HKSAR v. CHENG CHUN MING

HCMA11/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 11 OF 1999

(On appeal from SPC 6694 of 1998)

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J U D G M E N T

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1. On 23 November 1998, S Smout Esquire, magistrate, found the appellant and two co-defendants guilty after trial of the offence of assault occasioning actual bodily harm of a man called LEE Yuk-wai. The appellant appeals that conviction on perfected grounds of appeal as I shall come to.

2. The principal witness for the prosecution was the victim LEE. He said that he had need to seek out and talk to one of the defendants, designated D2, who with his staff was engaged in dealing with a problem with water pipes that LEE and his mother as householders were experiencing.

3. The two of them found D2 with three others, being the defendant designated D3, the appellant designated D1, and one more person engaged in a mah-jong game in premises whose iron grille at the entrance was partially closed. He attempted to attract their attention by tapping on the grille. The reaction was sudden and totally unexpected; the three rushed out. D2 began punching him about his upper body. D3 picked up an iron bar, brandished it, and struck LEE on one of his little fingers, which he later discovered was fractured. The appellant punched him on his back and then held him steady as D2 continued pummelling him. The assault lasted some 15 minutes and was still ongoing when the police arrived. He was hurt and had to be taken to hospital to have his injuries treated.

4. The next witness was one of the police party who arrived at the scene in response to a call. He said by the time they got there the parties were separate. He arrested the defendants. LEE was bare chested and he noticed abrasions and bruising on his upper body.

5. The remaining witness was LEE's elderly mother. She was present throughout, but curiously was not asked to give her account of events. She was called only for the purpose of cross-examination. It was put to her that prior to the arrival of the police she fell to the ground. She agreed she had. It was put to her that the only role the appellant played was to assist and comfort her following her fall. She replied, "He was not. He was holding my son."

6. The remaining evidence for the prosecution came from the admitted facts. It was agreed that all three following their arrest and caution gave exculpatory responses.

7. LEE was taken to hospital and about two hours after the incident was found to have multiple abrasions on his upper torso front and back, and on his right arm.

8. D2 alone gave evidence for the defence. He said the incident was initiated by LEE who approached and interrupted their mah-jong game with foul language and kicked the grille that separated him from them. D3 went out to remonstrate, whereupon LEE grabbed D3 around the chest and threw him to the ground. D3 went to pick up an iron bar. D2 came out and took the bar away from him before he had a chance to use it. The appellant then joined them, but his role was to look after LEE's mother. D3 and LEE continued to grapple until eventually they separated. Then it was, after they were separated, that the police arrived. The remaining evidence adduced was that the appellant and D3 had clear records and that D2 had one previous conviction for a minor matter committed 18 years prior.

9. The magistrate believed LEE and disbelieved D2 and found the charge proved beyond reasonable doubt. He found each defendant had played a part in the assault as attested by LEE and, further, that each had a common purpose to cause him harm, and was responsible for the others' actions. But before doing so he had to deal with a number of inconsistencies and difficulties.

10. The first was that in his evidence LEE said he was struck by the iron bar once on his little finger when it was wielded by D3 as he attempted to ward off the blow. The finger became swollen and was painful. He complained of that during the course of the medical examination conducted later that day and an X-ray revealed it was fractured. But in his witness statement taken on the same day he made no mention of having been struck by the iron bar and the resultant injury. Confronted by this he said that when he gave the statement he was in pain and not himself. Then he said the finger might not have become swollen and painful until later, and the injury was not discovered until a later examination. But then he corrected himself and said that it was spotted during the examination conducted on the day of the incident. But that was not reflected in the medical report that comprised the agreed facts and remained unresolved in the evidence.

11. The second was that LEE said the assault was ongoing even as the police arrived. The arresting officer said that by then whatever it was that became a confrontation was over. The third was the inherent unlikelihood as accepted by the magistrate that the incident had lasted anything like the 15 minutes that LEE had deposed to, given the nature and extent of the injuries he suffered.

12. The manner in which the magistrate dealt with these issues gave rise to the grounds of appeal.

13. The first complaint is that he found as a fact that LEE had discovered and reported the injury to his little finger some time after the medical examination of the day of the incident when there was no evidence at all of that and it was contrary to LEE's own account.

14. The second is that there was no finding of fact that D3 struck LEE with the iron bar in the face of much evidence that he might not have; that is, LEE's conceding that he left it out of his statement, the lack of medical evidence and D2's contrary account.

15. The third coupled with the fourth, is that he did not resolve the discrepancy between LEE's and the arresting officer's evidence as to whether or not the struggle was over when the police arrived, even though the police account was consistent with that of D2, whom he chose not to believe, and inconsistent with that of LEE, whom he did.

16. Before me Mr Beaumont for the appellant has expanded on these grounds. Miss FUNG, on the contrary, says that the magistrate did resolve all contentious issues that were significant. She says he came to his findings on the paramount one of credibility and found properly that the offence had been proved.

17. The magistrate had to deal with conflicts of fact after hearing from two witnesses intimately involved on opposing sides of the incident, which gave rise to the prosecution. He came to his findings of fact having heard the evidence, observed the witnesses, and considered such important aspects as their credibility. An appellate court denied the benefit of that experience firsthand will be slow to interfere with those conclusions. And whilst on paper the magistrate might not have spelt out all the issues he was required to deal with, it is not incumbent upon a trial court to set down all his thought processes before resolving disputes of fact. I have the same reluctance to interfere.

18. However, I am troubled by the fact that this case is about one man's word against another's, neither of whom was a disinterested observer. It behoved the magistrate to reach his findings after dealing with and disposing of all contentious matters. With respect to him, I do not think he fully or adequately did so.

19. For instance, I am concerned that his finding as to when LEE's injury to his finger was complained of and diagnosed was not consistent with his own evidence or any other adduced. And frankly, I should have thought that a broken bone would have been troublesome pretty much straight after it was suffered.

20. I am concerned that D2's evidence was rejected out of hand even though one part of it, namely, that the fracas was over when the police arrived, was matched by the arresting officer's account, and he surely had no reason to make that up.

21. I am concerned that the magistrate did not say why he chose to reject D2's evidence out of hand.

22. I am concerned that the extent of LEE's injuries described in the agreed facts was not inconsistent with a one-on-one struggle between LEE and D3 and no other person.

23. I am concerned that the short piece of evidence LEE's mother testified to, namely that the appellant held her son, was as consistent with his trying to separate the parties as to his being involved in an assault.

24. I am concerned that LEE's claim that the assault lasted 15 minutes, a time-frame which the magistrate stated must have been an exaggeration, might well have been a fabrication, to aggravate the seriousness of the attack he complained of.

25. And finally, I am concerned that the attack, so-called, appears to have been without a motive, whilst D2's version of events of a man with a grievance wanting to take it out on someone, does have a ring of truth about it.

26. Overall, the conclusion I come to is that there are unresolved issues that render the appellant's conviction unsafe and unsatisfactory.

27. Accordingly I allow the appeal and quash the conviction.