HKSAR v. NG KAM WAH, ROY

HCMA 32/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 32 OF 2010

(ON APPEAL FROM TWCC 3174/2009)

____________

_______________

J U D G M E N T

_______________

1.  On 17 December 2009, Ng Kam Wah, Roy (the appellant) was convicted of common assault, contrary to section 40 of the Offences Against the Person Ordinance, Cap. 212 by John Glass, Esquire, a magistrate sitting at Tsuen Wan Magistrates’ Court. A fine of $1,000 was imposed and, in addition, an order for the payment of $500 was made in favour of the alleged victim (PW1) of the assault.

2.  This is an appeal against conviction only.

3.  The facts, including those in dispute, were straightforward as they were all related to a brief incident on 14 September 2009 when the appellant was working as the assistant to So Tat Wing (PW1) on an LPG lorry.  They were both sitting in the front of the lorry, with PW1 driving, when their vehicle returned to its depot at about 5:40 p.m. after a Typhoon Signal No. 3 had been hoisted.  As PW1 drove to the parking area, the appellant opened the passenger door and PW1 asked: “Were you playing?”  This, allegedly, was followed by the appellant taking an umbrella from somewhere alongside him and, using this, he took a swing at PW1’s face.  PW1 raised his right hand to protect himself and he was struck on the hand by the umbrella.

4.  The appellant, on the other hand, denied any assault on PW1.  The case for the defence was that this was a false allegation made up by PW1 because of something in the past which had led to bad feeling between them.

5.  Plainly, as the learned Magistrate described it, this was a case which turned on credibility.  He found that the appellant had not been telling the truth and that, where there was a conflict between the defence and the prosecution’s versions of events, PW1 was to be believed.

6.  I have had the opportunity of reviewing the whole of the evidence called at trial as I have been provided with a full transcript in addition to the reasons which the Magistrate gave for convicting the appellant.

7.  There are four grounds of appeal, which Mr Matthew Ho has advanced on the appellant’s behalf.

8.  The first of the grounds amounted to a suggestion, canvassed at some length at trial, that the lorry cab provided insufficient space for an umbrella measuring about a metre in length to be swung in the manner described by PW1.  As to this, aside from the evidence given about the incident by PW1, there were photographs of the lorry and its cab and, while the umbrella which Kwok Chung Hon (DW2) saw the appellant carrying away with him after the incident was never recovered, it was plainly a matter which could be determined by the Magistrate on the material before him.

9.  Having said this, while it forms no part of the appeal grounds, it was unfortunate that the Magistrate refused to permit DW2, who was himself the driver of an LPG lorry, to answer a relatively simple question about whether, in his view, an umbrella could be swung inside the confines of the lorry cab.  The Magistrate seems to have regarded the opinion that the witness might have expressed as being inadmissible because he remarked: “What expertise has he [DW2] got to give an opinion on whether something could be swung inside the vehicle or not?”  The solicitor appearing on the appellant’s behalf replied, with sound reason: “Because he [DW2] was quite experienced, quite familiar with the environment and the question was not so complicated.”

10.  Although, in my opinion, the Magistrate might well have allowed the question to be asked, I consider it is abundantly clear, if someone had wanted to swing an umbrella measuring a metre in length at the head of the driver in the cab of that vehicle, that it would by no means have been impossible to do so.  The photographs, contrary to Mr Ho’s submission, support the view that this could happen in the confined space available.  The question remains, did it happen as PW1 has alleged?

11.  The second ground of appeal pointed to the fact that PW1, who was pulled away from the appellant by DW2 in case a fight developed between PW1 and the appellant, made no complaint to DW2 that he had been attacked in the cab of the lorry by the appellant and also that it had taken PW1 three days to visit the hospital.

12.  Mr Ho submitted that these were two indications that the appellant’s account had not been a true one.  He suggested also that the Magistrate had failed to take these two points into account when reaching his conclusions because the Magistrate did not refer to a reason for the delay in reporting the case to the police and merely said, in regard to PW1’s delay in going to hospital, that he could “accept his reasons for not going immediately to the public hospital after the incident.”

13.  Having examined the evidence, Mr Andrew Cheng, in his most helpful submission on the respondent’s behalf, pointed out that PW1 seemingly did give a reason for his delay in going to the police in that he stated that he did not want to “make it a big trouble”.  PW1 went on to say that eventually he did inform the police because: “… at that time, I was driving a heavy goods vehicle and it was very dangerous.” (Transcript p. 36)

14.  It is also apparent from the evidence of both PW1 and DW2 that PW1 left the driver’s seat of his lorry somewhat angry with the appellant although DW2 did not know the reason for this.

15.  As to the medical evidence, PW1 said that he consulted his private doctor during the morning of 16 September 2009, having rested at home the previous day after the incident.  Following his visit to his private doctor, much later in the day he attended the Princess Margaret Hospital where X-rays were done.  The delay was not a lengthy one and, as the injuries consisted of bruising, no doubt sufficient time had passed to allow the bruises to show.

16.  The matters covered by this ground of appeal were properly touched upon by the Magistrate when he said:

“I was impressed by PW1 as an honest and reliable witness and I accepted his evidence was the truth. I found that I could accept his reasons for not going immediately to the public hospital after the incident and I was satisfied that the injuries were not fabricated. …” (statement of findings p. 14, para 8)

17.  This leads to the third ground of appeal which was that the Magistrate had “accepted that the attack had caused more than one bruise on PW1’s right hand” when PW1 had described only one blow with the umbrella.  However, the Magistrate was well aware of this because, in his statement of findings, he said this:

“When considering PW1’s evidence I looked for material inconsistencies, but found none. I considered the bruises in the medical report and looked to see whether I could accept the blow could have caused such bruises. I noted in this regard that there was no evidence called, or questions asked, on this aspect. I found in conclusion after considering the possibility of fabrication that I was satisfied beyond reasonable doubt that the injuries were caused by the blow and I found that the manner of the landing of the umbrella on PW1’s hand had caused more than one bruise.” (statement of findings p. 14, para 6)

18.  In fact, PW1 had described how, when he was hit by the umbrella, a part of it was broken when it hit him.  The medical report referred to the doctor’s examination showing “bruises and erythema at the right hand dorsal surface” and, as the Magistrate correctly pointed out, there had been no cross-examination at all to suggest that a single blow could not have caused more than one bruise.

19.  There was one further, related, point which was raised under the fourth and final ground of the appeal.  This carried with it the suggestion that there was a possibility that PW1’s injuries may have been caused by something other than an assault in the lorry bearing in mind that the injuries were only seen by a doctor “3 days after the attack” as Mr Ho described it.

20.  Although Mr Ho is strictly speaking correct in saying that three days had elapsed between the incident and the time a doctor examined PW1, when based simply on the dates, this is a somewhat artificial way of approaching the matter.  The incident allegedly happened during the early evening of the 14 September.  PW1 said that he spent 15 September at home resting and had gone off to the doctor during the morning of 16 September 2009 which was later followed by his visit to the hospital.

21.  There was no misunderstanding of the evidence by the Magistrate and I can find, on review, no merit in the points raised under these grounds of appeal.

22.  I have in fact reviewed all the evidence given by PW1 and the appellant together with his two witnesses.  It seems to me that the Magistrate was, with the added advantage of having seen the witnesses, fully justified in reaching his conclusion that the appellant had been shown to have committed this offence.

23.  If there was any area of fact in which a justified criticism could be raised, apart from the matter I have already mentioned under the first ground, it was in relation to the appellant’s character witness, Miss Chan Wai Lin, who was called to give evidence as someone who had known the appellant for 23 years.  She thought that it was “not likely possible” that the appellant would assault someone.  This evidence ought to have been balanced with a reference to the appellant’s conviction for assault in 1982 because, although a very long time ago, the court would have been left with the understanding that the appellant was someone who had no record for violence when, in truth, this was not the case.  Of course, it may be said that an experienced magistrate or judge would have paid not the slightest attention to a relatively minor conviction well over 20 years earlier but an important principle was involved which is that no court should ever be misled into believing something when it is known that the version being put forward is not strictly correct.

24.  I am grateful to Mr Ho, who did not appear in the court below, for his very able submissions on the appellant’s behalf.  That being said, I am nevertheless satisfied that the evidence in this case established the appellant’s guilt to the standard required in a criminal trial.

25.  Accordingly, the appeal is dismissed.