THE QUEEN v. HO KIT AND OTHERS

IN THE COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 730 OF 1988

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BETWEEN

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J U D G M E N T

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1. The appellants were convicted affter trial in the Magistrates Court of the offence of common assault.

2. The prosecution case was that PW1 had formerly worked for the same company with which the 3 appellants were still working on the date of the incident, the 13th January, 1988.

3. PW1's evidence was that he went to the business premises in the early evening of that day after having made arrangements to go there in order to collect some personal items which he had left at the office. When he arrived he met the 1st appellant who allowed him to go to his former desk to recover his belongings.

4. It is common ground that there was then a dispute as to what he could and could not take, as a result of which he made a 999 call to summon police assistance. After the 999 call, according to PW1, the 3 appellants then assaulted him by punching him and kicking him, and pushing him against the wall.

5. The appellant's case was that after the 999 call PW1 was escorted from the business premises to await the arrival of the police. When a policeman did arrive shortly afterwards, the appellant met him outside the premises. PW1 agreed that, on meeting the officer, he made no complaint at all about being assaulted by the 3 appellants. PW1 accompanied the police officer into the business premises and on the police officer's request, the drawer containing the PW1's personal belongings was opened, and he removed his personal belongings.

6. The issue in the case was an issue of credibility, with PW1 saying he was assaulted, and the 1st appellant saying that he was not. There were, on the face of the record, difficulties in accepting the version related by PW1 Firstly, there was the fact that he made no complaint to the police officer immediately after the assault. That was conduct on the face of it inconsistent with his having been assaulted just a few minutes before. He was given the opportuity to explain that apparently inconsistent conduct and his explanation was that at the time he was tired and he did not know what would happen if he did complain, and that since he and the appellants were former colleagues that he thought they might be able to settle the matter. He further said that it was not until the next day when he found bruises on his body that he then decided to go to the police and make a complaint. It was elicited from him in cross-examination that what he told the police when he did complain was inconsistent with part of the description he gave of the assault when he gave evidence.

7. The defence case was that when PW1 came to get his personal belongings he endeavoured to take a document which was of importance to the company and he was prevented from taking it because the appellant's view was that this document would be helpful to PW1 in his new employment and detrimental to his former employers.

8. In convicting the appellants, the Magistrate recited the evidence which was given by the prosecution and by the defence. She came to the view that PWl was a truthful witness and that the 1st appellant was not and she accepted PW1's evidence and convicted him.

9. On this appeal, Mr Alderdice for all appellants points to a number of matters which should have led the Magistrate to hesitate about accepting the evidence of PW1 and that although the Magistrate made a favourable finding about the credibility of PW1 that, nevertheless, looking at this case overall, I should have a lurking doubt about the safety of this conviction. He alleges that because of the significant inconsistencies the Magistrateshould have indicated that she stood back from the evidence, as it were, and viewed it as an impartial arbitrator, that She appears not to have done that and to have too readily accepted the evidence of PW1.

10. I have no hesitation in saying that on a reading of the record my reaction was to have some doubts about the accuracy of the version which PW1 told. The difficulty, however, is that that is a reaction from reading the paper record. The Magistrate saw and heard the witnesses and was in a much more favourable position than an Appeal Court to assess the credibility of the witnesses.

11. The learned Magistrate quite positively found that PW1 gave a straightforward and undramatic account of the incident. She found that there was a lack of embellishment or exaggeration in his evidence. She found nothing inherently unlikely in it. She was impressed by the way that he stood up to cross-examination. And from her observations of him she specifically says she was satisfied that he was an honest witness, that he fairly, honestly and accurately related the events as they occurred and that is why she believed him.

12. In relation to the 1st appellant, she found that he was evasive, and was not a truthful witness. She did not believe him. She was satisfied that he was manufacturing his defence in an attempt to avoid the unpalatable truth that he had in fact attacked the first prosecution witness.

13. Impressive as the submissions of Mr. Alderdice had been in his attack upon the Magistrate's reason for coming to that conclusion and as eloquently as he has pointed out the difficulty which stands in the way of accepting the first prosecution witness as a witness of reliability and accuracy, I cannot go behind that positive finding of the "seeing and hearing" Magistrate about the reliability of PW1 as a witness. There is therefore no room, because of that finding, for me to have a lurking doubt about the safety of the conviction. I must therefore in the circumstances dismiss the appeal.