HKSAR v. CHAN CHUK SING

HCMA 376/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 376 OF 2004

(ON APPEAL FROM TWCC 62/2004)

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J U D G M E N T

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1. The Appellant was convicted after trial of one charge of attempted criminal damage, contrary to section 60(1) and section 159G of the Crimes Ordinance, Cap. 200, the Laws of Hong Kong. He now appeals against conviction.

2. This was not a complicated case and the Appellant was represented by counsel in the court below but he appears in person in his appeal.

3. The prosecution called two witnesses at the trial. PW1 was a taxi driver who had picked up the Appellant and after taking him to the required destination, the Appellant apparently threw $30.00 on the front seat and got out of the car. The amount of the meter was $31.80. PW1 therefore swore at the Appellant, PW1 then drove forward and made a U turn and then he found the Appellant in his path blocking the taxi. After PW1 was forced to stop, the Appellant then walked to the front of the taxi and hit the bonnet two to three times and then went to the driver's window. PW1 seeing this did not alight but called the police. Then the Appellant went to the passenger side of the taxi and PW1 said he heard noises coming from the left passenger side body of the taxi and then from the rear side of the taxi. When the Appellant stood away from the taxi, PW1 then drove away but he had to stop because there was a red traffic light. He then noticed the Appellant chasing up to his taxi and the Appellant then stood next to the driver's door and scolded him. PW1 called the police again and the police arrived. PW1 then checked his taxi and found a shoe mark on the left side of the passenger door and he said that the rear bumper had been damaged and he had not noticed this prior to the accident.

4. PW2 was a police officer who came to the scene. He said that the Appellant had told him that he was hit by the taxi and wanted to see a doctor, but he did not notice any injury on the Appellant. The Appellant denied that he had kicked the taxi but claimed that the taxi had hit him.

5. It was put to PW1 in cross-examination that the reason for the Appellant asking PW1 to stop the taxi was because of PW1's bad driving, but all the defence allegations were denied by PW1.

6. After the prosecution witnesses had finished their evidence, the Appellant elected not to give evidence, not call any witnesses. So the learned Magistrate only had the evidence of the prosecution witnesses before him to consider.

7. The learned Magistrate after analysing the evidence found that he was impressed by PW1 and he found that PW1 was an honest and reliable witness. The only reason the learned Magistrate did not accept PW1's evidence as to the damage of the taxi was because PW1 did not actually see the kicks. So, the learned Magistrate was in fact being more than fair to the Appellant in refusing to draw an irresistible inference that it was the Appellant who had caused the damage to the taxi. But, the learned Magistrate though he believed that there was not enough evidence to prove that the Appellant had damaged the taxi, nevertheless considered that this did not affect the honesty and reliability of PW1. The learned Magistrate also accepted the Government expert's report and his statement and the truth of his findings.

8. At the end of the day, the learned Magistrate decided that on the facts, there was sufficient evidence to prove the Appellant had attempted to criminally damage the taxi and therefore he properly then had the charge amended to one of attempted criminal damage rather than criminal damage. After the amendment, he gave an opportunity to defence counsel to recall any of the witnesses but defence counsel, after consideration, decided that that was not necessary.

9. It was clear that the defence counsel in his submissions had pointed out to the learned Magistrate everything that could be said in favour of the Appellant. The learned Magistrate then proceeded to give his oral verdict, but when he began his oral verdict, it was then discovered that he had not put the re-amended charge to the Appellant, so the re-amended charge was put to the Appellant and the Appellant then pleaded not guilty and the Court very properly then asked defence counsel if he wished to address the Court anymore.

10. The defence counsel Mr Powner very rightly said that he had nothing else to add and that he appreciated that the Court had to put the re-amended charge to the Appellant. The learned Magistrate then proceeded to give his oral verdict and convicted the Appellant.

11. The Appellant, on appeal, has submitted five grounds of appeal. His first complaint is that the learned Magistrate in amending the charge to attempted criminal damage did not state which part of the taxi. There is only one thing that I can say to this and that it is not necessary for the charge to specify which part of the taxi.

12. The second complaint is that the prosecution had not proved intent. There was no direct evidence of intent and the learned Magistrate could only infer intent from the actions of the Appellant and it was clear as the light of day that his intent was indeed to damage the taxi in the way he acted first of all by pounding on the bonnet of the taxi and subsequently by going around to the other side of the taxi and not letting the taxi leave. So, there was ample evidence for the learned Magistrate to infer intent.

13. As for the third ground of appeal, it was pointed out that the learned Magistrate only chose to believe part of PW1's evidence but did not believe PW1's evidence in relation to the damage, I have already dealt with that. The learned Magistrate is entitled to believe part of a witness's evidence and not believe part of it and that is totally within his discretion. As far as the damage was concerned, the learned Magistrate was being extremely fair to the defence by considering that he could not draw the necessary inference as to the actual damage to the taxi.

14. As for the fourth grounds of appeal, it was pointed out that there was no documentation to prove that the owner of the taxi was one Madam Tong Fong Ying. There is evidence in the trial from PW1 that the taxi belonged to his mother. This was in fact put by Mr Powner, defence counsel, to the witness and this was submitted by Mr Powner done and Mr Powner had pointed out that there was no documentary evidence as to the ownership. But PW1's evidence was not challenged on this point and the learned Magistrate is entitled to accept his evidence on this and nothing serious turns on this part. And finally, the Appellant complained that the learned Magistrate had delivered his verdict with such haste that it indicated that it was not a fair trial because the learned Magistrate did not take time to consider and that he had made up his mind prior to the amendment.

15. The only thing this court can say is that in the Magistrate's Court, a Magistrate has to handle many cases in one day. This was not a complicated case and the learned Magistrate would have all the facts in his mind by the time that counsel for the defence made his submissions. It does not mean that the learned Magistrate had come to his final conclusion prior to the amendment, but it does mean that the learned Magistrate was conscious of all the points that had been raised and this was a simple case and he was able to deliver his oral verdict immediately. I do not see that there was anything unfair to the Appellant, in fact, the learned Magistrate had acted properly throughout.

16. I see no merit at all in this appeal and therefore the appeal is dismissed.