HKSAR v. LI KA MING

HCMA 962/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 962 OF 1999

(ON APPEAL FROM TWCC 1753/1999)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of common assault. The facts as found by the learned magistrate are as follow. On 14 May 1999, i.e. one day prior to the alleged incident, the victim, PW1, was dismissed by the appellant. He was given a cheque for his terminal payment for which he signed a receipt and left. After leaving the office, PW1 discovered that he had been underpaid. On the following day, PW1 returned to the office to reason with the appellant. As the conversation between PW1 and the appellant became heated, the appellant's sister called for the police. The quarrel escalated with the appellant accusing PW1 of stirring trouble and with PW1 threatening to tell the appellant's clients about "this dirty thing". At this point, the appellant allegedly punched PW1 on the left side of his forehead. Then PW2, sergeant 17292, and his team of officers arrived. PW1 did not suffer any obvious brusising and did not seek medical treatment.

2. Mr So who also appeared for the appellant at the trial advanced two main grounds of appeal. Firstly, he submitted that the learned magistrate's treatment of PW1's evidence of the receipt of his terminal payment in his statement of finding inadequate and unsatisfactory. Secondly, he submitted that learned magistrate failed to properly consider certain inconsistencies within PW1's evidence and between PW1's and PW2's evidence.

3. PW1 has been searchingly cross examined. He said in chief that he signed and accepted the receipt from the account clerk, Fione, because he saw nothing wrong with it. Impliedly, he had read the receipt and agreed with its calculation. Then under cross examination, he said he signed under situation that he knew nothing about its contents. Then he said he never checked the amount. Obviously, he was changing in his evidence. All these are inconsistent with what he said in his witness statement. In the statement, he said that he did not pay attention to the figure, not that he signed under situation that he knew nothing about the contents and certainly not that he saw nothing wrong with it.

4. The learned magistrate was aware of the inconsistencies. He did not deal with that in his statement of finding, but he certainly had addressed his mind to the inconsistencies because he said the following when delivering his oral verdict:

"PW1 was cross-examined very ably and carefully and at some length by counsel for the defence, Mr So. He was questioned about the incident on 14 May, the day he was fired, and PW1 did concede that he had signed a receipt - Exhibit D3 - and that the amount on the receipt was the same as the amount on the cheque that he was given, and that so far as he, PW1, was concerned, that amount was incorrect.

However, as to the main thrust of his evidence and the details with regard especially to the events of 15 May, his evidence was unshaken."

5. From what the learned magistrate said in his oral verdict, he has certainly addressed his mind to the inconsistencies, though he did not attempt to resolve them. The learned magistrate must have weighed them against the totality of the evidence before reaching his verdict. However, this is an important collateral issue as it explains why PW1 returned to the office on 15 May. This is an issue which he ought to have a clear and cogent recollection of. By themselves, the inconsistencies within PW1's own evidence may not be fatal to the conviction. But they certainly deserves some consideration.

6. In his second ground of appeal, Mr So referred to five inconsistencies. Only the first one deserves serious consideration. There is no substance in the complaint in respect of the last four inconsistencies. The learned magistrate was clearly aware of those inconsistencies and must have resolved them in his mind.

7. The first inconsistency relates to what PW1 volunteered at the end of his evidence in chief. He told the court that two days after the incident, i.e. on 17 May, the appellant telephoned him, offered to settle the matter by paying him $2,500 and told him not to stir up any trouble. Then he telephoned Tsuen Wan Police Station but he could not find the sergeant. On 25 May, he spoke to the sergeant over the phone and informed the sergeant about the appellant's offer. This conversation was unequivocally denied by the sergeant.

8. The learned magistrate was also aware of this inconsistency. He referred to it in his statement of finding and said:

" PW1 testified that at about 11 a.m. on Monday 17th May (2 days after the alleged assault), he received a telephone call from the appellant who offered him $2,500 'not to stir up trouble'. It was this sum that PW1 alleged he was owed and was the reason for his visit to the appellant's company premises on the morning of the 15th May 1999.

PW1 gave evidence that he telephoned Tsuen Wan Police Station a week after the 17th May i.e. 25th May and informed a female there of the call he allegedly received from the appellant on the 17th May 1999. PW1 added that he was told by this female that the sergeant was not on duty at that time.

However when cross examined about this call to Tsuen Wan Police Station PW1 in answer to questions agreed that he did talk to the Sergeant and answered a number of questions posed by counsel proceeded by or containing the words "the sergeant," e.g. "you spoke to the Sergeant over the phone?" and PW1 answered each of these questions.

PW2 testified that he was not on duty on the 25th May, and that he never received any call from PW1 with regard to him - PW1 - being contacted by the appellant, though PW2 gave evidence to the effect that it was possible for PW1 to have contacted someone at the Police Station and he - PW2 - not to known about it.

There arose out of the evidence with regard to the alleged telephone call to Tsuen Wan Police Station some discrepancy in the testimony of PW1; and as between PW1 and PW2.

I did not consider these discrepancies to be of material significance in themselves, nor were they central to the testimony of PW1 with regard to the events surrounding the alleged assault, though I did consider the issue with regard to the overall credibility of both PW1 and PW2.

PW1 was a verbose witness who gave evidence in court over a number of hours. He impressed me as an honest and reliable witness. He was cross examined quite properly and carefully at some length and his evidence remained unshaken."

9. However, regrettably, it appears from the above passages that the learned magistrate has failed to properly understand PW1's evidence. It is clear from the transcript that in fact PW1 telephoned Tsuen Wan Police Station immediately or shortly after he received the alleged telephone call from the defendant on 17 May. He was told by a female staff that the sergeant was not on duty. He talked with the staff about court appearance and documentation. He then confirmed that he talked with the sergeant a week from 17 May (Page 45 D-D and R-S). The sergeant also confirmed that he was on duty on 25 May (Page 69 S).

10. Thus the learned magistrate was wrong when he said, firstly, that the sergeant was not on duty on 25 May and, secondly, that PW1 informed the female staff about the telephone call from the appellant. The learned magistrate felt puzzled why PW1 answered questions posed by counsel proceeded by or containing the words "the sergeant" when he thought PW1 only spoke to the female staff. This shows that the learned magistrate has quite misunderstood the evidence.

11. In relation to the inconsistency, the learned magistrate said he did not consider these discrepancies to be of material significance. He probably thought that as the sergeant was on leave on 25 May, PW1 might have spoken to another officer thinking that he was the sergeant but that officer did not report back to the sergeant. If that was how the learned magistrate resolved the inconsistency, he did so on the wrong footing in view of his misapprehension of the evidence. The learned magistrate then went on to hold that he was impressed by the manner in which PW1 gave his evidence and found him to be an honest and reliable witness.

12. With respect to the learned magistrate, this is a case where the prosecution case stands or falls on the credibility of PW1, though the defendant himself elected not to give evidence. PW1's evidence about this important collateral matter is contradicted by the sergeant. This inconsistency should have been properly resolved by the learned magistrate and in such a manner as to show why the credibility of PW1 is not impeached by the inconsistency. In The Queen v. Chong Kam-Sau, Magistracy Appeal No. 859 of 1985, O'Connor J held:

"Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no single formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

13. The sergeant is an experienced officer. He said if he had been told about interference of a potential witness he would have conducted further investigation but he could not recall having been informed by PW1 that the defendant had approached PW1 trying to settle the matter. In the circumstances, there is no reason why the sergeant would have forgotten about the telephone conversation if the conversation had taken place.

14. On the other hand, PW1's evidence about this conversation under cross examination is extremely evasive. These are his answers to counsel's questions:

"Q. You told him the defendant tried to buy you out, to pay you 2,500, ask you to settle the matter, right?

A. That's right.

Q. You also told the sergeant the defendant tried to induce you, to offer you money, ask you to settle the matter.

A. I believe, agree.

Q. Yes. And what the sergeant's instruction to -- what is the sergeant's reply to your complaint?

A. It's not a complaint.

Q. Yes. What did sergeant say to you then, after hearing what you had told him?

A. The sergeant said to me, "We will give you a letter to you at a later date."

Q. Yes. And that's all the reply he make to you, "Give you a letter soon"?

A. No.

Q. What else?

A. I said to him that the defendant had phoned me but I did not -- but I ignored him.

Q. Yes, and then?

A. The sergeant said to me that if a letter was to be sent to you by court or by the police station, they would contact me. I therefore gave him my contact portable phone number.

Q. But that's all his reply?

A. That's it.

Q. You sure? Huh?

A. I'm sure.

Q. So, he did not tell you what you should do about the telephone conversation you and the defendant had on 17 May.

A. The sergeant did not say this to me.

Q. Yes. I put it to you the 17 May conversation you had the defendant is a lie. Do you agree?

A. Disagree."

15. In my view, it is extremely unlikely that when the sergeant was told, if in fact he had been told, about interference of a potential witness, he would have responded so irrelevantly and casually in the way as described by PW1, i.e. by giving him a letter. In my view, the likelihood is that PW1 was caught in cross examination. If he had so spoken to the sergeant, it is unlikely that his message would have been lost or misunderstood by the sergeant. The sergeant would then have given him further instructions or taken follow up action or dismissed the complaint if he thought it groundless. Of course, if he had not so spoken to the sergeant, he was caught not knowing what answers he could make up for the sergeant. Had the learned magistrate not misunderstood PW1's evidence and thought that the sergeant was not on duty on 25 May, he would have properly directed his mind and come to the conclusion that PW1 was exaggerating and making up evidence about the telephone conversation to boost the defendant's guilt by showing his intention to settle the matter.

16. Mr So also criticised the learned magistrate for not making any reference in his statement of finding of the in-court outburst by PW1 accusing PW2 of lying when PW2 denied having been informed by PW1 about the appellant's telephone call. Mr So said this was a serious material irregularity which was not recorded or noted by the learned magistrate or dealt with properly in his statement of finding. With respect to Mr So, his complaint is frivolous. The record of proceedings were recorded by digital recording and then transcribed. PW1's outburst could not be picked up by the recording system probably because PW1 was not speaking to or near a microphone. The learned magistrate could not be blamed for not recording the outburst. The recording did pick up what the learned magistrate said to PW1 in response. In my view, the way the learned magistrate handled the situation was unreproachable, fair and proper. The best the learned magistrate could do was to ignore the outburst rather than to use it as adding weight to PW1's evidence. This is what the magistrate has done and there is no need for him to specifically dealt with it in the statement of finding.

17. However, the learned magistrate's misunderstanding of PW1's evidence about the telephone conversation, his failure to resolve the inconsistency between PW1's and the sergeant's evidence and, to a minor extent, the inconsistency within PW1's evidence about the receipt must render the conviction unsafe and unsatisfactory. Accordingly I allow the appeal and set aside the conviction and sentence.