THE QUEEN v. MOK TSUN KEUNG

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL. NO. 801 OF 1987

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J U D G M E N T

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1. The Appellant was found guilty after trial in the Magistrates Court of the offence of assault occasioning actual bodily harm contrary to s. 39 of the Offences Against the Person Ordinance. The particulars alleged that he committed the offence on 27th June, 1987 at Lo Wu Railway Station.

2. The Complainant's evidence was that she was the proprietress of a tourist company and that the Appellant was employed by her until some time shortly before the incident, having left her employment "because of a monetary dispute". On 27th June 1987 at about 2.30 p.m. she was on the platform at Lo Wu Railway Station waiting for a train. When a train arrived, she stood aside to allow alighting passengers to clear the train before she herself made any attempt to board. Whilst waiting she felt someone tap her right shoulder. On looking around she saw the Appellant. He then slapped her face, grabbed the front of her T-shirt with one hand and punched her on her face and arms with the other. She pushed him but he then kicked her private parts. The pain of the kicking caused her to squat whereupon the Appellant held her hair and then kicked her backside. He said that he was aggrieved by the court decision by which she was ordered to pay him "$600 only". He eventually released his grip of her hair, warned her to keep clear of him in future if she wanted to avoid further assault and boarded the train. She remained on the platform for several minutes in pain after which she regained her feet and boarded the train "to look for the [Appellant] and report the matter to the police". She looked for him on the train but could not find him. She reported the matter at Central Police Station and was then referred to Queen Mary Hospital for medical treatment.

3. The medical evidence was that she was examined at 8 p.m. that day and was found to have bruising on her face, her left arm both her knees and in the region of her private parts. There was also "redness" on the front of her chest. The doctor described her injuries as "trivial to mild degree".

4. In cross-examination the Complainant said that she was at the station to "lead customers on a tourist Package" and that she had just come back from Shum Chun. It was put to her that she had seen the Appellant at 4.30 p.m. in Shum Chun but she replied :-

"Not so. It was at 2.30 at Lo Wu where he hit me."

It was then put to her that they were both in Shum Chun applying for visas and she replied :-

"Not so. I had already returned to Lo Wu and brought in customers".

5. The defence case put to her in cross-examination was that there had in fact been an altercation between them but that it had happened at the Visa Office in Shum Chun, not at 2.30 p.m. that day, but some hours later and that as a result of their altercation they were both asked to leave that office. She denied this. She also denied that she had made a telephone call from that Visa Office to her husband following the altercation and that the Appellant had immediately left the Visa Office after the altercation. Following those denials her evidence in cross-examination continued as follows:-

"Q.     He did not see you again that day?

A.    I only saw [Appellant] at Lo Wu that day where he hit me.

I did not telephone my husband from Shum Chun.

After the [Appellant] hit me at Lo Wu I phoned my husband from Lo Wu and told him about the incident. ..........

Q,     Why did you delay to report to the Police Station?

A. I had to phone my husband. I was in fear. I had to take transport to the company. Do not recall the time I got to the company. I had no watch."

6. The Complainant and the doctor were the only witnesses for the Prosecution.

7. The Appellant in his evidence said that he too was the proprietor of a tourist agency. He agreed that there had earlier been a money dispute between them as a result of which he left her employment and eventually obtained a judgment against her in the sum of $600. At 2.15 p.m. on 27th June, 1987 he met a Mr. Hung at a restaurant on Hong Kons Island. They had a snack together but the purpose of their meeting was for him to receive two visa applications from Mr. Hung, who was also in the tourist business. He parted company with Mr. Hung at about 2.30 p.m., passed through Lo Wu at some time after 4 p.m. and arrived at the Visa Office in Shum Chun at about 4.30 p.m. On seeing the Complainant there he pressed her for payment of the judgment. They had an argument which lead to blows and hair pulling. The office staff intervened and he and the Complainant were both warned that they would be detained if they created further trouble. The Complainant then telephoned the police and a Mr. Ng came to mediate. They were again told not to cause further trouble. The Complainant asked a Mr. Lo, a supervisor in the Visa Office, to write out a statement for her but he refused. That was the end of the incident. After obtaining the two visas for which he had applied he returned to Hong Kong through Lo Wu. When he left Shum Chun at 5.15 p.m. the Complainant was still in the Visa Office and he did not see her again that day.

8. In answer to a question put by the Court the Appellant agreed that he did cause the Complainant's injuries.

9. Mr. Hung gave evidence that he made an arrangement with the Appellant on Friday, 26th June, 1987 for the Appellant to collect two "passports" for him on Saturday, 27th June, 1987 "for processing". Although the arrangement was that they should meet at 1 p.m. on 27th June, 1987, the Appellant did not arrive at the restaurant until some time after 2 p.m. He handed the two passports to the Appellant at the restaurant and he, with several members of his staff and the Appellant, left the restaurant. If and his staff parted company with the Appellant at about 2.30 p.m. at the downstairs area of the restaurant on Hong Kong Island.

10. In cross-examination it was put to Mr. Hung that he was not sure of the exact time the Appellant came to the restaurant but he replied that he was sure that it was after 2 p.m. It was never suggested to him that he might have been mistaken about the date of the Saturday he handed the "passports" to the Appellant.

11. In his Statement of Findings the learned magistrate pinpointed the central issue when he said:-

"By virtue ... of the [Appellant's] admission that he had indeed assaulted the victim ... and that she had suffered the injuries set out in the doctor's report, the only real matter for consideration was whether or not the assault had taken place at Shum Chun in the Peoples' Republic of China or at Lo Wu Railway Station."

12. Relying solely on the demeanor of the Complainant and the Appellant as witnesses, the learned magistrate found that the Complainant had told the truth about the incident. He accepted her evidence that she had been assaulted on the platform at Lo Wu Railway Station at about 2.30 p.m. on 27th June, 1987. Although he rejected the Appellant's evidence where it was in conflict with the Complainant's he did accept Mr. Hung as "a man of truth". In relation to Mr. Hung, he went on to say this :-

"The Court .... accepted that the [Appellant] had in all probability had tea in the restaurant as stated by [Mr. Hung] but from the evidence of [Mr. Hung] and the disparity between the evidence of the [Appellant] and [Mr. Hung] at the actual restaurant and their respective movements, the Court considered the meeting for tea may well have taken place on a Saturday other than 27th June, 1987. The Court took note of the fact that the [Appellant] produced a receipt for 'visa services' carried out by the [Appellant] for [Mr. Hung] and purportedly for two Japanese gentlemen, so that [Appellant] would have the Court believe, but noted that the names on the receipts were very different from those of Japanese gentlemen. At no time did the [Appellant] ever explain this disparity".

13. He found that the offence was committed within his jurisdiction and convicted the Appellant.

14. Mr. MarcRae, for the Appellant, advanced several grounds of appeal but I found all but one to be without merit. The ground which I found to be of concern alleged that the conviction is unsafe because the learned magistrate misdirected himself about the onus of proof and failed to make a proper evaluation of the defense evidence.

15. If the only conflict in the evidence in this case was between the evidence of the Complainant and the Appellant then the learned magistrate could have relied solely on the impression created by the demeanor of those two witnesses to resolve that conflict. If the demeanor of the Complainant had been sufficient for the purpose of deciding that the Complainant was not only truthful but also certainly not mistaken as to the time of the assault then he would have been justified in concluding beyond a reasonable doubt that the incident occurred within his jurisdiction. But the evidence which he accepted from two truthful witnesses - the Complainant and Mr. Hung - showed that both could not be reliable regarding the time of their respective meetings with the Appellant that Saturday. In that situation, no court could find beyond reasonable doubt that the Complainant's evidence as to the time was reliable without at the same time being certain that Mr. Hung was mistaken about the date of his meeting with the Appellant. If the court could not say for sure that Mr. Hung's meeting with the Appellant took place on a Saturday other than 27th June, 1987 then it could not say for sure that the incident took place at the time alleged by the Complainant.

16. As Mr. MarcRae pointed out, if "the Court considered that the meeting may well have taken place on a Saturday other than the 27th", then the Court was unable to say for sure that the incident did take place at the time alleged by the Complainant.

17. This was not a matter capable of being resolved purely by the demeanour factor because that factor produced the finding that the witnesses whose evidence created the problem were truthful witnesses. The problem could be resolved only by looking beyond demeanour.

18. In looking beyond demeanour for the purpose of evaluating the evidence to see who was mistaken the learned magistrate would have found a serious crack in the credibility of the Complainant's version arising from a significant unexplained inconsistency within it. She was always adamant that the incident occurred at about 2.30 p.m. at Lo Wu and that, of course, was the Prosecution case. When it was put to her, as part of the Appellant's case, that she had telephoned her husband from the scene of the incident at Shum Chun, she made the reply earlier quoted to the effect that she had telephoned her husband from Lo Wu and told him about the incident. Her description of the attack in her evidence-in-chief, however, made no reference to any such phone call and that scenario had no prop, no time and no dialogue for such a scene. According to that script she boarded the train as soon as she regained her feet following the assault.

19. The first mention of any telephone call by the Complainant to her husband from the scene of the assault came when the Appellant's case was being put to her in cross-examination. How was the Appellant able to give instructions which prompted a leading question which received the answer showing that in her mind there was an association between the scene of the assault and a telephone call by her to her husband? How could the Appellant have given such instructions unless he knew that there was a concurrence between the two events?

20. The Complainant's evidence, no matter how impressive her demeanour may have been, leaves this question unanswered. The Appellant's evidence, on the other hand, plausibly explains how he could have acquired that knowledge. His evidence goes further : it also explains, in a way which the Complainant could not, how she would have had the opportunity to telephone her husband : and further still it explains why it was physically impossible for the Complainant to make any complaint at Central Police Station before the evening of that day!

21. Those are matters to which the learned magistrate would have addressed his mind had he not come to the conclusion based solely on demeanour that the Complainant was not only truthful but completely reliable.

22. In my view, if the learned magistrate had properly directed himself when evaluating the evidence of Mr. Hung, he would have concluded that, since he could not be sure that Mr. Hung was mistaken about the particular Saturday on which he had lunch with the Appellant, he could not be sure that the Complainant was reliable when she adamantly asserted that the assault took place at about 2.30 p.m. that day. With that degree of uncertainty about the Complainant's evidence regarding the time of the assault could he have decided with certainty that the assault did take place at Lo Wu? The answer is : only if he was sure that the Appellant's version that the assault took place at Shum Chun was false and the Complainant's version was true.

23. Since I cannot say that the learned magistrate would have come to the conclusion that he did if he had directed his mind in the way that I think he should have done, the conviction is unsafe and must be quashed.

24. The appeal is allowed. The conviction is quashed and all orders made founded on that conviction are set aside.