THE QUEEN v. WONG KA CHING AND OTHERS

HeadNote

Assault occasioning actual bodily harm - What injuries necessary to constitute actual bodily harm - Specific intent to cause particular kind of harm - Subjective or objective test - Out of court discussion of evidence between witnesses - The Queen v. Wong Wai Wai & Lau Wai Hang, Magistracy Appeal No. 1361 of 1989 (unreported) explained

Sentence - vicious, deliberate and cowardly attack of revenge on a police constable who had arrested one of appellants before - Sentences to Detention Centre and 6 months imprisonment upheld

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1124 OF 1990

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JUDGMENT

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1. The three appellants were jointly charged, tried and convicted before a magistrate of a charge of assault occasioning actual bodily harm contrary to section 39 of the offences Against the Person Ordinance, Cap. 212. The 1st and 3rd appellants were sentenced to detention in the Detention Centre and the 2nd appellant to 6 months imprisonment. They all appeal against both conviction and sentence.

2. The victim of the assault, a serving police constable, gave evidence that he was off duty on 26 January, 1990 and at about 8:15 p.m. he was walking to the flower market in Yuen Long with his girlfriend, Wong Ka-yan, a trainee in the Correctional Services Department. On reaching the Tung Wah Store in On Wing Road, five men approached and surrounded them. The 3rd appellant who was among the group pointed his finger at the victim and said "Fuck your mother, this is the police constable who arrested me on the last occasion." After that all five men assaulted the victim by hitting him with fists on the chest and kicking him on the arms and legs. The victim escaped with his girlfriend to the pavement on the opposite side of the street. There a man put his arm around the neck of the victim from behind causing the victim to fall to the ground. The man stepped on his head and following this all five men hit him together. At that very moment, a traffic sergeant arrived on a motor cycle and stopped the men from beating up the victim. The men tried to leave but the victim grabbed hold of the 2nd appellant while the sergeant arrested the 1st appellant. The other three men managed to run away.

3. This witness recalled that the 1st appellant punched him on the first occasion and the 2nd appellant was the one who jumped on his back and put his arm around the victim and kicked him. The 3rd appellant punched him on both occasions. He said that he sustained injury to his left fore-head, and was bleeding. His arms and legs also had injuries. Under cross-examination he said that he did not know whether the doctor found any marks round his neck or kick marks to his head. He agreed that he had slight superficial injuries.

4. No medical evidence was adduced at the trial.

5. The 3rd appellant was arrested some three and a half months later.

6. The evidence of the victim was corroborated by his girlfriend and the sergeant who confirmed that he saw four to five men using their fists to hit the victim and one of them was kicking the victim when he was lying on the ground. He arrested the 1st appellant whom he saw kicking the victim

7. All appellants gave evidence. They denied assaulting the victim and alleged that it was the victim who assaulted the 3rd appellant by arm-locking him and the 1st and 2nd appellants were merely trying to separate them to stop the victim from assaulting the 3rd appellant. Their evidence was rejected by the learned magistrate.

8. The sole ground of appeal argued by Mr. Matthews on behalf of the 3rd appellant on conviction was that:

"The conviction is unsafe and unsatisfactory in that the learned magistrate based his conviction upon evidence which was tainted by virtue of out of court discussions between PW1 and PW2 and therefore misdirected himself as to the weight to be placed on such evidence."

9. Mr. Matthews relied entirely on a decision of mine in The Queen v. Wony Wai Wing and Lau Wai Hang, Magistracy Appeal No. 1361 of 1989. In that case, a group of police officers got together in the morning before going to court in what was described as a pre-trial conference. They showed their notebooks to each other and discussed what they saw during the incident so as to make sure that they would say the same thing at the trial. Their object was to achieve consistency in their evidence and that was what the magistrate found. After reviewing the authorities, I held that the course taken by the officers was verging on coaching and went beyond the limits permitted by authorities. In that cases I allowed the appeal and quashed the conviction.

10. In case it might be misunderstood I would stress that Wong Wai Wing was decided on its own facts. It should not be taken as a proposition that witnesses are under no circumstance permitted to talk to other witnesses about their evidence or to look at their statements or statements of other witnesses before going to court. The result of each case must depend on the facts of that case.

11. In this case, Miss Wong Ka-yan admitted under cross-examination that the day before going to court to give evidence she talked about the case with her boyfriend, the victim. She did this because the incident took place so long ago and she wanted to refresh her memory. She said that she could still remember the events clearly but she just wanted to check that what she remembered was in accord with the memory of the victim. She said the discussion had not affected her testimony in any way and she had not altered or added anything she said in court as a result of her discussion with the victim.

12. The learned magistrate dealt with this aspect of the case specifically and found this to be a frank and truthful reply to questions put to her by counsel in cross-examination. The learned magistrate discounted any suggestion that her evidence had in any way been manufactured or tailored. So would I.

13. The facts of this case are vastly different from Wong Wai Wing. There is evidence of a most cogent nature from the victim which does not require corroboration. In addition the evidence of the sergeant clearly and undoubtedly supported the evidence of both the victim and Miss Wong. The evidence against the appellants, even without the evidence of Miss Wong, is, in my judgment, overwhelming.

14. This ground must fail.

15. Mr. McCoy argued two grounds on conviction on behalf of the 1st and 2nd appellants. The first one being:

 

"There was no evidence or sufficient evidence that actual bodily harm had been occasioned to the complainant."

16. He cited the decision in The Queen v. Choi Wai-kwong, Magistracy Appeal No. 914 of 1988. It was held by Barnes J. that :

17. Applying these tests to the injuries suffered and as described by the victim, I am satisfied that the injuries amount to actual bodily harm within the meaning of section 39 of the Offences Against the Persons Ordinance.

18. The second ground was:

  "The learned magistrate erred in law in his statement of findings as to the intent required to be intent required to be established for the offence of assault occasioning actual bodily harm."

19. Mr. McCoy referred to a recent decision of the English Court of Appeal in Regina v. Paremnter which was reported in the Times Newspaper on 30 July 1990. The judgment was delivered on 20 July. Towards the end of the judgment delivered by Lord Justice Mustill, the report concluded in saying:

"Until the whole matter had been reviewed by a higher court, their Lordships could do no better than to suggest to trial judges that subjective intent and subjective appreciation of the risk were the touchstones for which the jury should look, and that for so long as Mowatt remained the law the possibility of any physical harm was what the jury, when assessing that subjective element, should be invited to consider.

 

Their Lordships did not disguise their opinion that the law so stated would in marginal cases be as unworkable in practice as it was objectionable in theory. They could do nothing about that. Only the House of Lords could, now put the subject on an even keel."

20. If one looks at the evidence carefully, it is apparent that the intention of the appellants was manifest whether the subjective or objective test is to be applied. The attack was without any doubt intentional and it was equally clear that the appellants intended the kind of harm that had resulted. The victim was hit and kicked. He was chased and assaulted a second time within seconds. He was hit and kicked while he was lying on the ground. What other evidence it would require to prove intention.

21. I turn now to sentence. After the appellants were convicted on 2 July, the learned magistrate adjourned sentencing for 21 days for reports and according to the record at page 45, the hearing was adjourned 21 days from 2 July at 2:30 p.m. and this should be 23 July. Instead of sitting at 2:30 p.m. the learned magistrate sat at 9:30 a.m. on 23 July with none of the legal representatives or the appellants being present in court. The learned magistrate proceeded to sentence and sentenced the 1st and 3rd appellants to detention in the Detention Centre and the 2nd appellant to imprisonment for 6 months.

22. The legal representatives of the appellants duly arrived in the afternoon and were present in court at 2:30 p.m. Apparently realizing that he had made a mistake, the learned magistrate set aside the sentences he imposed earlier in the morning and heard mitigation. In the result, he confirmed his original sentences.

23. This course provoked Mr. McCoy to say that the original sentences were unlawful and a breach of natural justice and the subsequent sentences were a result of the earlier unlawful sentences.

24. These remarks were unwarranted as the learned magistrate had dealt with the situation as best as he Could.  I would agree with Mr. Matthews that it was perhaps an oversight on the part of the learned magistrate rather than any deliberate attempt to deprive the appellants of being legally represented during sentencing. This oversight is most unfortunate and I hope it will not happen in future.

25. I accept that what was meted out to the appellants are not light sentences. It was a vicious, deliberate and cowardly attack of revenge for something the victim had done in the course of carrying out his duties as a police officer. It is not the extent of the injuries but the method the injuries were inflicted I find so utterly distasteful and disgusted. Conduct of this kind is not to be tolerated in a civilized society and the sentence must clearly demonstrate to the public that it is not to be repeated. Too many crimes, and serious crimes too are being committed by young people nowadays and young age should not be regarded as good excuses. Precisely, it is people of the age group of the appellants that have to be deterred and to be taught to obey the law and have some respect for his fellow men. I have no sympathy for them at all. In my judgment, the sentences are perfectly justified in the circumstances of this case and I do not have the slightest hesitation to uphold them.

26. The appeal against both conviction and sentence by all three appellants must be dismissed.