HCMA 554/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 554 OF 2009

(ON APPEAL FROM TWCC 828/2009)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted in Tsuen Wan Magistracy by Mr J T Glass, of two charges of wounding (charges 1 and 3) and (as an alternative to wounding) assault occasioning actual bodily harm (charge 2). He was sentenced to a total of four months’ imprisonment. This appeal is against conviction and he has been on bail pending appeal.

2.  The charges arose out of an incident on the night of 22 November 2008 at a bus terminus in Kwai Ching, in which it was alleged that the appellant was amongst a group of males of South Asian origin who had become involved in a dispute with three local Chinese males at a food stall next to the bus terminus. The dispute moved to the bus terminus where it was alleged that the South Asians (also referred to at trial as “non-local” men) attacked the Chinese (“local”) males, using belts which they had removed from their trousers; and that the buckles of the belts caused the wounds or the actual bodily harm referred to in the charges.

3.  The principle issue was whether it was established that any such attack had taken place and, if so, whether the appellant participated; or whether, as was the principal line of defence, the appellant himself had been assaulted by the local males. His case was that no attack using belts had taken place at all; or if it had, he had not seen it, and the attackers must have escaped. The prosecution case was that the attack, which was fairly short lived, had occurred, and that the appellant had been apprehended by the victims at the scene and held until the police arrived. He was thus identified as one of the attackers. Two belts were found at the scene.

4.  Five prosecution witnesses were called to give evidence: the three complainants, PWs 1, 2 and 3; and two other witnesses to the events. PW4 was a waiter at the food stall and described the events there and at the bus terminus. PW5 was a student who had been on the upper deck of a bus arriving at the terminus, from which he had seen part of the events. He had alighted from the bus and seen some more violence.

5.  In his statement of findings, the Magistrate discounted the evidence of the three complainants. He said, “I was not impressed with PW1, PW2 and PW3. I gave their evidence no weight as I found, inter alia, that PW1 and PW2 did not give a true picture of their own involvement in the incident; and PW3 was not frank about his criminal record, and he also gave evidence that was not supported by his witness statement”. The Magistrate went on to rely on the evidence of PW4, “an honest and reliable” witness, who could be regarded as independent, together with PW5, also honest, reliable and entirely independent, to provide a foundation for the conviction. He rejected the evidence of the appellant and that of his witness, his brother.

6.  Later in his statement of findings, the Magistrate expressly considered and rejected the possibility that the appellant was acting in self defence during the incident: no complaint is made about that finding in this appeal. Self defence was not an issue.

7.  Before I turn to the grounds of appeal, let me say that as well as the statement of findings, I have read a transcript of the evidence of PW4, PW5, the appellant and his witness, together with the exhibits: those included the appellant’s interview with the police, about a week after the incident, which was admitted by consent.

8.  The perfected grounds of appeal acknowledge the accuracy of the Magistrate’s statement that the case turned entirely on the credibility of the witnesses. No complaint is made about the rejection of the evidence of PWs 1, 2 and 3. The thrust of the appeal is to say that the evidence of PW4 was inherently unreliable and should have been rejected; and that the Magistrate was wrong to place any reliance on the evidence of PW5, and that the evidence of the appellant’s brother should not have been rejected.

9.  A very brief summary of PW4’s evidence is that on the night in question, a group of local males who were regular customers at the food stall where he worked became involved in a dispute with a group of South Asian males who were also eating at the food stall. One of the South Asian males, whom he identified as the appellant, threw a chair towards the local males, though it did not hit anybody. Both groups then left the food stall and went towards the bus station, arguing all the way. Then fighting started and at first no weapons were used; but then the South Asian males, of whom there were three, removed their belts and used those to strike out wildly. All three removed their belts. PW4 initially said that two of them used the belts to strike the other men. When asked further, he said that all three of them used the belts to strike blows. He was not sure who hit which of the complainants, some blows did not land on their targets: if they had, he said, the injuries would have been greater; but the injuries which he saw were caused to the complainants by the buckles on the belts. He tried to stem the bleeding on the head of one of the complainants. Two of the attackers were still at the scene when the police arrived, one of whom was the appellant, who was being restrained by the complainants. One of the attackers put the belt he had used back onto his trousers. Of the others, one dropped his belt on the ground and the other threw his over a railing. Those two belts were recovered by the police. PW4 described the lighting conditions as being “not the best” for the initial stage of the fighting; but inside the bus terminus, when the belts were used, the lighting was much brighter. Nothing obstructed his view. He agreed that the scene was very chaotic, with blows being struck by different attackers to different victims at the same time. There were no South Asian males in the vicinity at the time other than those engaged in the attack.

10.  PW5 said his initial view was from the upper deck of the bus. He saw some fighting and then he saw two of the South Asian males, the “non- locals”, use leather belts to hit the local males 6 to 7 times. Then he got off the bus and he saw the attack continuing for 10 seconds or so. Then the police were called. He saw only two people wielding the belts. Nothing obstructed his view.

11.  The appellant, who was a man of clear record, gave evidence that he had been drinking beer at the food stall when a dispute arose with the other men, one of whom threw beer into his face, which caused an exchange of foul language. He then went to the bus station, where he was standing next to his wife, when a number of Chinese males, including the one who had thrown beer at him, approached, and started hitting him. He was grabbed by the neck and held on the ground. He was also kicked by two or three males. His brother, who was called as a defence witness, had gone to the toilet at this time, and shortly after, he returned. The police arrived. He had not seen anyone use belts to attack South Asian men. He thought it was possible that anyone who had attacked the other men had already left and that the complainants had decided to frame him: he did not assault anyone. He agreed that when he was interviewed by the police a week or so later, he mentioned nothing about the beer throwing incident at the food stall: indeed he told the police that when he was approached by the men in the bus terminus, he had never seen them before and he did not know why they had hit him. He agreed that he had given an untruthful account but said he had done so because he was scared that in the future they might hit him or his kids. He also said that at the time of the interview he had forgotten about this aspect of the incident.

12.  The appellant’s brother gave broadly consistent evidence. He said he had been in the toilet for much of the relevant time. He said that one of the belts which had been recovered belonged to him.

13.  This is only a brief outline of some of the evidence but it gives a sufficient flavour of what was said. It has not been argued that the Magistrate was wrong to reject what the appellant, and his witness, said in evidence. The Magistrate reminded himself of the effect of the appellant’s clear a record; but, given the conflict between the appellant’s evidence and his police interview, and his failure to give any tenable explanation as to how the victims had sustained their injuries, it is hardly surprising that the Magistrate came to the conclusion that he was sure that the appellant was not telling the truth.

14.  Turning more specifically to the grounds of appeal, it is said that PW4’s evidence should have been rejected as biased, unreliable and contradictory. Firstly, PW4 accepted in cross-examination that he had a criminal record, including a number of convictions for theft. It was submitted that this made him an inherently unreliable witness with a tendency for dishonesty. Mr Sadwani, for the appellant, argues that this matter should be seen in the light of the other deficiencies in his evidence, which when combined, should lead to the rejection of his account.

15.  The Magistrate took particular care to examine PW4’s evidence in the light of this record, together with the fact that he had known the complainants as customers before the incident; but he concluded that the witness’s evidence was not undermined by this and that PW4 had shown himself be an independent witness, not following a rehearsed account or simply speaking in support of the victims.

16.  I note that there were a number of examples in his evidence when the witness showed himself to be balanced and unbiased. Just for example, he agreed in cross-examination that he had seen the local males, the victims, hitting the appellant; and he added, “Both parties were fighting ... and I could not rule out the possibility that the locals have hit the defendant. But what happened afterwards, well, I can describe it as the locals having no ability to fight back”. I am satisfied that there were ample grounds to conclude that he was a balanced, cautious, observant and reliable witness.

17.  It is submitted that at certain points he was vague: but the examples given are consistent with a witness who was trying not to guess atmatters about which he was not sure, for example: Question, how many times did they use the belt to strike? Answer, I cannot be sure.

18.  A further challenge to his reliability is mounted on the footing that he appeared at one point to say the two attackers used belts and then, at another, that it was all three. However, it is clear that at all material times, he referred to three of the South Asian males removing their belts, that at one point two were involved in using those belts; and at another point he was sure it was all three. This issue did not undermine him. As the Magistrate said, this was a moving event and what PW4 described was an initial attack by two followed by an attack by all three. This conclusion was justified on the evidence.

19.  In the end, there was no sound basis to doubt PW4’s account of events and the Magistrate was right to rely on him as principal source of evidence as to what had happened. As the Magistrate found, there was manifestly a joint enterprise to attack the victims using belts and all three of the South Asian males were part of the enterprise.

20.  PW5’s evidence was attacked on two main grounds, namely that he said he had seen only two of the South Asian males attacking the victims, and not three as PW4 said; and there was a conflict between his evidence that one of them was wearing a dark chequered shirt, and his witness statement, in which he said that particular attacker was wearing a light coloured short sleeved T-shirt. This conflict in the description of clothing led the Magistrate to discount his evidence as to description and to place and no reliance on him in that regard. The Magistrate was perfectly entitled to take that approach, rejecting or doubting part of a witness’s evidence does not inevitably lead to rejecting or doubting all of it.

21.  As to the number of attackers, PW5’s view was initially for about one minute from the bus, and then was interrupted whilst he descended from the upper deck. He then viewed the scene for a few seconds from the ground before leaving. The Magistrate explained in some detail why he was satisfied that PW5 had not noticed the third attacker from his two positions of viewing the incident. It did not lead to any doubt about the fact that there had been, on PW5’s account, a concerted attack by the use of belts. That was a proper approach.

22.  There is nothing in a point taken about PW5’s description of the distance from which he was viewing. I am in no doubt that PW5’s testimony could properly be regarded as supportive of PW4’s evidence and the Magistrate was right to treat it as such.

23.  In the end, the case against the appellant was sound. There was a proper basis to be sure that these witnesses were reliable in all material aspects and that following the initial trouble at the food stall, during which the appellant threw a chair, he was part of a joint attack in the bus terminus in which belts were used as weapons which caused the admitted injuries, the wounds referred to in charges 1 to 3 and the actual bodily harm in charge 2.

24.  The appellant was properly convicted of these charges and his appeal is dismissed. He must now serve the sentences which were imposed.