen everything PW1 and the Appellant had done from the moment he had seen them until the end of the incident.  When he said this he was only being careful and fair because according to his evidence he was able to see PW1 and the Appellant clearly without any obstruction of view.  He would certainly have been able to see PW1 fighting back if PW1 had really done so.  No doubt he had witnessed the whole of the incident after his arrival at the scene.

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30. Having considered all the evidence I was of the view that PW2 had told the court truthfully what he had witnessed at the scene and was a reliable witness.  The court accepted his evidence.

31. The police officers who attended the scene to conduct investigations all gave simple and straightforward evidence.  Their evidence was also not subject to much challenge by the defence.  Though there were some discrepancies in the evidence of PW2 and PW4 they were misunderstandings between the two of them.  I found the police officers to be honest and reliable witness and accepted their evidence.

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38. The court had already concluded that the court was not sure whether PW1 had told the court the whole truth of the matter.  There could have been more which PW1 had not told the court.  He could have attacked the Appellant at some stage before the arrival of PW2 and caused the injuries of the Appellant.

39. No matter this had happened or not PW2 gave clear and unequivocal evidence that at the time the Appellant attacked PW1, PW1 was not doing anything aggressive to the Appellant.  He was only standing there having an argument with the Appellant.  The Appellant was not in any danger of being attacked and there was no need for him to do anything to protect himself.  But he attacked PW1 and caused him to fall over.

40. PW1 stood up again and continued with the argument with the Appellant.  According to PW2 he was only standing there and did not fight back, but the Appellant attacked him and caused him to fall over for the second time.  Again the Appellant had no need to do so to protect himself.  He was not doing anything in self-defence in attacking PW1 twice.

41. No matter what had happened before the attack and even if PW1 had really attacked the Appellant before that and caused the injuries of the Appellant, the Appellant was not entitled to take revenge because the law did not allowed any individual to take the law into his own hand.”

Grounds of appeal

7. Senior counsel for the appellant has filed three grounds :

8. Ground 1 :

“The magistrate in accepting the evidence of all the police officers (para 31 of Statement of Findings) erred, in that he failed to resolve a material inconsistency between the evidence of PW2 and PW3 on whether the dispute between the appellant and the victim had already finished by the time the police reinforcement arrived at the scene (40K-N & 50H-L of Appeal Bundle).”

9. The short answer to this is that there is such an unresolved contradiction.

10. PW2's clear evidence is that two to three minutes before the police arrived, the people from both companies had returned to their shops and the only one left picking up the advertisement board was PW1.  PW3, on the other hand, testified that when he and his colleagues arrived, PW1 and the appellant were still arguing outside the Centaline Property Agency.

11. Ground 2 :

“The magistrate in accepting the evidence of PW2 erred in that he used speculation (para 24 of Statement of Findings) to resolve a material inconsistency between the evidence of that witness and the evidence of PW4 over what PW2 had reported to have witnessed earlier (45L-O & 54H-I of Appeal Bundle), while accepting that PW2 and PW4 were both honest and reliable witnesses (para 31, Statement of Findings).”

12. The issue here concerns whether PW2 had told any of the officers that he witnessed the appellant “pressing [PW1] onto the ground”.

13. PW2 denied it in cross-examination :

“Q. And do remember that you were asked -- you gave a version to Sgt 49837?  Remember that?

A. I said I mentioned it to a sergeant, but I also said I don't remember his number.

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Q. And do you remember what you told the sergeant at the scene?

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A. I said, ‘Earlier I saw the tall man from Midland punch the short man from Centaline twice'.

Q. Officer, your memory is faulty.  I suggest to you that's not what you told the sergeant.  Let me put to you what you told the sergeant.  You told sergeant that you saw the short -- the taller man pressing the shorter man onto the ground.  Remember that?

A. I didn't say that.”

14. PW4, however, had a different account :

“Q. And also you were informed by Sgt 49837 regarding -- sorry -- that a witness, who later turned out to be a police officer, had witnessed the incident?

A. Yes.

Q. And that witness later turned out to be PC 47995?

A. Yes.

Q. And this PC 47995 claimed that he had witnessed the defendant pressing [PW1] onto the ground?

A. Yes.”

15. As regards the magistrate, this is what he said :

“24. There were discrepancies between his evidence and that of PW4.  PW4 said PW2 had told him at the scene that he had seen the Appellant pressing PW1 onto the ground.  PW2 denied in court to have said so but said that he had told PW4 that PW1 had fallen on the ground on being assaulted by the Appellant.  This version and the version given by PW4 had some features in common, i.e. PW1 were assaulted and fell on the ground and this could easily lead to confusion.  Misunderstanding could easily arise in verbal briefings, particularly when a simple initial account of an incident was given at a scene of crime.  No doubt this was the case in the present case.”

16. In my judgment, what the magistrate said was not speculation.  The reason he provided for not letting this discrepancy trouble him is both reasonable and judicious.  It is common sense that things do get misheard or misunderstood in the context mentioned.

17. I should add that contrary to the magistrate's statement, what PW4 related was not a direct quote from PW2.  He heard it from Sgt 49837 (PW5) who, for reasons best known to defence counsel, was not cross-examined on this point at all.  It was therefore hearsay — if not multiple hearsay, as it would be if Sgt 49837 heard it from someone else — rendering it doubly prone to misquotation.

18. Ground 3 :

“The conviction of the appellant by the magistrate based solely on the evidence of PW2 was in the circumstances unsafe and unsatisfactory.”

19. This is a general ground which very much hinges on the previous ones.

20. With Ground 2 unsubstantiated, the remaining question is whether Ground 1 as made out would render the appellant's conviction questionable.

21. In my judgment, the answer to that is negative.

22. The discrepancy between PW2 and 3 is exceptionally minor when seen in its proper context.  I say this because even DW1 accepted that there was physical violence between PW1 and the appellant.  It is just a question of whether the appellant was the unprovoked aggressor at a certain stage, and it is not something that an eyewitness would be mistaken about.  Moreover, if PW2 was lying, there was really no need for him to lie about when the police arrived.  It follows that the discrepancy in Ground 1 must have an innocent explanation.  This is my judgment.

23. I should add that the magistrate had been particularly cautious about PW2 because his wife's brother was an employee of Centaline.  In the end, he found PW2 both honest and reliable :

“22. PW2 gave evidence in a simple and straightforward manner.  His evidence was clear and unequivocal.  I bore in mind that the brother of his wife was an employee of Centaline when I considered his credibility and reliability as a witness.  He said clearly in his evidence that he had only happened to walk by the scene at the time of the incident.

23. Although he had not made any disclosure of such a relationship in his witness statement he explained in court that he would only see his brother-in-law a few times a year when they had meals together during festivals and they would have telephone contacts only a few times a year.  This was typical of most of the families in Hong Kong.  It was not surprising that he would have omitted making the disclosure in his witness statement.  To be fair to the witness this was not something which would readily spring to a person's mind when giving a witness statement.  I found his explanation reasonable.”

Judgment

21. The appeal is dismissed.