HKSAR v. Wu Pui Man

HCMA1179/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1179 OF 1997

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J U D G M E N T

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1. The Appellant was convicted after trial of two charges: the first, assault occasioning actual bodily harm and the second, claiming to be a member of a triad society.

2. The prosecution's case was that on 18 July 1997, whilst PW1 was in Tung Choi Street, he passed a hawker's stall in which he saw certain photographs of Rolex watches. He asked to see these watches and was given them to see and was told that they were $500 each. Whilst he was looking at the watches, he was told that he had to pay $500 for it before he decided to even purchase one.

3. At that time PW1 refused but six to seven men then came up to him and told him that he should not play with them in that way. He was told by one of the men that he was No. 14, which the witness understood to refer to the 14K Triad Society. PW1 thereupon walked away but was followed by these six to seven men. Whilst walking away, PW1 made a 999 call on his mobile phone. When PW1 came to outside the restaurant at Tung Choi Street, he was set upon by these six to seven men, and assaulted by them including one in a white T-shirt whom PW1 said was the person who told him that he was No. 14.

4. Two police officers, PW2 and PW3, came on to the scene at a time when these men were still assaulting PW1. The evidence of PW2 and PW3 was that the situation then when they arrived was confusing and chaotic. One said that there were about 50 persons in the area, most of whom were on-lookers. The other officer said there were about 20 persons. In any event, both agreed that it was a confusing situation.

5. PW1's evidence was that when he was assaulted by these men because of the assault he ended up sitting on the ground, using his hands to fend off the assault. The evidence from PW2 and PW3 when they came on to the scene was that they saw the appellant who was in a white T-shirt with blue stripes, being one of the attackers of PW1. The appellant's defence was that he was having food in a restaurant with his wife and with a friend, who was called as a defence witness, when he heard a commotion outside and realised that a group of persons were assaulting PW1. He came out to try to mediate, and was himself caught up in the struggle and assaulted as well. The appellant did not give evidence at the trial but called a witness, DW1, who was with him at the time and who testified to that effect.

6. The medical evidence both in relation to PW1 and in relation to the appellant were not challenged and put before the magistrate as evidence in the form of two medical reports. That in relation to PW1 indicates that he had complained of loss of consciousness and vomiting after head injuries; that his general condition was stable, he was conscious at the time of examination, and there was tenderness over his head; an abrasion over his left wrist. PW1 was discharged against medical advice on the same day. The examination of PW1 took place at 30 minutes past midnight on 19 July 1997.

7. In relation to the medical report of the appellant, the examination of the appellant took place 18 minutes after midnight on 19 July 1997. The doctor examining him noted the following injuries: Firstly, 2 centimetre diameter abrasion on his left face; secondly, a 1 centimetre diameter swelling on the back of his head; thirdly, two 3 centimetre diameter bruises on his right chest; and fourthly, a half centimetre diameter abrasion on the dorsum of his right hand. The appellant after examination was admitted to the neurosurgical ward of Kwong Wah Hospital.

8. The appeal brought on behalf of the appellant today centres around the way in which the magistrate came to his findings and his evaluation of the evidence of the various witnesses.

9. His evaluation is challenged by Mr Macrae in the sense that the magistrate did not give sufficient weight to the findings of the doctor in this medical report, in relation to the appellant. That it is also submitted that the magistrate should not have off-handedly discarded the evidence of the defence witness called by the defence in the trial based to a large extent on the demeanour of the defence witnesses, witnessed by the magistrate at the actual hearing, in particular to one instance during the hearing when the magistrate noticed, or thought he noticed, that the defence witness when asked the service number of the police officer, how he looked to the defendant who was mumbling something with his lips before he gave the answer, an answer which turned out to be wrong insofar as the service number of that police officer was concerned.

10. In putting forward this appeal Mr Macrae accepts first and foremost that it is never easy to upset the tribunal's findings of reliability when it comes to witnesses and what evidence, or whose evidence a tribunal of fact accepts or rejects.

11. Insofar as the magistrate's rejection of DW1's evidence is concerned, I make no criticism of that. The learned magistrate saw for himself the demeanour, the way in which that witness gave his evidence, and he would be in the best position to assess what weight he should give to such evidence, if at all.

12. What bothers me in this case - and it is a matter which Mr Macrae was able to cite two authorities on the case of CHAN Wai-kit Magisterial Appeal No. 508 of 1994, as well as the case of R v LI Lai-ying and Others Magistracy Appeal No. 1036 of 1993 - is the fact that the magistrate seemed to have given insufficient consideration to the injuries as contained in the medical report of the appellant. Whilst it is true that the magistrate did refer to these injuries, I am somewhat baffled as to the way he concluded that the injuries of the appellant must have resulted from what the officers said was how they had grabbed and pressed the appellant when they came on to the scene.

13. Although words "grabbed" and "pressed" were used, nothing in the transcript of evidence suggests that the appellant was pressed to the ground, or that there was any form of struggle, or indeed anything which could have resulted in the injuries sustained by the appellant. Nor was there any evidence from PW1 that prior to the arrival of the police officers there had been any fracas or any struggle between him and his assailants, which could have given rise to these injuries of the appellant.

14. In the case of CHAN Wai-kit Penlington JA had this to say:

"Has been said so often that an Appeal Court will not lightly interfere with the finding 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 the HO denied any form of assault. That was evidence which had to be evaluated but it was not."

15. In like manner, the evidence of the injuries sustained by the appellant was a matter which had to be evaluated before the magistrate could accept as true the version put forward by the prosecution witnesses as opposed to the version put forward by the appellant, or put forward on behalf of the appellant. And although he did refer to the medical evidence, the way in which he evaluated it involves to my mind a measure of speculation, not supported by the evidence.

16. In that sense I am of the view that the magistrate had not properly evaluated the defence put forward by those representing the appellant at his trial when he made the findings that he did. In my mind that leaves a lurking doubt that the defence was not properly considered by the magistrate.

17. In the circumstances of the case it is with some reluctance that I quash the conviction of the appellant on both charges. The appellant will be discharged and the sentence is set aside.

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie
Date: 28 March 1998