R. v. LI WANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 499 OF 1996

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J U D G M E N T

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1. This is an appeal against two convictions, one for common assault, the other for assaulting a police officer in the execution of his duty. The offences are said to have taken place on 19th September 1995. The appellant and the complainant occupied neighbouring rooms in a roof-top construction in North Point. On 19th September, the complainant, Mr Cheung returned home. The appellant was there with a friend. The complainant's evidence was that he then watched television; the appellant was drinking with the friend; that the appellant said something disparaging about the complainant; that there then followed an argument, and that the appellant then struck the complainant with his fist. There then followed a fight. The police were called and the two of them were taken away. A police officer gave evidence at the trial that in the van on the way to the police station, he and the appellant were sitting in the rear of the vehicle and that the appellant swore at the officer and then kicked the officer's head with his right leg and then kicked him again. The vehicle stopped, and the appellant was restrained.

2. The appellant gave evidence before the magistrate. He accepted that there had been an exchange of blows, but he denied that he had struck the first blow. He said that he and his friend were having dinner on the roof-top when the complainant, thinking that he was being maligned by the appellant, rushed forward and argued. Then the complainant struck the first blow which consisted of the push. The appellant's evidence was that he then argued with the complainant and immediately pushed him back, and the complainant pushed again. When I asked how he, the appellant, then reacted, the appellant said in evidence that he wanted to hit him back but he could not do so, because the friend was holding him, the appellant, tightly. The magistrate at that juncture of the testimony merely expressed the view that the appellant had not raised any issue of self-defence. So further questions to glean the appellant's reasons for striking the complainant were then put.

3. He was asked by his counsel in evidence why he pushed the complainant back, and although at one stage he said that he did so because he was acting in self-defence, he also said that he pushed him back because the complainant had struck the first blow, and also because several days earlier the complainant had an argument with him.

4. As for the incident in the police van, the appellant said that the police officer scolded him and that he, the appellant, wanted to leave the van, stood up, at which point the officer punched the appellant on the right side of chest, causing the appellant to fall over. He said that he did not strike the officer, at any rate not deliberately. It was put in cross-examination on his behalf that the kicking was accidental in the course of the appellant's fall. He said that he was handcuffed at the time.

5. A witness was gave evidence for the appellant; he was the third person on the roof that night. He gave evidence about the incident on the roof, but in so far as is relevant to this appeal, he too was in the van on the way to the police station. He said at one stage in his evidence that when in the van the appellant kicked the police officer once, although in cross-examination he seemed to resile from that suggestion, which was a suggestion clearly adverse to the appellant on the second charge.

6. The magistrate convicted the appellant on both charges. In his Statement of Findings, the magistrate summarised the evidence and then said that he found the complainant to be a distinctly unimpressive witness and very unreliable. However, he found the officer to be an excellent witness. As for the 1st charge, he was unsure who struck the first blow, but he said that the evidence demonstrated very clearly that they were mutual assaults on each other and that the appellant had not acted in self-defence. And therefore he convicted the appellant on the 1st charge.

7. Mr Wong, for the appellant, today attacks this finding, saying that there was no basis for it. There was, he says, clear evidence of self-defence and the magistrate should so have found and that his reasoning in convicting the appellant, having said that he was unsure who struck the first blow, was faulty. For reasons which I shall explain is not in the event necessary for me to decide the appeal on the 1st charge on this particular ground but I would merely say that it does not follow the any blow delivered by a person first attacked is necessarily in self-defence.

8. What has concerned me however in relation to the 1st charge, is that prior to the trial, the complainant had himself been tried for assault in relation to the same incident. He had been convicted. I am told today that that was on his own plea of guilty. Yet the prosecution did not reveal the fact of that trial or of that conviction, either to the court or to those acting for the appellant in the Magistrate's Court. After finding the appellant guilty, the magistrate said that the complainant was certainly lucky not to have been charged with the assault. Somewhat later, when the question of penalty was the subject of submissions, the magistrate said that in his view the complaint should have been charged as well. It was only then the court prosecutor revealed that the complainant had been convicted of assault in relation to the incident. The record shows that she said that she had asked her senior that morning whether to raise the question of that conviction, but had been told that it was not important, so she did not mention it. Clearly, the prosecution should have made the information known to the court and to the defence representatives. That she was told by someone senior to her in the hierarchy that there was no need to make that revelation is very disturbing. Either the superior officer to whom she referred has missed a fundamental point about the role of the prosecutor, or there is something seriously a miss in the training of prosecutors. If prosecutors are coy about revealing information which might be benefit to the defendant in criminal proceedings, then the system of criminal justice runs into trouble. It may be, I do not know, that the prosecutor superior officer assumed that the other side would in any event know about the earlier proceedings, but in any event I hope that the prosecuting authority will look into the matter.

9. The question however is what effect if any this non-disclosure should have on the conviction. Did the failure to disclose constitute as is contended in the grounds of appeal, a material irregularity in the course of proceedings? Material irregularity in the course of proceedings is, of course, a ground for disturbing a conviction. I have no doubt that the failure by the Crown to disclose to the defence material information in the course of a trial is a material irregularity. If authority is required for that proposition it is to be found in the judgment of the English Court of Appeal in the R. v. Maguire [1992] 1 QB 936. The fact that the main prosecution witness has been convicted of a criminal offence arising from the very same incident which forms the basis of the prosecution of a defendant in a subsequent trial, and an offence, to boot, of central relevance to the charge lay in the second trial, cannot be anything other than highly relevant.

10. The question that remains is whether that irregularity compels me to upset the conviction. I think it does. The magistrate approached the case on the footing that the complainant had indeed assaulted the appellant unlawfully. That is very clear from the passages in his Statement of Findings to which I have referred. So it might be said that in the circumstances no injustice resulted from the non-disclosure. That may be so, but as is now well-known, the High Court has not the power vested in the Court of Appeal to apply a proviso. The courts have long urged a change in the law in this regard but our representations have not been successful. That being so, I have no choice but to allow the appeal in respect to the 1st charge. Accordingly, the conviction in relation to that charge is quashed.

11. None of this affects the approach to the conviction on the second charge. I have to say that I find no material flaw in the magistrate's approach to that charge. He believed the police officer and he disbelieved the appellant. That being so, it seems to me, subject to the matters to which Mr Wong drew my attention and which I shall now address, that those findings lead inevitably to a conviction.

12. It is said that the evidence of the police officer as to how the assault took place was inherently unlikely, because the two of them were said to be sitting four to five feet apart at the time of the assault. I see little in this point. The officer described their distance in approximate terms and if indeed he was minded to fabricate a story, he would have ensured a more obvious scenario. I note too that the point was not considered to be of sufficient importance at the trial below to warrant even an mention in the submissions before the magistrate.

13. It is secondly said that the magistrate did not pay attention to the injuries of the two men which supported, according to the submissions, that which the appellant said, rather than the officer. I would comment that there were injuries to the officer which were consistent with his complaint. As for the appellant, I note that he was involved in a fracas earlier at his own premises and according to the prosecution evidence, there was a struggle in the van. These two incidents could easily have accounted for the injuries to the appellant, but in any event the Magistrate had the medical evidence in mind as is clear from his reference at page 44 of his Statement of Findings to the medical report which was produced.

14. Then it is said that the magistrate relied on the evidence of the defence witness as supporting the prosecution case, and that that was a faulty assessment given the fact that the defence witness made clear at a later stage of his evidence that he was gainsaying the police officer's account. In this particular regard, I note that all the magistrate says that "in some ways" that the defence witness's evidence was more supportive of the Crown case. I think that is an accurate assessment of the impact of that evidence, given that the defence witness did give evidence about this appellant delivering a kick to the officer.

15. Then it is said that the Magistrate failed to give any regard to the defence of the accident that had been put forward. I do not think that is a justified complaint. It is intrinsic to the Statement of Findings which the magistrate has produced that he has considered the defence offered by the appellant and has rejected it.

16. Finally, it is said that the first prosecution witness, namely the complainant in relation to the first charge, in giving evidence about the incident in the van would then gave conflicting evidence, and yet the magistrate has not referred to that fact in his Statement of Findings. There was no need for the magistrate to do so. It is perfectly clear from his Statement of Findings that he treated that particular witness as unreliable. In my judgment, it is also clear that he did not rely on that witness' evidence to support his findings of guilt in relation to the second charge.

17. In the event, therefore, I find nothing of substance in the complaint made about the magistrate's approach to the second charge, and the appeal against conviction in relation to that charge is dismissed.