HKSAR v. WONG ERWIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 436/2000

(On appeal from of TWCC 3468/2000)

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REASONS FOR JUDGMENT

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Introduction

1. The appellant originally faced one charge of Assault Occasioning Actual Bodily Harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance ("the said Ordinance"), Cap. 212, Laws of Hong Kong. The charge was subsequently amended to one of Common Assault, contrary to Common Law and punishable under section 40 of the said Ordinance. The appellant was found guilty of the charge after trial and was sentenced to one month imprisonment suspended for 18 months. He appealed against conviction.

2. The appeal was heard on 3rd May 2001. I allowed his appeal, quashed his conviction and set aside the sentence. I now give my reasons.

Facts of the case

3. The facts are relatively simple. The main witnesses to the alleged assault were PW1, his father PW2 and his mother PW4. They testified that the Appellant and another male (described as a 'coolie') fiercely assaulted PW1 by fists and kicks. PW1 was assaulted to such an extent that he fell to sit on the floor. PW2 and PW4 were pushed to fall on the ground after hitting the wall when they tried to intervene. A stool was thrown at PW1, which missed him. PW1's mobile phone was snatched by the Appellant during the assault but handed back to him afterwards. PW2 also lost his watch during the incident. PW1, PW2 and PW4 all sustained injuries during the assault.

4. The appellant was only charged with the assault on PW1.

Grounds of Appeal

5. The following three grounds of were submitted:

1. The Learned Magistrate has failed to resolve the conflicts between the evidence of PW1, PW2 and PW4 on the one hand, and that of PW6 (the police officer who attended the scene shortly afterwards) on the other;

2. The Learned Magistrate erred to place insufficient weight on the evidence of PW3 (the doctor who had examined PW1) and not to have resolved the conflicts between his evidence and that of PW1; and

3. The Learned Magistrate erred to employ different standards or attitude in assessing the evidence of the prosecution witnesses and the defence witnesses.

Reasons for judgment

For the purpose of the present appeal, it suffices for me to deal with the first two grounds only.

6. According to PW1, 2 and 4, the appellant and the coolie fiercely assaulted PW1, using fists and kicks. PW1 was the one who called the police. All testified that they had told the police officer attending the scene about the assault and the injuries suffered.

7. It is not in dispute that PW6 was the police officer who had attended the scene. He testified that PW1 never mentioned any assault on him. PW1 told him about an earlier quarrel between him and a Miss Li Ka-po (DW1) and there were pushing between the parties. PW1 was concerned that his parents who each had a medical condition might have been over-agitated and wanted them to be sent to hospital for observation. PW1 also said that he wanted to have DW1 and the employer for some reasoning when DW1 returned to work on the following Monday.

8. The Learned Magistrate found PW1 and PW2 to have 'downplayed' the issue initially. There is no evidence from either PW1 or PW2 that they have downplayed anything. To the contrary, their evidence was that they had told the police about the assault and injuries. In fact PW1 under cross-examination said that at the time when the police attended the scene, he had wanted the police to arrest the appellant and the other Chinese male as soon as possible and to prosecute the appellant (page 242 (D to E) of the Appeal bundle). Although PW1 did say two questions later that he wished the police would get those people back to make enquires, it remains part of PW1's evidence that he had wanted the police to arrest and prosecute the appellant and the other male. That is not the conduct of a person wanting to 'downplay' the issue.

9. There is also no evidence from PW6 that he believed PW1 had downplayed the issue.

10. When an assault of such severity occurred and the alleged victim called the police, it is reasonable and natural to expect the alleged victim to make a complaint to the police about the assault. The alleged victim may not be able to recollect everything or to relate the matter in its proper sequence, but one would still expect the alleged victim to relate the gist of what had happened. If the alleged victim did not immediately inform the police of the assault, one would also expect an explanation.

11. According to PW6, there was no complaint of any assault when he attended the scene. PW1, 2, and 4 said they did complain. The Learned Magistrate did not resolve the conflicts between these prosecution witnesses and made no specific findings whether he accepted the evidence of PW1, 2 & 4 and rejected that of PW6? Or vice versa? Without knowing what he had found as facts, it is impossible to know on what basis he came to the conclusion that PW1 and PW2 had downplayed the issue.

12. These unresolved conflicts throw doubt on the credibility and reliability of the evidence of PW1, 2 and 4.

13. Further, PW1 was allegedly so fiercely assaulted that he suffered injuries including a cut to his mouth which, according to him, took a few days to heal. PW3, the medical doctor who had examined PW1 did not find such injury. PW3 only found mild swelling on the left face of PW1 and no other external wound. PW6, in his evidence, said that he noticed red marks scattered on PW1's forearms. PW3 did not find any such red marks. The learned magistrate said in paragraph 21 of the Statement of Findings (page 18 of the Appeal Bundle):

"(I would comment here that; since the presence of these injuries was not challenged, it tended to suggest to me that I should not rely upon the Medical Report as if it were a certificate i.e. that the medical report was conclusive both as to the presence and as to the absence of injuries, caused at the time of the attack. I have, however, noted that there is a significant absence of other injuries observed.)

14. With respect, whether the presence of the injuries was challenged or not is neither here nor there. The fact of the matter is that PW1 complained of a severe assault. On the face of it, the independent medical examination shortly after the alleged assault did not support his allegation. Such medical evidence has a bearing on the credibility and reliability of PW1's allegation. It is for the Learned Magistrate to decide whether he accepted PW6's evidence that red marks were seen on the forearms of PW1. If so, how did he deal with the evidence of PW3 on this issue. More importantly, how did he deal with the apparent conflicts between PW1 and PW3 as to the injuries sustained. The learned magistrate has failed to resolve properly these conflicts.

15. The appellant was originally charged with Assault Occasioning Actual Bodily Harm. At the end of the prosecution case, there was a submission of no case to answer. The Learned Magistrate ruled against the defence and found that there was a case to answer. While the appellant was giving evidence, the Learned Magistrate of his own volition amended the charge to that of Common Assault. The reason he gave at the time was (paragraph 12 of the Statement of Findings at page 14 of the Appeal Bundle):

"....... Although there was a case to answer on AOABH. I felt I could not give judgment on the substantial merits and facts of the case unless the charge was so changed.........."

I must confess I fail to understand what the learned magistrate could have meant. He had found that there was a case to answer on Assault Occasioning Actual Bodily Harm. The appellant was giving evidence. There was no application from either side for the amendment. Why would he be worrying about "judgment" while the appellant was giving evidence to amend the charge by removing the element of actual bodily harm? After a ruling of a case to answer, whether the prosecution can prove its case to the requisite standard of beyond all reasonable doubt remain to be seen. It is for the learned magistrate to decide, at the conclusion of all evidence, whether he is satisfied that the charge of Assault Occasioning Actual Bodily Harm has been proved. If not, to further consider if his findings support a charge of Common Assault. By amending the charge to one of Common Assault at that stage of the proceedings, particularly in view of the conflicting evidence on the injuries allegedly sustained by PW1, the Learned Magistrate gave one the impression that he was already thinking of convicting the appellant on Common Assault before he has heard all the evidence. Justice has not been seen to be done.

16. For these reasons the conviction was unsafe and unsatisfactory and I therefore allow the appeal.