HKSAR v. DESIR, ANTHONY CHARLES

HCMA 41/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 41 OF 2004

(ON APPEAL FROM ESCC 2875/2003)

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J U D G M E N T

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1. It is an appeal against conviction. The Appellant was charged in the Magistrate court on two counts of common assault. You are convicted after trial.

2. The evidence in the trial came, first of all, from PW1, who was a traffic warden and his evidence was that on the day of the offence, he was on duty at the junction of Percival Road and Hennessy Road and photographs of that junction were produced by the defence as Exh. D1.

3. At that time, he said, he saw the Appellant cross Hennessy Road at the junction against the pedestrian red light. PW1 said that when the Appellant came up to him he intended to stop him and inform him of his traffic light contravention. At that time, PW1 said that he spoke to the Appellant, face to face, and informed him of the violation, but the Appellant pushed him away and continued to walk down Hennessy Road. He therefore followed the Appellant and had made various attempts to stop him. He described two occasions when in the course of trying to stop the Appellant with his right arm, the Appellant twisted his right wrist by bending it backwards. PW1 had demonstrated this action to the learned Magistrate. PW1 said that on each occasion he shouted at the Appellant and asked him to stop assaulting him. PW1 said the Appellant had let his arm go, and the Appellant said to him not to touch him. PW1 described an attempt by PW2 to stop the Appellant using her back. But PW1 stated that the Appellant just pushed PW2 aside. So, PW1 then instructed PW2 to request for police assistance. PW1 denied that he had actually touched the Appellant when attempting to stop him. And later, he saw the Appellant being intercepted by two police officers in Tonnachy Road.

4. PW2 gave evidence that she was on duty with PW1 on that day. She saw the Appellant crossing the road in violation of the traffic signal. She had intended to summons him but PW1 spoke to him first. She gave the description about how PW1 tried to stop the Appellant and the Appellant's assault of PW1 and her. And she also described the interception of the Appellant in Tonnachy Road by the police officers. PW2 said she never saw PW1 use any force on the Appellant.

5. According to the learned Magistrate's Statement of Findings, the Appellant in this case had elected to give evidence and in his evidence he had described the incident. He said that when he crossed Hennessy Road, he did notice the traffic warden and 4 uniformed police officers at the Percival Street junction. After he crossed the road he was stopped by a female traffic warden, who was not PW2, and the offence was pointed out to him. The Appellant said that he said that he was sorry, and that he was in a hurry and the traffic warden then said "alright, No problem". The Appellant said that when he started walking down Hennessy Road, he felt someone pulling at his shoulder. He turned around and saw PW1 and asked him what he was doing. PW1 then informed him of the illegal crossing. The Appellant then mentioned to PW1 that he had already been spoken to by another traffic warden, and continued on his way. The Appellant said that PW1 tried stopping him by placing a hand on his shoulder and the Appellant then described how he removed PW1's hand from his shoulder, and continued to walk down the road followed by PW1. The Appellant also described his interception by a police officer, and that he had already decided, at that time, to make a complaint at the Wan Chai police station about PW1's conduct. Subsequently, at the police station, he was told that he would to be charged with assault and he gave a record of interview. The Appellant also admitted in cross-examination that he had pleaded guilty by letter to failing to comply with the pedestrian lights.

6. The learned Magistrate after listening to all the evidence and noting the clear record of the Appellant and all his charitable and voluntary work, decided that prepare weighing the evidence, she found the evidence of PW1 and PW2 were truthful and honest, and at the end of the day she did not believe the Appellant's evidence and therefore she convicted the Appellant of both charges.

7. The Appellant was represented by counsel at the trial. On the first day of the appeal, the Appellant complained that his counsel had failed do or misinformed him that the defence was unable to call PC34964 because he was listed as a prosecution witness, and therefore the failure of counsel to call this witness had seriously affected the Appellant's trial.

8. In view of the allegation of the Appellant, I decided to adjourn and to request an affirmation from counsel. The counsel was, Mr Chung, and he then very properly filed an affirmation setting out what had happened and in the affirmation counsel had also mentioned that he had agreed the evidence as to the arrest of the Appellant by PC34964 in the police station in order to avoid calling him because "the evidence of this police officer may have potential implications in strengthening the evidence of the two wardens in several respects, for example, the time when they received the call for assistance in the radio, leading to their interception of the Appellant and the position of the wardens when they first met the Appellant." And as far as Mr Chung was concerned, he was of the view that the only assistance he could obtain from this police officer would be the fact that the Appellant upon interception, told him that he was on his way to lodge a complaint against the two traffic wardens.

9. Mr Chung was of the opinion that in view of fact that the Appellant would most likely to going into witness box to give evidence, the fact that the record of interview of the Appellant would be produced by the prosecution in which the Appellant had mentioned this fact, thus the reaction of the Appellant when he first encountered the same police officer was in evidence, both in the prosecution and in the defence case. So he made the tactical decision that he did not feel that it was right to call this police officer and therefore in the circumstances he did not do so.

10. It is correct, what Mr Chung, said that a counsel who represents a client is not only a mouthpiece of the client. He had, because of his experience, to weigh up what would be to the advantage of the client he is representing. Having read Mr Chung's affirmation, I am satisfied that Mr Chung had acted perfectly properly in the circumstances. Certainly the evidence of the police officer was a collateral issue because the charges that the Appellant were facing was that he had assaulted the two traffic wardens and so what is an important issue in the case is whether these two traffic wardens were telling the truth, and it is a finding of fact which the learned Magistrate had to make.

11. Mr Desir representing himself on the appeal, had complained that the learned Magistrate had ignored the reality of situation because she had not given sufficient weight to the fact that he had gone to the police station voluntarily to complain against the two traffic wardens. And his point is that why would he do so if he was not entirely convinced that he had not acted incorrectly. Mr Desir said that in light of this that he should be granted a re-trial in order to present his case properly.

12. I have read the learned Magistrate's Statement of Findings, the learned Magistrate had gone through the evidence of both PW1 and PW2 and had noticed the fact that there are inconsistencies in their evidence but she found that such discrepancies were of a minor matter and were to be expected in the circumstances of this case and therefore did not affect her finding that they were both truthful and honest witnesses.

13. As I had explained to Mr Desir, the Magistrate's findings of fact is normally not interfered with by the court on appeal unless the learned Magistrate in his finding of fact had made an error either in law or on the facts to warrant such an interference. The reason of this is very simple it is because the count on appeal has no chance or no opportunity of observing then various witnesses giving evidence and very often the learned Magistrate's findings as to who to believe in a particular case, it is really based on the fact of the reasonableness of the evidence that was given and whether the evidence that was given may stand, and coupled with the fact of how the evidence was given, how the witnesses stood up to cross-examination. All these would come into the ambit of consideration by the learned Magistrate when she finally made her findings.

14. I do not find anywhere in the learned Magistrate's Statement of Findings that she had made any mistake as far as her findings of fact are concerned.

15. Mr Desir complained that she had not mentioned that she had properly evaluated the evidence of his voluntary appearance at the police station, which indicates that the learned Magistrate had not considered it. I do not accept that as the learned Magistrate had in her statement of findings, at page 9 of the appeal bundle in the first paragraph, set out the facts that the Appellant had told the court that he went to the police station to make a complaint and that when he was intercepted by a police officer he had already decided to make a complaint at the Wan Chai police station.

16. So the learned Magistrate knew at the time when she made her Findings of Fact that the Appellant's evidence was that he had gone voluntarily to make a complaint so the fact that the learned Magistrate had not mentioned this in her findings of fact does not mean that she did not consider it and in any event as I have said this is a collateral issue, the Court of Appeal had time and time again said that the learned Magistrate does not have to write down every single matter that was raised before her and that just because she might not have referred to a point that was raised in her Statement of Findings did not mean that she had not considered it and, in fact, as I said she did mention this point but obviously this point did not cause her in any way to doubt the evidence of the prosecution witnesses.

17. Mr Ho is right to say this is a question of the creditability of the witnesses, it is a finding of fact and the learned Magistrate at the end of the day came to the conclusion that she believed the prosecution witnesses.

18. I can understand that Mr Desir, not being all fait with the proceedings, may feel a little frustrated and that he was frustrated by the treatment he thought he received at the police station.

19. As I have said, this is a matter for complaint to the Complaints Against Police Office this is not for me at this stage to say anything about that. So, I see no grounds at all to disturb the learned Magistrate's findings. And therefore the appeal is dismissed.