HKSAR v. LAM WAI MOU

HCMA 862/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 862 OF 2011

(ON APPEAL FROM TMCC 3427 OF 2011)

____________

_______________

J U D G M E N T

_______________

1.  This Appellant is a man in his early 60s. He stood trial in the Magistrates’ Court on two charges. Charge 1 was of common assault. Charge 2 was of criminal intimidation. The particulars of charge 1 are that on 4 September 2011 at the carpark entrance of Yee Fung Garden in Yuen Long the Appellant assaulted Madam Yun Yuet-mui. The particulars of charge 2 are on that date and at that place he threatened Mr To Wah-sum with injury to his person, with intent to alarm him.

2.  Madam Yun, who gave evidence as PW1, was a security guard at that carpark.  The Appellant was her supervisor.  Mr To, who gave evidence as PW2, was a member of the committee of the incorporated owners of that building.

3.  The evidence of Madam Yun and Mr To, which the Magistrate accepted, was to the following effect.  The Appellant, apparently angry at Madam Yun for telling Mr To that she had tried to contact him over a car in the carpark with its engine on but had failed to find him, pulled the chair she was sitting on so that she fell to the floor, slapped her face and raised a stool as if to strike her with it.  When Mr To, hearing Madam Yun’s shout, came up and asked the Appellant why he had hit her, the Appellant pointed at him and said: “I recognise you.  I know where you live.  I will set fire to your home.  You will not live well”.

4.  The Appellant’s evidence, which the Magistrate rejected, was a denial of the evidence of Madam Yun and Mr To and involved his allegations of Mr To’s accusing him of shirking his duties and of both Madam Yun and Mr To fabricating a case against him.

5.  Mr To had a conviction for unlawful gambling.  Even taking that into account, the Magistrate found him credible as the Magistrate also found Madam Yun.  Having considered the whole of the evidence on both sides, the Magistrate felt sure that there was no truth in the Appellant’s evidence and that he was guilty under both charges.  He convicted the Appellant on both charges.

6.  The Appellant now appeals against conviction.

7.  The Appellant sought to put in further evidence on appeal.  That evidence consists of an entry in an occurrence book.  The entry records an allegation made by the Appellant to the effect that at the guard post on 29 August 2011 Madam Yun had, when he stretched out his arm to get two books, screamed “Why do you get so close?  Do you want to molest me?” I admitted this evidence de bene esse.  Upon considering it with care, I do not regard it as material on which to disturb the Magistrate’s findings.

8.  Five perfected grounds of appeal against conviction have been filed.  Ground 1, which is in respect of both charges, complains that:

“The Learned Trial Magistrate erred in law in that he failed his duty to give adequate reasons for his verdict. It impaired a fair trial.

Particulars

(a) His worship failed to explain (1) why he disbelieved the Appellant, a man of good character, and (2) on what basis he found the Appellant’s testimony regarding PW1’s act of framing up, a fabrication; or

(b) If his worship did give his reasons for disbelieving the Appellant, those reasons are, with due respect, arbitrary and inadequate.”

I do not accept what this ground asserts. The Magistrate was entitled to come to the conclusions at which he arrived after seeing and hearing all the witnesses.  I do not think that it was incumbent on him in the circumstances to say more than he did.

9.  Ground 2, which is also in respect of both charges, complains that:

“The Learned Trial Magistrate erred in conducting substantial part of the examination-in-chief of PW1 and PW2 and thus descended into the arena. There is a real possibility that the Learned Trial Magistrate’s judgment might have been influenced by such conduct, resulting in that the Appellant appearing to and receiving an unfair trial.

Particulars

(a) By looking at the number and nature of the questions the Learned Trial Magistrate asked in the examination-in-chief of PW1 and PW2, his worship clearly assumed the role of a prosecutor and therefore entered into the arena. The appearance of impartiality was lost; and

(b) There is an example of his worship’s judgment being actually influenced by his conduct of assuming the role of a prosecutor: The Appellant testified that the record of his complaint against PW1 (for trying to frame him up a week before the incident) was kept by the management office and he was not allowed to make a copy of it (AB 76J-K).  If his worship was not satisfied with such explanation, his worship could have raised his query immediately and pursuant to s. 22 of the Magistrates Ordinance, Cap. 227, ordered the production of such record. This his worship did not do.  As a judge of facts as well as law, instead of immediately finding out where the truth lies, his worship saved the issue to his verdict and just ‘conveniently’ found the Appellant a liar (AB 81E-I).  As such, the Appellant was deprived of a chance to reply to his worship’s query.  The relevant written record is now available and the Appellant will apply to adduce additional evidence in his appeal.”

I do not accept any of that.  All that the Magistrate did was to clarify the evidence.  The manner in which he did so cannot fairly be said to have been unfair or other than neutral.

10.  Ground 3, which is in respect of the common assault charge alone, complains that:

“The Learned Trial Magistrate erred in law in that he added his own effort to resolve, relying upon his speculation instead of evidence, a material discrepancy in prosecution case. The appearance of impartiality was undermined.

Particulars

(a) The evidence of PW1 was that after the Appellant slapped on her face, the Appellant then took a round stool trying to hit her. PW1 then raised her hand trying to ward off the Appellant. PW1 never mentioned that the Appellant put down the stool. She said, ‘maybe somebody pulled him away or just something happened’ (AB 49M).

(b) On the other hand, PW2 did not mention the round stool and/or pulling the Appellant away in his evidence. Being the first person arriving at the post, PW2 saw the Appellant just standing upright but did not see him holding anything in hand (AB 66A-E).

(c) His worship however gave the benefit of doubt to the Prosecution and said, ‘the defendant put down the stool when he realized that there were onlookers approaching so that by the time PW2 reached the post, the stool was no longer in the defendant’s hands’. This is speculation not supported by evidence. It would have caused an informed bystander to think that the Appellant had been deprived of a fair trial as guaranteed under Article 87 of the Basic Law.

(d) As such material discrepancy was not satisfactorily resolved by the Prosecution, the benefit of a reasonable doubt should be given to the Appellant.”

I do not accept that the Magistrate speculated, resolved any doubt in favour of the prosecution or did anything that was impartial or had the appearance of impartiality.  There are often points of the kind referred to in this ground.  A tribunal of fact weighs them in the context of the circumstances as a whole.  That is what the Magistrate did.

11.  Ground 4, which is in respect of the criminal intimidation charge alone, complains that:

“The Learned Trial Magistrate erred in law in putting an onus on the Appellant to explain why PW2 had to frame him up.

Particulars

(a) Once the Appellant raised the defence of frame-up, it was the burden on Prosecution to rule out such possibility and the Appellant has no onus to explain why he had been framed up by PW2.

(b) A defendant could be framed up by others for all sorts of reasons and sometimes for no reason at all. A false story is very easy to fabricate but extremely difficult to refute.

(c) However, in his verdict, his worship said, ‘the defendant could put forward no reason other than PW2’s unfriendly attitude towards him earlier on in the evening at the management office.’  It gave the impression that the Appellant has to put forward more reasons in supporting that he had been framed up.”

I do not accept that the Magistrate reversed the burden of proof or gave the impression of doing so.  It is common for a tribunal of fact to consider points such as the Magistrate did in this case.

12.  Ground 5, which is also in respect of the criminal intimidation charge, complains that:

“The Learned Trial Magistrate failed to properly understand the Appellant’s evidence regarding PW2’s propensity to frame him up.

Particulars

(a) The Appellant testified that (1) PW2 scolded him in foul language and threw the radio angrily on his desk and (2) the Appellant then scolded PW2 back, warned PW2 that he might call the Police and (3) PW2 left the management office angrily.

(b) However, in his verdict, his worship said, ‘the defendant could put forward no reason other than PW2’s unfriendly attitude towards him earlier on in the evening at the management office.’ As such, his worship understated PW2’s propensity to frame up the Appellant by reducing a heated argument with mutual hatred into simply ‘PW2’s unfriendly attitude towards him (the Appellant)’.

(c) Whilst ‘PW2’s unfriendly attitude towards him (the Appellant)’ might not have motivated PW2 to frame up the Appellant, however, a heated argument with mutual hatred may do so.”

This ground proceeds on the assumption that the Appellant’s testimony is true.  The trial was about whether the Appellant’s testimony was or might be true.  The Magistrate felt sure that it was untrue.

13.  I see no basis on which to reverse the view of the facts taken by the Magistrate who saw and heard all the witnesses.  The appeal is dismissed.