HKSAR v. WONG FUNG WAH

HCMA364/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.364 OF 2003

(ON APPEAL FROM TMCC NO.3842 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction only, the appellant's appeal against sentence having being abandoned and dismissed

2. The appellant was convicted of two offences of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap.212 arising out of an attack on each victim during the course of the same incident. The facts of the offences as found by the magistrate were that the victim of the 1st charged offence, PW1 had been at the Aristo Bar in Yuen Long in the early hours of the morning on the charged date and had gone up a table occupied by a person Chan and the appellant. He wished to talk to Chan.

3. When he had done so the appellant had asked who he was. The appellant was apparently annoyed with PW1 speaking to Chan while the appellant had been doing so.

4. The appellant slammed his fist onto the table and then uttered the words "Hit him". Following that a group of 10 odd males on an adjacent table then rushed up and hit PW1. The attack included PW1 being hit on the head with glass bottles. He sustained injuries which later required 10 stitches to his forehead and the back of his head.

5. PW2 the victim of the 2nd charged offence was nearby at the time and had seen the appellant bang his fist on the table and had heard him utter the words "Hit him". He saw 10 odd persons from a table next to the one where the appellant was sitting get up and attack PW1, some with glass bottles. He then went to assist PW1 by grabbing his arm and dragging him away. He himself was then attacked and hit with glass bottles and fists. He suffered multiple lacerations and bruises to his scalp.

6. The appellant appeals his conviction on each charge on the following grounds that :

(1) The magistrate rejected the appellant's evidence, and therefore his case, upon an incorrect basis.

(2) The magistrate's approach to the prosecutions identification evidence was wrong in law.

7. So far as the first ground of appeal is concerned the appellant complains that the magistrate placed too much reliance on the appellant's demeanour.

8. The basis for this complaint as argued by Mr Burkett for the appellant is that the magistrate had particularly criticized the appellant's co-defendants (D2's) demeanour on an unrealistic basis and so, by extrapolation, may have regarded the appellant's demeanour as unsatisfactory for an equally flawed reason.

9. In his Statement of Findings the magistrate said :

"... Both defendants' demeanour in the witness box had given the court an impression that they were not honest and reliable witnesses. The court had observed D2's eyes had moved around in court while he was giving evidence. He had given an impression to the court that he was not a truthful witness."

10. It is true that demeanour is a notoriously uncertain guide to the truth and is a point of last resort : R. v. Ng Wing Ming (1994) 2 HKC 464. But that does not mean it cannot be taken into account at all. On occasions, it must be true to say, demeanour can be of some assistance to an assessment of a witness' credibility. It is important not to over-emphasise it, or to rely upon it disproportionately in deciding what weight to place upon a witness' evidence.

11. The question in the present case is whether the magistrate placed too much reliance on the appellant's demeanour in rejecting his evidence and accepting that of the two prosecution witnesses.

12. I do not think he did. Firstly it should be borne in mind the criticism of the observations made by the magistrate concerning the appellant's co-defendant's demeanour were of observations unique to that defendant. I do not think the magistrate's comments in that regard, which in my view were merely made to illustrate why he found that defendant's demeanour to be deficient, necessarily means the magistrate's expressed view of this present appellant's demeanour was flawed. The only comment made by the magistrate so far as the present appellant's demeanour was concerned was that it gave the court an impression that he was not an honest and reliable witness. The magistrate did not elaborate as to why he thought this regarding the appellant. I do not think it was necessary for him to do so. Very often it would be difficult to describe what it was about a witness' conduct or appearance which made the court wary of his credibility. Descriptions do not always convey accurately the complex impression a witness may make upon the trier of fact. That indeed may have been what brought about Mr Burkett's concern about the magistrate's description of D2's demeanour.

13. In any event, it is important to note that in dealing with the present appellant's evidence the magistrate had not based his decision to reject that evidence merely upon the demeanour of the appellant. That was in fact, properly, the last thing he considered.

14. The magistrate had initially pointed out that the appellant when answering questions in cross-examination had simply and consistently denied in his answers any suggestion, not only that he was there at the scene at the time of the offences, but also that PW1 and PW2 were attacked. The magistrate thought it odd that he was able to deny the second proposition if he were not present. He thought it odd also that the appellant, who regularly went to the particular bar where the attack occurred was able to say he was not there at some time that night, although he was unable to remember where he was.

15. Mr Burkett in his argument before me criticised each of these aspects of the magistrate's reasoning as being illogical. I do not think that criticism is justified. It seems to me the magistrate was simply saying that the appellant's evidence was wholly devoted to distancing himself from the scene of the offences and was not apparently directed to telling the truth.

16. Each of the matters mentioned by the magistrate may not be of great importance but when taken together and with the whole of the evidence in the case they are capable of forming part of the reasoning of the magistrate in arriving at his decision to reject the evidence of the appellant.

17. One final aspect of the magistrate's approach to an assessment of the appellant's and his co-defendant's evidence should also be mentioned. The court is entitled to and should look at the whole of the evidence in the case before deciding whether to accept or reject a defendant's evidence.

18. In the present case the magistrate did just that. He carefully considered the evidence of PW1 and PW2, the two victims, and concluded that their evidence was reliable and truthful. In dealing with their evidence he dealt with minor inconsistencies in their evidence and realistically concluded those inconsistencies could be explained by the confusion of the moment. In accepting their evidence as reliable he further concluded that the evidence of PW1 and PW2 could support each other. It was within that context that the court considered what it called the "illogicalities" in the appellant's evidence and then finally his demeanour. I do not think that the magistrate, so far as the appellant is concerned, could be said to have elevated the demeanour of the appellant out of proportion in deciding to reject his evidence.

19. The first ground of appeal cannot succeed.

20. So far as the second ground of appeal is concerned Mr Burkett argues that the magistrate misconceived the issue of identification. Both PW1 and PW2 had identified the appellant at subsequent identification parades. The appellant's case was that he was not at the scene and, if there was a dispute as alleged by PW1 and PW2, they misidentified him as the offender in the subsequent identification parades they attended.

21. It was common ground at trial that the prosecution witnesses, i.e. the two victims, had met or seen the appellant on previous occasions at the Aristo Bar.

22. Mr Burkett as I understand him argued that the magistrate proceeded wrongly on the basis that the case involved simply a resolution of the "fleeting glimpse" problem as characterised in R. v. Turnbull [1976] 63 Cr. App. R.132, and that rather the case was simply one of whether the appellant was at the scene of the offences. By proceeding in the way he did, says Mr Burkett, the magistrate placed too much emphasis on the Turnbull principles and not enough emphasis on the simple and fundamental question as to whether PW1 and PW2 may simply have mistakenly identified the appellant as the person who ordered the assault on PW1 because they had seen him at the bar on previous occasions.

23. I do not think the magistrate overlooked this at all. He directed himself upon the identification in these terms :

"This is a case involving identification evidence. The court has to warn itself of the special need for caution before relying on the correctness of the identification because it is quite possible for an honest witness to make a mistaken identification and notorious miscarriage of justice have occurred as a result. The court have to examine carefully the circumstance the identification was made including the duration, the distance, the lighting conditions, the observation impeded and the facial feature of the suspected. However, the relationship between both parties will also be taken into account. This is not a case of pure fleeting glance situation, but both defendants and prosecutions witnesses had known each other in the bar before the incident. They knew their names or nicknames."

That is a perfectly proper direction.

24. It is quite apparent from its terms that the magistrate was entirely aware that he was not dealing with an exclusively "fleeting glimpse" situation. He was aware that the witnesses PW1 and PW2 had met with or seen the appellant on previous occasions and that that was a fact to be taken into account.

25. He later concluded that :

"It is quite impossible that two witnesses who knew the defendants could mistakenly identify them at the same time."

26. In other words the magistrate was aware of the issue of possible mistake of the appellant's identify.

27. In my view the magistrate's approach to the identification evidence was quite proper in the circumstances of the case and in particular he was aware that there was an issue as to whether PW1 or PW2 may have mistakenly identified the appellant because he was already known to them or for some other reason.

28. In my judgment in no way could it be said, as complained of by the appellant, that in dealing with the evidence of identification and the issues arising from the "fleeting glimpse" principle of Turnbull's case, that the magistrate lost sight of the real issue as to whether the appellant was in fact at the scene at the time of the incident and committed the charged offences.

29. The appeal is dismissed.