R. v. CHIN MING LOI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1454 OF 1996

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J U D G M E N T

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1. The appellant was convicted on 18^th November 1996 of one charge of claiming to be a member of a triad society and one charge of common assault.

2. The facts upon which the prosecution relied were that on 31^st May 1996 in the afternoon, a young man named Fung ("PW1") was at an ice-skating ring in Mongkok. He went there with a girl who was PW2. While he was skating, he said that a second girl whom he had seen before bumped into him. He was of the view that she did it deliberately. He said that he told his friend PW2 to go away and then the appellant came up to him and bumped him. He stopped to let him pass. Then he said the man ("the appellant") came up to him again and grabbed his upper garment with his right hand. He asked him what was the matter. The appellant replied saying "Do you know that you offended a friend of mine?". The appellant further said that his elder brother was looking after that place and that he, the appellant, was No.14. It was agreed that 14K Triad Society is a triad society in Hong Kong. He said the appellant told him to go outside the skating ring, PW1 declined. He was punched twice on his abdomen. He went to the telephone booth to telephone the police.

3. Miss Tsang, the girl, gave evidence that she accompanied PW1 to the ring, that she saw at one point PW1 standing with a male who can only have been the appellant. She had them under observation for one or two seconds only, but at that time the male's hand was raised to his shoulder level but not touching anything. She said that during the period of the one to two seconds that she saw them together, she thought they were friends.

4. PW3 was the girl who originally bumped into PW1. She gave evidence for the prosecution. She said that she did not deliberately bump into PW1, but after she had done so, she was on the other side of the ring about 50 feet away, and did not see what happened. But she did see that the appellant had gone over to PW1. She saw them talking together but could not hear what they said. She said and her evidence was :

"After Defendant went to PW1 I saw them talking but cannot hear. They spoke for 1 to 2 minutes. When Defendant spoke to Eric (PW1) Defendant was behaving normally like a friend. PW1 was also acting normally. I did not see any gesture made by the Defendant."

This witness further said that the appellant on speaking to her later said that he had told PW1 to be careful. Those words were not qualified in any way as to being careful about what. However, drawing an inference which must of course be drawn in favour of the appellant where there are competing inference, the proper inferences to be drawn in the circumstances is "to be careful when you skate".

5. The appellant gave evidence. He said that he saw PW3 accidentally bumped into PW1. He went to PW1 to apologize. He tapped PW1's shoulder and left. He said to PW1 his friend had accidentally bumped him and apologized. The conversation he said was less than one minute.

6. The grounds of appeal are firstly that the magistrate erred in failing to consider material discrepancies in the prosecution evidence. The first of Miss Remedios' points is that PW1 claimed to have sent PW2 away, but when she was tested with that in cross-examination, she said that it did not happen. The second was that PW1 claimed the appellant behaved very fiercely and grabbed his upper garments and punched him twice whereas PW2 said she had not noticed anything unusual. When the appellant spoke to PW1, he acted normally as a friend.

7. In respect of these grounds, the magistrate did have before him the discrepancy as to whether or not PW2 was asked to leave by PW1 on the basis that something might happen. He further directed himself about the evidence of PW1 :

"I am fully satisfied that notwithstanding some discrepancies in the evidence, PW1 was telling the truth when he alleged that the defendant stopped PW1 and then spoke to him."

8. There is however a larger discrepancy about which I must have some concern. In her evidence, PW3 said that she saw the appellant at a point after he had approached PW1. She saw them together for a period of one to two minutes. No estimate of the time is given by PW1 but from his description of event, it must have been a brief encounter. The appellant estimated the time of the encounter at one minute and that was not contested by the prosecution.

9. Witnesses are notoriously bad at estimating times unless they check the time against the clock. However, the only reasonable inference that can be drawn is that PW3 saw a substantial part of the encounter between PW1 and the appellant. A substantial part of the events of which PW1 complains are the grasping of his shirt, the angry and fierce manner and the punches to the abdomen.

10. There is a clear and substantial conflict between the evidence given by PW3 and that given by PW1. With respect to the learned magistrate, he did not address that major discrepancy. I accept from Mr Veltro that it is not for me to reassess the credit of witnesses. I accept that the magistrate was in a better position to do so and that a court of appeal should be slow to interfere with a magistrate's finding of facts. But on the evidence, there was a direct conflict between evidence of one prosecution witness and that of another which necessitated a resolution by the magistrate as to which of those two witnesses he found to be credible. An appellant is entitled to know to at least some degree how a judicial officer has resolved such discrepancies in cases where they are a direct conflict on matters essential to the elements of the offence. The magistrate did not deal with the credit of PW3 at all other than to refer to some discrepancies in the evidence referred to the conflict between the witnesses.

11. In all the circumstances, I am of the view that the conviction is unsafe and unsatisfactory and the appeal against conviction is allowed and the sentence is set aside.