HONG KONG SPECIAL ADMINISTRATIVE REGION v. CHEUNG Chi-shing

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 394 OF 1997

(On appeal from WSC 19811 of 1996)

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J U D G M E N T

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1. The appellant, CHEUNG Chi-shing, was convicted after trial on a charge of assault occasioning actual bodily harm. He now appeals against the conviction. Although there was some slight discrepancies as to the actual injuries suffered by Miss PANG, who was the victim of the case, there was no dispute that she had been assaulted on the date in question, namely, 15 November 1996, and that as a result of the assault she suffered bodily harm. The only issue was therefore whether the appellant took part in the assault, whether he was part of the concerted effort to assault her.

2. Miss PANG, the victim, worked for a real estate agency. The facts revealed that the appellant and his wife had instructed the estate agency in question to sell their property at the Whampoa Gardens. The appellant's wife had signed some sort of an agreement with the estate agency which provided for the payment of a commission of some $42,500 upon the completion of the transaction. On 15 November 1996, Miss PANG went to the office of a solicitor, Messrs Gallant Ho & Company in Jardine House with the view to sign certain documents by the wife of the appellant.

3. For reason which was not readily known, the wife of the appellant did not sign the assignment in question. And according to Miss PANG, upon leaving the office of Messrs Gallant Ho, she asked the appellant for the payment of the commission in question. The appellant refused, and said the matter was being handled by his wife. The appellant tried to walk away, but he was restrained or stopped by Miss PANG. The appellant then suggested that they should wait for two friends to come. They could then go to Miss PANG's office to resolve the dispute.

4. Some 40 minutes later, two women arrived. The group then walked to the carpark. Apparently the appellant had parked his car in that particular carpark. As the appellant was walking, he was walking in front at a distance of about five feet ahead on the right of Miss PANG and the two women walked behind Miss PANG. Miss PANG then said the two women looked fierce and they were scolding, scolding her in foul language. According to Miss PANG, all of a sudden without her realising or expecting it, the two women behind pushed her and she lost balance and fell, and in fact she said she fell towards the appellant.

5. According to Miss PANG, the appellant then pressed her head down on the flower bed. She said she was then hit, many blows landed on her body, and in the course of the assault, she tried to use her hand to ward off the blows, but her left hand was then bitten by someone. For obvious reasons, she was unable to describe precisely who did what at the time of the actual assault.

6. At some stage after the assault, which she described to have lasted two to three minutes, the assailants, including the appellant, ran off. She then made a report to the police. At some stage of her evidence, Miss PANG said or insisted that the appellant was involved in the assault.

7. The appellant did not dispute that he had a dispute with Miss PANG over the payment of commission. In the course of the dispute, he said Miss PANG held his sleeve to prevent him from leaving. He then called his wife who said she was busy and would send someone along to his assistance. Two women then came. The appellant said only one of them was known to him, but a mere acquaintance. After the arrival of these two women, he did not introduce them to Miss PANG, he simply told them to discuss about the matter at her office.

8. According to the appellant, the three women then argued, and in fact started to push one another. He tried to stop them, but was unsuccessful. He then left on his own. He said he did not take part in assaulting Miss PANG.

9. As counsel quite rightly observed, one of the important issues on this aspect turns on the credibility of the witnesses including the victim, Miss PANG, and the appellant himself.

10. In that regard, I must say the learned Magistrate had carefully assessed the evidence presented by the parties. He clearly had also taken into consideration the evidence of Miss PANG and the content of the statement that she gave to the police after the incident in question. He also took into consideration, quite rightly, the fact that the appellant was a person of previously good character.

11. Nevertheless, the learned Magistrate rejected the evidence of the appellant, and accepted that of Miss PANG. Such findings of facts, which were matters that should not and could not be disturbed by an appellant Court. The issue that I have to consider was even on such findings of facts, whether the charge against the appellant could be supported or whether there was any lurking doubt about his guilt.

12. It appeared that the learned Magistrate convicted the appellant on the basis that it was the appellant who not just initially pressed Miss PANG down, but continued to do so while she was being assaulted. On this aspect, I note with some anxiety that there was in fact no evidence how long she had been pressed down. Apart from a brief reference by Miss PANG that the assault itself lasted a total of two to three minutes, she had not been asked specific questions as to how long she had been pressed down.

13. On the evidence, I cannot say that it was open to the trial Magistrate to conclude, as he appeared to have done so, that one could be satisfied beyond reasonable doubt that she was throughout the assault being pressed down so that the other, namely, the two women, could assault Miss PANG.

14. I have, as I said, considered the evidence in this aspect with some degree of anxiety and care. I have come to the conclusion that it was possible that the appellant could have pressed down the victim in an attempt to restrain her, because Miss PANG was either falling or dashing across him, and then the other women took the opportunity to assault Miss PANG without him participating in the assault itself. If that was the scenario, it could not be said that the appellant was part of the concerted effort to assault Miss PANG.

15. I have said that, on the evidence, the finding that the appellant in fact continued to press down Miss PANG to enable the other two women to assault her might not be justified, when there was no evidence, as I said, as to how long the pressing down itself lasted, and whether it was the appellant himself who pressed down the victim throughout the period of the assault. As I said, the evidence of Miss PANG on such aspect was not entirely clear, and no doubt one could not really put any blame on her, bearing in mind, that all this lasted a very short period of time, and the situation must be very chaotic. It could not reasonably be expected that Miss PANG, even asked, could be in a position to throw too much light on such aspect.

16. As I said, the evidence in its entirety was consistent with a scenario whereby the appellant was only responsible for the initial pressing down, so to speak, and it was the other women who then took the opportunity of assaulting her, and in the course of doing so, might have taken part in pressing down the head of the victim.

17. The evidence on its entirety no doubt suggested such a conduct on the part of the appellant, was far from being satisfactory. But I cannot conscientiously say that the conviction against the appellant was a proper one in the circumstances. There is just a lurking doubt in my mind that while being responsible for certain improper behaviour, he had no intention and did not take part in the actual assault of the victim, Miss PANG. It was possible that it was just the other two women on the frolic of their own in assaulting and thus inflicting the injury on Miss PANG.

18. That being the case, the appeal must be resolved in favour of the appellant. The appeal is therefore allowed. The conviction is quashed, and the sentence set aside.