HKSAR v. PO KA LOK

HCMA 969/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 969 OF 2002

(ON APPEAL FROM KTCC 4515 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction and I am going to dismiss it. In explaining why, let me just briefly outline the facts that gave rise to the conviction for an assault occasioning actual bodily harm.

2. The victim was a man engaged in cleaning cars in Tseung Kwan O and he cleaned cars at two car parks. One was on the Sheung Tak Estate called Car Park B where the offence occurred; and the other was nearby at Tung Ming Court. He had a competitor. It was this appellant. There was a dispute about who should clean the cars at which car park.

3. The victim received a telephone call from the appellant who asked that there be a meeting. A meeting took place, it was at 1.30 in the morning on Car Park B to which I have referred. The victim was alone, the appellant turned up with two others. They argued about their areas of their operations for 15 minutes there on the car park. The evidence revealed that the only person of the three doing the talking was the appellant.

4. After the 15 minutes had elapsed, a second group of three arrived and within five minutes an assault took place. Of the second group, one man was prominent in it and he did the talking. His words were described as being loud and violent. He claimed that he was a member of a triad society and he threatened the victim.

5. In the 15 minutes of conversation that had occurred, the appellant had been proposing that the victim carry on doing his car park cleaning at Car Park B, but he stay away from Tung Ming Court. This man who spoke, being the leader of the second group that arrived, threatened the victim with assault if he continued to work at Car Park B. Having issued the threat, this leader of the second group then punched the victim in the face. The victim went to the ground and he says the group of six attacked him. He was kicked whilst he was on the ground. When he was questioned further about the role of this appellant in that attack by the group, he very fairly conceded that he could not actually say he delivered any kick or blow. In other words, he had the appellant as being part of that group, but could not say for sure that he delivered any sort of blow to him.

6. After the assault, he describes the group all walking off together slowly. The assault took place on the 2nd floor of the car park and the group stayed together and went down to the ground level. About four of them got in one motor car and departed together, the other two went in another way.

7. At the trial, the victim was the only witness called; the appellant did not give evidence. The appellant was on trial before the magistrate for three offences; claiming to be a member of a triad society, criminal intimidation and the assault. At the close of the prosecution case, the magistrate dismissed the first two charges.

8. Today, counsel, Mr Raymond Yu, who appeared below, advances arguments based on three main areas. The first area concerns the actual facts of whether or not the evidence established that the appellant was the man talking in the first group of three. He was identified to the police whilst working at a car park some five or so days later.

9. The first submission Mr Yu makes is that because the victim agreed that the lighting was very dim, the magistrate could not be sure that it was this appellant to whom the victim had been talking. The idea that you can talk to a man face to face on a car park such as this and not see his features, is frankly laughable. That suggestion was not made to the witness below; if it had been, I have absolutely no doubt he would have rejected it. The idea that this conversation for 15 minutes was held in the dark so he could not take in the features of the man he was speaking with, is not to be countenanced. There is nothing in this point.

10. It was also argued that there should have been an identification parade because there was, in effect, sufficient evidence to make the appellant here a suspect. In my view, the police did not have sufficient evidence to identify him; it was quite proper for them to wait until the victim said, "That's the man". Of course, once that sort of identification had taken place, there was no point in having a further parade.

11. The third point taken in this general area of looking at the facts was to say that the witness was unreliable and the basis of that is comparing his assertions saying that "six people attacked me" then it being clarified later that the appellant could not be identified as actually delivering a blow. All I need to say about this is that the magistrate saw and heard the witness and he was thereby in a much better position than I and that he trusted him as to the appellant doing the talking and staying in the group, as I have outlined. I find that there is nothing in the evidence that indicates that the witness was not to be relied on, and in fact if anything, it shows that he was a balanced and fair witness, who took care not to say anything to damage the appellant unless he was sure of it.

12. The second point made is that the magistrate should not have drawn the inference that he did which was that the continued presence of the appellant throughout the assault in fact encouraged those guilty of the assault and that the encouragement was intentional. It was on that basis that the magistrate convicted.

13. In my judgment the magistrate was perfectly entitled to draw that inference, and I draw it also today on the material available to me. The basis for it lies in the improbability of there being two separate disputes. It is fanciful to think that the second group attending at that very moment, in the small hours of the morning, at that car park, had come along with some separate grievance. The coincidence of the two groups and the coincidence of them both speaking of the car park issue as being the area of the dispute, indicates, in the absence of any evidence to the contrary, that the subject matter was one and common to a common interest between the two groups.

14. Once one infers that to be the case, then the fact is that it was this appellant's grievance; this appellant stayed there having heard the claim to be a member of a triad society, having witnessed the conduct of the leader of the second group, having heard the words of criminal intimidation uttered, having seen the first punch delivered; he continues there and he is in the group that surrounds the man who gets the beating. Afterwards, he goes away, walking slowly with the people who had carried out that assault.

15. In the absence of any evidence to explain that conduct, the inference it seems to me is overwhelming, that the appellant wilfully wanted that to happen and that he encouraged it by remaining there. This scene is one that is familiar to criminal lawyers in Hong Kong. It has all the features of someone calling the local bully into their dispute.

16. One only has to contemplate this: since the first inference I have referred to, that it was one dispute, sets the scene, one can ask if the man with the grievance had disengaged and gone away, would the bully boy have carried on with his assault? The answer to that it seems to me would be no.

17. I will move now to the third area in which Mr Yu advanced argument to attack this conviction. It was said that the verdicts were inconsistent. I disagree. It was never the prosecution's case that the appellant made the claim to be a member of a triad society himself or issued the threat. The case would have to be put on the basis of joint enterprise. What the evidence lacked was any indication as to exactly on what terms the appellant had enlisted the help of the leader of that second group, the bully.

18. The route by which the magistrate convicted of the assault occasioning actual bodily harm was not available on the facts to convict on the first two charges of making the claim to be a member of a triad society and criminal intimidation. That is because the magistrate took the view, which he was quite entitled to do, that no tribunal of fact could ever be sure what the terms of the agreement either were or were to be inferred between the appellant and the bully. Of course, as I have already made clear, the conviction on the third count, the assault, was not on the basis of joint enterprise in the sense of an agreement made beforehand.

19. So, it seems to me that there is a logical basis, based on the different evidence that applies to the first two charges and the third charge, to distinguish between them. Accordingly, there is nothing in this point about inconsistent verdicts. In those circumstances, the appeal against conviction is dismissed.