THE QUEEN v. WU WING-HONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 616 OF 1995

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JUDGMENT

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1. The Appellant was convicted on the 21st of April 1995 of one charge of Criminal damage contrary to Section 60(1) of the Crimes Ord. cap 200.

2. The case for the prosecution was that on the 9th of August 1994 a Police sergeant kept watch on an open air car park in Tai Po from a nearby multi story building.. He testified he saw a man in the car park don a pair of gloves, take a hammer and break the window of a parked car. That the man then move that car from its space and replaced it with another car. He then saw the man leave the car park and kept him under observation until he was arrested by others in the Police party. Another officer testified to the arrest and said the Appellant dropped a pair of gloves when approached and was carrying a bag containing a hammer. He testified that the Appellant was not carrying a torch.

3. The Appellant testified he went to the car park when he looked form his balcony and saw a vacant space in the car park. He placed his car in that space. It was common ground that the car found in the space after the arrest of the Appellant belonged to the Appellant. After he parked his car he said he checked other vehicles he owned in the car park then returned toward his home when he was apprehended. He said he did no damage, was not carrying gloves, a hammer or a bag but was carrying a torch.

4. A neighbour testified for the defence that after the apprehension of the Appellant he saw a torch in the hand of the Appellant. He gave no evidence as to the existence or otherwise of the bag, the gloves or the hammer.

5. The first ground of appeal related to a refusal by the Magistrate on several occasions to grant an adjournment to the Appellant. The first application came on the second day of hearing the 6th of April 1995. On the 12th of October 1995 there was an indication that the owner of the damaged car might not give evidence and that consequently the matter might not proceed. On the 26th of October that witness was in court and undertook to attend at the next hearing. On the 2nd of November the Appellant was told in court the matter would continue. On the 8th of November 1994 the Appellant was informed in court that the matter would proceed and a date was fixed for hearing. The hearing commenced on that date, the 3rd of April 1995, and was adjourned part heard to the 6th of April 1995 when the application for the adjournment to obtain legal representation was made by the Appellant and was refused by the Magistrate. Given the history of the matter I am not surprised by the refusal. The Appellant had ample time and warning that the matter was to proceed and took no steps to obtain representation.

6. At the end of the day on the 6th of April 1995 the matter was adjourned part heard to the 12th of Aril 1995. The matter was heard on the 12th of April 1995 and was adjourned part heard to the 13th of April 1995. On that day after the Appellant had completed his evidence in cross examination he addressed the court and advised the magistrate he wished to call five defence witnesses. Then there was what must have been a short adjournment followed by the Appellant giving evidence in re examination. He then called one defence witness. On the completion of the evidence of that witness the transcript reads "case" and thereafter the prosecution addresssed on the facts. After that the Appellant sought an adjournment to call further witnesses and that application was refused on the basis that the Appellant had already had a full opportunity to present his evidence. Notwithstanding the arguments of Mr. Mumford that initially the Appellant was not sure if this matter would proceed and that the prosecution had been granted a number of adjournments and thus the Appellant should have had his adjournments I am satisfied the Magistrate exercised his discretion not to grant the adjournments in a proper manner.

7. The second and third grounds of appeal argues that the Magistrate failed to consider adequately the lighting conditions in the car park. Mr. Mumford argues that the Magistrate should have approached the evidence of the watching Sergeant on a basis akin to Turnbull [1977] QB 224. I do not agree. This was no a matter of identification by the sergeant. The sergeant testified he saw the same figure break the window, move the car and apprehended by the Police who found the Appellant was the man concerned. The magistrate took into account the distance from the Sergeant to the car park (including that he found to the distance to be greater than that estimated by the Sergeant) the use of binoculars and the available lighting which he clearly found to be adequate. This is a typically factual situation where the Magistrate is in the best position to evaluate the evidence and unless there has been an error in approach or logic a court on appeal should be slow to interfere.

8. The fourth ground of appeal related to a contradiction between the evidence of PW3, a police officer, and DW2 the witness for the defence. The former said the Appellant was not carrying a torch, the latter said that he was. The Magistrate found both PW3 and DW2 credible witnesses but made the observation that there was " in some respects conflict between the two." Latter in his findings the Magistrate found that this discrepancy was not material and that the evidence of PW3 was not shaken by it. The same went for a contradiction he found between the same two witnesses as to whether the Appellant said anything when confronted by the Police. The are frequently matters of fact in conflict between witnesses who are found to be credible. A Magistrate has to decide whether the facts in conflict or the fact of conflict itself warrants a particular finding as to credit or raises a doubt in respect of the case for the prosecution. Here the Magistrate after considering the nature of the conflict found it did not affect the credit of PW3 and did not affect his decision as to guilt. I cannot say that he was wrong.

9. The fifth ground of appeal argued that if the Appellant had broken the window there would be glass on his clothing, there was not and the Magistrate failed to consider the significance of that absence. The was no evidence as to whether or not the inward breaking of a pane of the particular glass which forms a car window would or could cause glass to adhere to the clothing of the breaker of the window. The Magistrate had no need to consider this point.

10. Ground six argues that the Magistrate failed to appreciate the conflict between the evidence of PW3 and DW2 in as much as it showed the Appellant was carrying a torch at the scene and not a bag containing a hammer. It is clear from the evidence that the Appellant was not clearly seen by DW2 until after he had been apprehended. He said: "When I first saw Defendant he was already seized by them, that's why I didn't see anything seized from defendant." The witness averred he saw the Appellant holding a torch but that is not inconsistent with the prosecution evidence that a bag with a hammer was taken from him when he was apprehended. The only conflict is the evidence in respect of the torch and I have dealt with that mater.

11. Ground seven relates to a question by the Magistrate to the Appellant as to whether he knew why the car was damaged and moved from its space. In his findings the Magistrate refereed to this question and its answer in his finding in respect of the credit of the Appellant. The Magistrate was entitled to ask the Appellant if he knew why the act had taken place. The Appellant need only have answered in the negative. He chose not to do so and the Magistrate was entitled to look to the nature of that answer in his determination of the credit of the appellant.

12. Ground eight argues that the Magistrate failed to consider the improbability of the Appellant having carried out this act in a brightly lit car park surrounded by neighbours just after midnight or that DW2 failed to hear the sound of breaking glass.

13. As to the first proposition it is inherent in the evaluation of the evidence of the Appellant and the weight to be placed on the evidence of the prosecution that the general probability of an act being performed is taken into account. As to the failure by DW2 to hear the sound of breaking glass this is a minor point which did not warrant being addressed by the Magistrate.

14. The appeal against conviction is dismissed.