HKSAR v. POON WING KIN

HCMA 131/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 131 OF 2008

(ON APPEAL FROM KCCC 7290/2007)

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J U D G M E N T

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1.  This Appellant was convicted after trial in the Magistracy, having been jointly charged with Assault Occasioning Actual Bodily Harm.  His two co-defendants were found guilty also. 

2.  The Appellant was represented at trial and on conviction was sentenced to a Community Service Order of 120 hours by the Presiding Magistrate, Mr Henry Mierczak.  The Appellant appealed against conviction only.

3.  The Appellant was D2 at trial.  His co-defendants were Ho Wing-yun (D1), and Chau Wing-cheong (D3).  Chau originally appealed against his conviction, but abandoned his appeal on 22 July 2008.

4.  The facts found by the Magistrate from the evidence showed that the charge resulted from a bar room altercation.

5.  PWs1, 2 and 3, with other friends, were having drinks at a bar at about 10:30 p.m.  PW1 was playing darts when an object hit him.  He ignored it and returned to his seat, but saw a man with others at another table, “staring” at him.  That man and his companions launched an attack during which PW1 was kicked in his abdomen by the male who had been staring.  Another man from that table (subsequently identified as D3, Chau) came forward and punched PW1 on the head with his fist.  Another man (subsequently identified as the Appellant) approached and hit PW1 on the head with his hand.  PW1’s spectacles fell off.  After that, PW1 received a number of punches but he was unable to fight back and could not see properly.  His friends, PW2 and PW3, attempted to mediate and they pulled PW1 to the stairs, away from the assailants.  Police were called. 

6.  PW1 identified Chau (D3), as a person who had hit him.  PW2, who had gone to assist PW1, said he could identify the Appellant as one of the assailants and said he had seen him on a number of occasions at the bar before.  He said all three men had continually punched and kicked PW1 in an assault that lasted several minutes.

7.  PW3 gave evidence that he had seen 2-3 persons hitting PW1.  He was not sure if he had seen the attackers before.  He was present when police arrested two of the attackers whom he had been able to identify from their clothes, as well as remembering their faces.  He was unable to recognise them again in Court, but said he was sure the two men he had pointed out to the police on that night, took part in the attack.  One of those men was this Appellant.

8.  PW1 gave evidence of the injuries he had received.  His medical report was produced.  It showed that at the time of the examination his condition was satisfactory; he was fully conscious during the examination.  He had abrasion wounds and bruises over his forehead, as well as on his right upper lip.  He felt tenderness over the back of his neck.  X-rays of the skull and cervical spine did not show any fracture.

9.  Amended Perfected Grounds of Appeal were as follows:

(1)  The Magistrate’s finding in respect of PW2’s identification of the Appellant, that – ‘There was no problem with identification, rather it was recognition!’ – was wrong in law, as it showed he had failed to go on to consider whether or not PW2 was mistaken.

(2)  The conviction was unsafe and unsatisfactory as the Magistrate failed to resolve, or demonstrate that he had considered or resolved, the evidence that was favourable to the Appellant, or, alternatively, had not dealt with his defence that he was only mediating.

(3)  In a further alternative to ground 2, it was alleged that as the Magistrate had used over-generalized statements in his findings, he had failed to show how he had dealt with the specific issues in the case.

(4)  In all the circumstances the conviction was unsafe and unsatisfactory.

Ground 1

10.  In his oral reasons the Magistrate found that PW2’s identification was that, ‘He was sure.  There was no problem with that identification at all, and it was D2 assaulting his friend, PW1.’

11.  In his Statement of Findings [AB 15] the Magistrate noted PW2’s identification of the Appellant by stating ‘There was no problem with identification, rather it was recognition!’  Mr Boyton, who appeared for the Appellant, argued that the exclamation mark was used to emphasize the correctness of the identification.  Mr Boyton submitted that this statement could not be a correct application of the law, because even in recognition cases there was room for mistake, and the Magistrate seemed to have ignored that matter and concentrated solely on credibility. 

12.  The Magistrate summarized the salient points of the evidence.  The attack had been initiated by a man who was not before the court, who had kicked PW1.  PW1 said he could not see that attacker’s face.  After that an assault on PW1 had ensued, with the assistance of the Appellant and D3 who had been sitting with the initiator at a table.

13.  PW1 was not certain whether there had been an earlier dispute in the toilet which led to the attack in the bar.  He denied the suggestion that he, with PW2 and PW3, had been the aggressors.

14.  PW1 told police he could only recognise the man who kicked him and the man whom he identified as D3.  He was able to identify D3 to the police some 3 weeks later, again in the bar.  In his Statement of Findings (AB 15), the Magistrate said of the identification of D3 by PW1, “He is not mistaken and I accept that”.

15.  PW2 had seen three persons surrounding PW1 and assaulting him for several minutes.  He went to assist PW1 and later identified the Appellant to the police as having punched and kicked PW1.

16.  He had seen the Appellant at the bar about 10 times before that night; that was why he recognized him.  He said that the Appellant had worn a checked shirt on that night.

17.  PW4 was the police officer who arrested the Appellant.  After PW3 identified the Appellant, he had told him that he was mediating in the dispute. 

18.  The Magistrate considered the matters which had arisen from the evidence.  He gave himself various directions;

“In reaching my decision I had regard to all of the evidence in the recorded proceedings and have set out here only sufficient to outline the nature of it.”

“I took into account throughout the clear record of the Appellant and everything that flows from that.  I also gave myself all the necessary warnings with respect to identification in cases of this nature.”

19.  He found PWs 1, 2 and 3 honest and believable witnesses and accepted their evidence.  He found that the attack was unprovoked and was sure that the Appellant’s identification was reliable.  He warned himself of the possibility that PW2 and PW3 may have had reason to support PW1, a friend, with untruthful evidence.

The Appellant’s injuries

20.  The Appellant produced a medical certificate at trial, setting out the injuries that he had received.  They were lower lip and right back abrasions, redness on both knees, right hand pain, with no external wounds nor any fracture.

21.  The Magistrate was not surprised by the Applicant’s injuries.  PW1, when attacked, had tried to defend himself with the help of PW 2; they also tried to restrain the attackers.  The Magistrate found that during such activity, injuries could be expected.  He did not find the injuries supported the Appellant’s claim to be a mediator, or the allegation that PWs 1, 2 and 3 had been the aggressors.

22.  Although PW1 had been unable to recall some matters, the Magistrate found that explicable because he had been assaulted and injured.  The Magistrate had noted the discrepancies in PW1’s evidence which were complained of by the Applicant, but found them minor.

23.  The Magistrate was sure that the Applicant in concert with two other men, had assaulted PW1 as he had stated.

24.  The defence advanced was that the Appellant was mediating in the dispute and that he had no intention to assault PW1.  Counsel for the Applicant took issue with the Magistrate’s stating there was no problem with identification.  He relied on Beckford and Others v Reginam [1993] 97 Cr. App. Rep. 409 at p. 415:

“The need to give the general warning even in recognition cases where the main challenge is to the truthfulness of the witness should be obvious.  The first question for the jury is whether the witness is honest.  If the answer to that question is yes, the next question is the same as that which must be asked concerning every honest witness who purports to make an identification, namely, is he right or could he be mistaken?

Of course no rule is absolutely universal.  If, for example, the witness’s identification evidence is that the accused was his workmate whom he has known for 20 years and that he was conversing with him for half an hour face to face in the same room and the witness is sane and sober, then, if credibility is the issue, it will be the only issue.  But cases like what will constitute a very rare exception to a strong general rule.”

25.  The Applicant, through his counsel, complained of the Magistrate that the identification was flawed; that he had not considered honest but mistaken recognition; that he failed to resolve evidential discrepancies properly, or at all and the final complaint was that the Magistrate relied on set formulae to give himself directions.

26.  I have considered the matters raised but am not satisfied that any of these grounds have been established.

27.  The Magistrate was dealing with a minor altercation, which, on the evidence, was unprovoked by PW1, and/or his 2 companions.  Although there was a suggestion that there had been an earlier confrontation in the toilet, there was no cogent evidence to establish that.

28.  Identification, if in issue, always needs to be assessed carefully, especially when chaotic events, involving a number of people erupt in a confined space and when, as is usual, not all those present and/or participating saw everything that happened.  Unsurprisingly that can cause discrepancies in the evidence, which cannot always be resolved satisfactorily.  What the Magistrate must do is decide whether, or what, discrepancies exist; how seriously they impinge on the issues in the case; whether they need to be resolved and, if so and they cannot be resolved, whether they are central to the verdict.

29.  The Magistrate was aware that identification was all-important.  The victim could identify one of the men who attacked him, a man he had seen before at the bar; D3.  He did not identify this Applicant at the scene and, correctly, was not permitted to identify him in court.  During his evidence he referred variously to ‘a fat man in a grey upper garment’, ‘a man in a pink upper garment’ and, after his spectacles fell off, he saw a ‘man in a checked shirt’ – colour or colours unspecified.  He identified D3 as the man in the grey upper garment.

30.  PW2 later identified the Appellant telling police he had been wearing a grey checked shirt.  No challenge was made to this in cross-examination of PW2 at trial, but Mr Boyton contended that this evidence was incorrect – the Appellant’s shirt was plain grey and that this was a major discrepancy which affected the identification and which the Magistrate had not resolved.

31.  PW2 identified this Appellant as a man he had seen, in the bar, about 10 times before.  The Magistrate, not surprisingly, treated the identification as a recognition case.  Mr Boyton argued that the use of an exclamation mark by the Magistrate when he recorded this recognition in his Statement of Findings, was a signal that he had failed to warn himself of the risk that PW2 could be mistaken in recognising the Appellant.  The exclamation mark is unnecessary, but cannot be given any more importance than that.

32.  PW2 had tried to assist the victim and so had seen the assailants at close quarters.  He was sure that they all took part in hitting him, but of the 3 men he identified only this Appellant.  He was adamant that the Appellant was not endeavouring to mediate.  While he might have been mistaken about the Appellant’s shirt being checked, that error, if it was an error, did not detract from PW2’s having identified the Appellant by his facial features.  PW2 could be confident about his identification because he had seen the Appellant on many occasions before that night.  The Magistrate found him a truthful and reliable witness.

33.  PW3 identified 2 men including the Applicant, as having assaulted PW1.  He was unsure whether he had seen any of the men before that night and he had identified 2 men to the police, by recalling their faces and their clothing.  He denied that the attackers were trying to separate PW1.  The Magistrate put little weight on his evidence.

34.  Although the scene was described as crowded and chaotic, the witnesses were not viewing events from great distances.  PW1 (before he lost his spectacles), PW2 and PW3 were close to the assailants.  The lighting was good enough to play darts by.  The witnesses were not strangers to the bar – and each of PW1 and PW2 recognised one of the assailants from previous encounters in that bar.

35.  Given those factors, the Magistrate, a professional tribunal, knowing the importance of identification, can be assumed to have warned himself that an honest witness could be mistaken in recognizing someone quite well-known to him.  Having done so, he was entitled to rely on the identification.

36.  Mr Boyton contended that the directions, which the Magistrate included in his Statement of Findings, were “over-generalized”, which showed he had failed to deal with specific issues.

37.  The statements complained of included:

“(1)   AB 14,

‘In reaching my decision I had regard to all of the evidence in the recorded proceedings …’

(2)     AB 14,

‘I also gave myself all the necessary warnings with respect to identification in cases of this nature’.

Similarly expressed in his oral reasons at AB 30-D as,

‘Also, I gave myself all the necessary warnings with respect to identification in cases of this nature at the forefront of my mind’.

(3)     AB 16,

‘the two appellants and another were the aggressors throughout’.

(4)     AB 16,

‘But what I am sure of is that both appellants together with another had assaulted PW1 in the way he PW2-3 attested to.’”

38.  While the Statement of Findings might have benefited from a more particularized form of directions than those set out by the Magistrate, this is a criticism of form rather than substance.  This was not a complex case, nor had the Magistrate failed to recognise the issues. 

39.  Judges and judicial officers who sit alone may find the recitation of detailed directions to themselves irksome, particularly if they have many written judgments to prepare.

40.  However, they should bear in mind that an appeal court needs to know that directions relevant to an issue, or issues, in the case have been considered by the judge or judicial officer.  Constant use of a shorthand form of directions may lead an appeal court to have doubts that the requisite attention was given to the relevant issues.  Directions should not be reduced to an incantation.

41.  The main issue was identification and the Magistrate dealt with that matter fully.  Whether the Appellant was trying to mediate and separate those involved in the fracas, as he claimed to the police, was a matter of credibility; the Magistrate accepted the prosecution evidence on that point as he was entitled to do.  The Appellant elected not to give evidence or call witnesses.

42.  The grounds of appeal have not been made out so as to convince me that this conviction is unsafe.

43.  Accordingly I dismiss the appeal.