HKSAR v. LUK HOI TONG

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1138 OF 1997

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J U D G M E N T

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1. This is an appeal against conviction for an offence of common assault committed on 22nd July 1997.

2. According to the brief facts of the case, the victim of the assault, PW1 as he was during the trial, was a driving instructor who was giving a driving lesson to a learner driver. That learner driver suddenly applied the brakes to the vehicle which he was driving and in consequence the Appellant who was driving his vehicle behind got off from his vehicle and approached the driving instructor, kicked his vehicle and punched him twice in the face.

3. This incident was witnessed by a colleague of the victim, that was PW3, who just happened to the passing-by. I just pause here to say that the Appellant was also charged with causing criminal damage to the victim's vehicle but that the learned magistrate aquitted him of that charge.

4. The Appellant's perfected grounds of appeal are in reality four-fold. Firstly, the learned magistrate wrongly placed reliance on the evidence of PW1 and PW3, given their relationship and given the inconsistencies and contradictions in their evidence and in what they initially told the police, and that his approach to those inconsistencies and contradictions was wrong in that he said in his statement of findings that where the evidence of PW1 and PW3 differed, he preferred that of PW3.

5. Secondly, that the learned magistrate was wrong to find as a fact that the Appellant had pulled open the left door and assaulted PW1 in his seat by punching and elbowing PW1's head and the upper part of his body when there was no evidence whatsoever that PW1 had been assaulted on the upper part of his body.

6. Thirdly, that the learned magistrate was wrong in attaching little weight to the medical evidence of PW2 which evidence was inconsistent with the evidence of PW1 and PW3.

7. And fourthly, that the solicitor representing the Appellant at his trial failed to adduce evidence of the Appellant's good character thus depriving the Appellant of the benefit of an appropriate direction given by the learned magistrate to himself when considering his verdict and when considering all of the evidence that he heard.

8. As to the first ground, I find myself quite unable to say in the light of the learned magistrate's statement of findings that he wrongly placed reliance on the evidence of PW1 and PW3. The magistrate was plainly alert to their relationship and to the inconsistencies in their evidence. He had the advantage of seeing and hearing PW1 and PW3 and assessing their credibility, and that is his function not mine. It is not for me to hear and to reassess evidence. Looked at on its own that ground must fail.

9. As to the second ground of the appeal, it does indeed appear to be so that there was no direct evidence from either PW1 or PW3 that the Appellant was assaulted on the upper part of his body. But there was evidence from PW1 in chief that following the assault upon him, his chest felt tender and the magistrate had done no more, in my view, than to attribute that injury not unreasonably to the general assault. And again looked at on its own, I can see nothing in that ground of the appeal.

10. Coming now to the third general ground of the appeal, I can see nothing in that either. The magistrate deals with the evidence of PW2 (that is the doctor,) in paras.11 and 12 of his statement of findings and he does so fully and in my view prefectly reasonably. I have read the transcript relative to this evidence and having done so, I am not in the least bit surprised that the magistrate took the view that he did of that evidence.

11. As to the fourth ground of the appeal, it is undoubtedly a fact that the Appellant was a man aged 31 of good character at the time of his trial and that the magistrate was not made aware of that fact. Post trial inquiries of the solicitor acting for the Appellant during his trial had revealed that the reason why this was so was because the solicitor, and I quote here from the correspondence:

"thought that such evidence was not relevant at the trial of this case but relevant to sentence in case that the defendant was convicted by the magistrate."

12. Quite plainly on all of the authorities quoted to me, the solicitor concerned was wrong about that albeit that I might just add that subject to that error, he appears to have conducted a valiant defence on behalf of the Appellant. The evidence of the fact of the Appellant's good character was relevant, both as to credibility and to propensity, and its omission is highly material to this appeal given the other grounds of appeal looked at cumulatively. The Appellant was entitled to have the fact of his good character considered by the magistrate when he came to assess the evidence not only of the Appellant but also, and perhaps more importantly, the evidence of the prosecution witness.

13. Given the contradictions and inconsistencies in the evidence of the prosecution witnesses fully recognised by the learned magistrate evidence of the Appellant's good character, if presented to him, might have been sufficient to create a reasonable doubt in his mind. It was not presented to him and that is in my view fatal to this conviction. The prosecution simply cannot, in my view, discharge the onus placed upon it of showing that had the Appellant's good character been adduced, the result of the trial would have been the same. And upon this ground, I cannot but conclude that this conviction is unsafe.

14. Accordingly, I allow this appeal, set aside the conviction and quash the suspended sentence of imprisonment, the fine, the costs and the compensation.