HKSAR v. CHEUNG CHI WING AND ANOTHER

HCMA146/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.146 OF 2005

(ON APPEAL FROM TMCC 1687 OF 2004)

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JUDGMENT

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1. This is an appeal against a magistrate’s order in refusing an application for costs after the two appellants were acquitted after trial on one charge of assault occasioning actual bodily harm.

2. The two appellants together with one other person were jointly charged in the Magistracy with assaulting the 1^st prosecution witness on 25 May 2004 at a restaurant in Tai Tong Village, Yuen Long, New Territories.  The evidence against the appellants at the trial was based substantially on the correctness of the identification by the prosecution witness of the three assailants.

3. The assault took place at around 6 p.m. and there was no dispute that three males went into the private area of the restaurant where PW1 and his friends were chatting and drinking.  When asked about why they were there the three men left only to return shortly afterwards and one of them attacked PW1 with a rod.  The group then fled.  The witness gave chase and reported the assault to the police by his cell phone.  At that point of time a police vehicle drove by and the witness stopped the vehicle and reported to the police officer on board.  He then boarded the vehicle and was driven around in the vicinity in the hope of intercepting the assailants.  After some 5 to 10 minutes and at a spot some 2 kilometres from the restaurant the witness claimed that he was able to recognise the three male persons who at the time were walking near a road junction some 30 to 40 feet away from the police vehicle.  The police officers alighted and all three persons were intercepted and arrested.

4. Under caution, the 1^st defendant, the 1^st appellant in this case, said, “Ah Sir, I do not know anything.  I have just played at my friend’s home.”  The 3^rd defendant, the 2^nd appellant in this case, said under caution, “I’m just taking a stroll here.”  The 2^nd defendant who is not a party in this appeal said, also under caution to the effect :“It was the two friends of mine who hit.  I was responsible for looking out.”  There was no dispute as to the voluntariness and accuracy of what was said by the appellants after caution.

5. Mr Acton-Bond who also appeared at the trial in the court below made a submission of no case to answer based on the poor quality of the evidence of identification at the close of the prosecution’s case.  The magistrate ruled that “It’s barely a case to answer.”

6. The defendants elected not to give evidence and no defence witness was called although an Alibi Notice was served on the prosecution previously.  After hearing the submission of the parties the magistrate acquitted the defendants of the charge.  In the magistrate’s oral reasons, he said :

“	…
	And of course, it follows that there was no identification parade held by the police subsequent to the arrest of the three defendants.  Thus the prosecution’s case rely on the sole identification evidence given by PW1.
	I am sure PW1 endeavoured to account for what happened, but after reviewing all his evidence carefully I have to agree with defence counsel’s submission, labelling him as a reckless witness, and that happened in many aspects of his evidence; and to a great extent affect the overall reliability of this witness, especially on his identification evidence, even the arrest of the three defendants took place rather shortly the attack on him.
	…
	And the circumstances of how PW1 able to identify those defendants cannot be said as satisfactory. He was in a moving police van and the van had passed a road junction when this [sic] three defendants emerged, and spotted by PW1. And the closest distance between PW1 and those three defendants was 30 feet away from them [sic].  And one can imagine when he saw these three defendants emerging while he was on a moving vehicle, it must be a split-second sight of those three defendants.  For reasons unknown, after the police vehicle stopped, PW1 did not at any time go out and approach the three defendants and identify them to the police.
	And I have also consider the other aspects of evidence given by W1. And he had testified that he assumed the three defendants were holding rods but he did not in fact see that. He only saw one, that was the attacker who attacked him holding a rod in his hand. This is only one example I ― I picked out in this brief reasons of verdict, and there are more.
	Thus, in the light of PW1’s evidence, his identification evidence is so unsatisfactory and thus rendering it unsafe for the court to rely on.”

From the above passage, it was clear that the magistrate had applied the Turnbull direction, considered the quality of the identification evidence and came to the conclusion that such evidence from the prosecution witness was unsatisfactory and hence his decision to acquit.

7. In the course of his deliberation on the application for costs the magistrate had referred to the cases of Tong Cun Lin v. HKSAR, FACC1/1999; HKSAR v. Li Siu Tong and Others, HCMA547/2000; A.G. v. Wong Yat Cheng and Another [1983] HKLRD 294 and HKSAR v. Tsang Chun Chiu, William, HCMA403/2002.  He said in his Reasons that he acquitted the appellants and their co-defendant not because he disbelieved or rejected PW1’s evidence but only because he gave them the benefit of doubt.  However in this case the only evidence against the defendants was that of the correctness of identification by the prosecution witness and I can see no distinction on the reasons of acquittal based on rejecting the prosecution witness’s evidence or giving the defendants the benefit of doubt.  The doubt that was given to the appellants must have arisen from the poor quality of the prosecution witness’s evidence.

8. The magistrate stated in his Reasons that despite PW1 being an honest witness, he has reasons to suspect that the identification could have been mistaken because it was made under difficult circumstances.  The witness was described as ‘reckless’.  It is therefore difficult to see the rationale behind the magistrate in refusing costs on the basis that the defendants were acquitted because they were given the benefit of doubt.  The reason he stated can hardly stand up to any logical reasoning.

9. The 2^nd ground which the magistrate stated as his refusal for costs was that the alibi witness whom the applicants intended to call at the trial would have given evidence which would have been inconsistent with the appellants’ assertion that they were not at the scene of the attack.

10. With respect to the magistrate he had committed three errors in his approach.  This is the relevant passage in his Reasons :

“

… The defendants in the present case had intended to call alibi witness.  They gave their notice of alibi.  They had intended to call one Yip On Wai to give alibi evidence on their behalf.  Such a witness was not called because I ruled there was no case to answer under the second limb of Galbraith.  Thus, I did not have the opportunity of hearing and assessing the alibi evidence.  However, in the light of the reply given by each of the defendants after caution, it is fair and proper for me to anticipate that if the alibi witness did give evidence, his evidence would be inconsistent with the reply given by the defendants.  …”  [Emphasis added]

11. The magistrate was clearly mistaken when he said he ruled that there was no case to answer based on the second limb of Galbraith.  As is apparent from the passage appearing in paragraph 5 of this judgment earlier when the magistrate ruled that there was “barely a case to answer”.

12. The other two errors arose from the way he dealt with the alibi evidence.  The alibi witness was not called to give evidence and the statement of the alibi witness was never produced or handed up to the magistrate at any stage of the proceedings.  When counsel for the appellants applied for costs, the prosecution resisted the application.  The court prosecutor was recorded in the transcript of proceedings as volunteering the following information :

“	… from the defence witness’ statement [the alibi witness’s statement], it would appear that, just before they were arrest [sic], if what the defendant witness said was true, just before they were arrest, all the three defendants were at this defence witness’ home.”

The prosecutor went on to comment that had the defendants been at the home of the alibi witness prior to their arrest, they should have volunteered this information to the police when cautioned.  Their failure to do so, the prosecution argued, has the effect of bringing suspicion upon themselves.

13. There is nothing in the transcript of the proceedings to suggest that the magistrate had ascertained the contents of the statement of the alibi witness.  He accepted what the prosecutor said in this respect and acted upon it.  Even if the magistrate was legally entitled to have done so, which was not, the response by the 1^st and 2^nd appellants were in no way inconsistent with their defence of alibi.  They have informed the police in the first available opportunity that they were not connected with the assault.  The magistrate had erred in law in receiving and interpreting the evidence in the manner as he did.

14. The magistrate also adversely commented that the response of the 2^nd defendant when cautioned was inconsistent with those of the appellants’ in that the 2^nd defendant admitted to the police that he was present during the attack and he only acted as a lookout.  It is trite law that the admissions of a particular defendant under caution is only evidence against himself at his trial, although this rule is subject to exceptions which do not exist in the present case.  It appears that the magistrate had relied on the evidence of the 2^nd accused as one of the reasons of his refusing costs.  This again is clearly a mistake in law.

15. The magistrate refused the application on his erroneous understanding and application of the law.  His order therefore cannot stand.  The appeal against the costs order of the magistrate is allowed.  The order is set aside and substituted with the following order : Costs of the trial and of this appeal be to the 1^st and 2^nd appellants who were respectively the 1^st and 3^rd defendants at the trial.  Such costs is to be taxed if not agreed.

16. I might just mention in passing that the 2^nd defendant at the trial had clearly implicated the 1^st and 2^nd defendants in his answer under caution which was to the effect that he was acting as the lookout while the others perpetrated the assault.  The voluntariness and the accuracy of the words uttered were not in dispute.  The evidence is therefore such that there is a possible case of conflict if Mr Acton-Bond continued to act on behalf of all three defendants.  It would have been prudent for Mr Acton-Bond to give serious consideration before taking up the brief and conducted the defence of all three defendants.