R. v. CHAN Wai-kit

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MAGISTRACY APPEAL NO. 508 of 1994

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J U D G M E N T

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Penlington, J.A. :

1. This is an appeal against convictions on two charges of wounding contrary to Section 19 of the Offences Against the Person Ordinance, Cap. 212 on each of which the applicant was sentenced to four months' imprisonment and ordered to pay compensation.

2. The appellant was charged that on 18th January this year he wounded two brothers, Kwok Chi-man, who was known as PW1 at the trial, and Kwok Yee-man, PW2. He was also charged with wounding Ho Pak- hong, who was employed by PW1, but he was acquitted on that charge.

3. The evidence related to events which are unfortunately all too common, namely a dispute over hawking areas, in this case near the MTR station at Sceneway Garden, Kwun Tong. It was essentially the case for the Crown that the Kwok brothers and Ho were hawking in that area. There was a dispute between them and another group including the appellant and that other group assaulted the Kwoks causing them substantial though not grievous injuries. It was the case essentially for the appellant that the boot was very much on the other foot that he had come along to ply his trade, the Kwoks had come up to him and threatened him, told him that they controlled the area and he was the victim of assault himself. He denied any assault on the Kwoks or Ho.

4. It was therefore essential for the Magistrate to decide which version was correct because each side had denied assaulting the other, although quite clearly there had been such assaults because of the medical evidence. It could also well have been the case that there was fault on both sides and nobody was telling the whole truth.

5. Medical reports were admitted without dispute relating to injuries received by the Kwoks, Ho and the appellant. They showed that Kwok Chi- man had a multiple injuries, including a fracture of his left rib. Kwok Yee-man had multiple bruises, lacerations, swelling and these injuries were referred to by the trial Magistrate in her findings as supporting their version in the events. The medical report relating to the appellant showed that he had been assaulted and in particular his nose had been broken.

6. These cases are always difficult to decide because the evidence given on each side is usually totally contradictory and in assessing the credibility of the witnesses a Magistrate must have regard to proven and undisputed facts to see whether the accounts given on each side fit in with those facts. Here the medical reports were the only undisputed evidence. The Magistrate in her meticulously prepared statement of findings, has fully considered the medical evidence in relation to the prosecution witnesses. She should have also considered that evidence in relation to the version of events given by the appellant but it is not referred to at all in her reasons for verdict.

7. Mr Steven Bailey, Senior Assistant Crown Prosecutor, who appears for the Crown, points out that the medical evidence shows that the injuries received by the Kwoks and Ho were more substantial than that received by the appellant. However the appellant said in his evidence that the more serious assaults on him were carried out by two other persons who ran away and were not charged though the appellant himself was a party to those assaults.

8. I have been referred to the decision R. v. Li lai-ying, Magistracy Appeal No. 1036/93, of Patrick Chan, J. were he allowed an appeal because he was not satisfied that the Magistrate's finding could be relied on because he had not referred to the medical evidence. In Magistracy Appeal No. 242/90, O'Connor, J. referred to Yuill v. Yuill [1945] 1 AER 183 at 190 and said "Before replying on demeanour, it should be tested against all the evidence."

9. Having carefully considered the evidence given by the Kwoks and Ho, the trial Magistrate accepted their version of merits and disbelieved the appellant. She said she "had ample opportunity to observe him when he gave evidence. From his demeanour and the evidence he gave I found him to be unreliable and I did not believe him." She may well have been quite correct in that assessment and as has been said so often an appeal court will not lightly interfere with a find of credibility made by the person who heard and saw the witnesses. Here however there was uncontested medical evidence supporting the appellant's version that he was assaulted in the very way he said he was i.e. a fist blow on the nose which caused severe bleeding. The Kwoks and Ho denied any form of assault. That was evidence which had to be evaluated but it was not.

10. Taking all those factors into account and the authorities to which I have been referred, I am satisfied that the Magistrate, although she has set out her decisions in an admirably clear and concise manner did not refer to a very important part of the evidence and for that reason I must regard the convictions as unsafe and unsatisfactory. They are quashed, and the sentences and compensation order are set aside.