HKSAR v. CHAN WING YIN

HCMA 219/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 219 OF 2003

(ON APPEAL FROM KCCC 19224/2002)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy of one charge of Common Assault, contrary to Common Law and section 40 of the Offences Against the Persons Ordinance, Cap. 212. He appeals against that conviction.

Prosecution Case

2. The victim, a taxi driver, was sitting in his taxi outside the Guangdong Hotel waiting for customers, when he heard the sound of someone kicking at the passenger door of the car. He left his taxi and saw a young woman, who appeared to be drunk, amongst a group of other persons. He went to the rear of his vehicle to check if any damage was done and was told by the group to go away. The Appellant used a piece of tissue to wipe the passenger door to look for damage and said there was no damage done. The victim persisted in looking at the door. At this point the Appellant allegedly said that the victim was 'too concerned' (a term the Magistrate believed to mean that the victim had over-reacted) and punched the victim on the left side of his jaw using his right fist.

3. The Appellant took a taxi to leave the scene. The victim followed the Appellant's taxi until it reached Lai Kwok Estate where the Appellant lived. The taxi driver reported to the police and the Appellant was arrested. No treatment was sought by the victim for the effect of the punch.

4. In cross-examination, the victim confirmed the group he referred to was 2 females and 2 males with the Appellant behind them. He said that during the incident he had been angry and spoke in a loud voice. He agreed he had threatened that if there were damage done to his taxi someone would have to pay for it.

Defence Case

5. The Appellant elected to give evidence. He had been working late in his office and was telephoned by his friend, DW2, who asked him to join her at a karaoke bar in Tsimshatsui. He said he could only join her later and eventually he arrived at Prat Avenue about 5:30 a.m. At that point, he saw that DW2, her sister and another young woman were involved in a row with the victim. The taxi driver was pointing at DW2, using foul language and repeatedly asking for compensation. The Appellant said he examined the part of the vehicle allegedly damaged but found none. He informed the victim who, according to him, remained abusive and aggressive. He said he stood between the taxi driver and DW2 fearing that his friend would be harmed. The victim then pushed the Appellant, who in turn pushed him on the shoulder. He agreed he left by taxi.

6. DW2's account was that she telephoned the Appellant at 3:30 a.m. asking him to take her home because she was not feeling well. Despite that she stayed in the karaoke bar for a further 2 hours and called Appellant again at 5:00 a.m., telling him that they were leaving and asking him to call her on her mobile phone when he arrived. She said she was waiting at the pavement with her sister when she accidentally leaned on the victim's taxi. The victim became aggressive and agitated and insisted on compensation. The Appellant was talking to the taxi driver when the latter pushed him forcefully with his right hand; the Appellant pushed it away. The upshot of the defence evidence was that it was the taxi driver who had instigated the physical aggression.

Grounds of Appeal

7. The following grounds were advanced on the Appellant's behalf:

(1) the Magistrate erred in relying too heavily on the demeanour of the witnesses to assess their credibility;

(2) the Magistrate relied on irrelevant matters in determining the truth of the Appellant's evidence;

(3) the Magistrate failed to balance the inherent improbabilities in the Appellant's and the victim's testimony;

(4) the Magistrate failed to consider PW1's motive for making a false accusation;

(5) the Magistrate erred in law in relying on his own interpretation of the Chinese version of PW2's testimony;

(6) the Magistrate erred in finding as a fact that PW2 had seen swelling on the victim's face;

(7) the Magistrate confused the testimony of the witnesses;

(8) there was a lurking doubt as to the guilt of the Appellant.

Ground 1

8. Although the Magistrate used the words "Aided by my observation of his demeanour whilst he was giving evidence" in his Statement of Finding, I am satisfied he did not overly rely on demeanour in assessing the credibility of the witnesses but relied on analysis of the evidence in reaching his decision.

9. That comment is followed by an account of what the witness said and why it was that the Magistrate felt sure PW1 was telling the truth. Mere reference to "demeanour" without more, does not establish that a Magistrate was too reliant on it. The Magistrate considered the content of what the witnesses said rather than physical characteristics, mannerisms or body language.

Ground 2

10. This ground alleges that the Magistrate took irrelevant matters into account when he assessed the evidence of the Appellant and his witness, in that he took their differing reasons for being present at the scene as a measure of their credibility on the main issue. The Magistrate was entitled to look at all the evidence, including material that pointed out inherent improbabilities when assessing credibility and was not obliged to set out his every thought process in this regard. There is no substance in this ground.

Ground 3

11. This ground is linked with Ground 2. The Magistrate had to decide whether there had been a common assault as alleged by the taxi-driver. He was faced with conflicting accounts and in essence could do little other than assess credibility on the basis of what the witnesses said in court and what he regarded as inherently probable, or improbable, statements or actions. He was entitled to accept the evidence of PW1 and reject that of the Appellant without going into a complex examination of every detail of the evidence.

12. However the Magistrate's comment, at the penultimate paragraph of his Statement of Findings, when referring to the Appellant and his witness is that "they have been quite liberal in their versions of the truth". It is difficult to decide whether this is a mistranscription for "literal", or whether it means they have taken liberties with the truth so they cannot be believed. If it meant they have lied, it would be better to say so clearly.

Ground 4

13. This ground alleged that the Magistrate failed to consider that PW1 may have had a motive for making a false accusation against the Appellant, his motive being that he wanted monetary compensation.

14. The question of compensation was raised at trial, when PW1 confirmed that he had said that if there were damage done to his taxi someone would have to pay for it. The Appellant and DW2 gave evidence that the victim was insisting on compensation. I have no doubt that in his capacity as a professional tribunal the Magistrate would have had in mind the implications arising from such a demand.

Ground 5

15. The Magistrate is said to have erred in law in relying on his own interpretation of the Chinese version of PW2's testimony. The Magistrate commented, in his oral reasons for verdict, that PW2 the police officer mentioned he had seen a pinkish mark on the taxi driver's face. The Magistrate stated: "I do notice that PW2 the police officer commented that it was "swallow" but I have taken into account the fact that in the Chinese language "red" and "swallow" always come together as a combined term. In fact, quite rightly, PW2 subsequently, when further questioned, accepted that he did not see any swelling." It appears from the context that "swallow" is a mistranscription of "swollen".

16. Counsel for the Appellant submitted that the Magistrate had taken on the role of translator and that if he was not satisfied with the interpretation of the Chinese testimony, he should have sought to clarify the issue at trial and given defence counsel an opportunity to cross-examine on the matter.

17. Although the trial was in English, the Magistrate is a native Chinese speaker and is entitled to comment on evidence before him given in Chinese. It was necessary for him to have discussed his view with the interpreter and clarified whether or not the interpretation should be "red", "red and swollen" or "pinkish", particularly as defence counsel was not a Chinese speaker and because this was a matter the Magistrate considered important enough to rely on. The quoted passage at T14 S-U and T15 A-C is rather garbled and presents difficulties which I refer to in considering Ground 6.

Ground 7

18. The Magistrate is said to have confused the testimony of witnesses and his Statement of Findings does contain some obvious errors. However the extract of the trial transcript and the Statement of Findings reveal that the confusion lies in typographical errors, rather than genuine confusion about who was saying what. For example, in the Statement of Findings the Magistrate said, in commenting on the Appellant's evidence, "the defendant pushed the defendant who in turn pushed the former on the shoulder". Clearly the use of the word "defendant" in the first part of the sentence referred to the victim. This can be confirmed by reading the Magistrate's later comments on the evidence given by DW2. "The defendant was there talking to the victim when the latter pushed him quite forcefully with his right hand. The defendant pushed it off."

19. In a similar example, the Magistrate writes, "In short, the defendant stated he did not witness how the incident started but it was the defendant who was the aggressive one". From the context it is quite clear that the second use of the word "defendant" refers to the taxi driver.

20. This was not a difficult or complex case for the Magistrate to consider, with one witness for the prosecution in relation to the incident itself and the evidence of the Appellant and his witness. The accounts of the defence witnesses about the incident were largely similar and both were to the effect that the taxi driver was the aggressor. The Magistrate was not under any illusions as to the precise nature of the defence.

21. However, I find it disturbing that this Statement of Findings has been prepared so carelessly. If the typed copy had been proof-read by the Magistrate it is difficult to see how such glaring errors could have escaped his attention.

22. I accept that Magistrates have a heavy caseload and that the preparation and fairing of Statements of Findings places an added burden on them. However it is imperative that Statements of Findings are prepared carefully and with eagle-eyed attention to detail. It is particularly important now that an appellate court is unlikely to have a transcript of trial against which details can be checked. The errors in this particular instance, fortunately, can be corrected from a reading of the Statement of Findings itself that will not always be possible.

Ground 6

23. The Magistrate allegedly erred in finding as a fact that PW2, a police officer, had seen swelling on the victim's face. The oral reasons for verdict show that PW2 did say initially that he had seen swelling on the victim's face, but later withdrew that statement. At the time the oral reasons were delivered, the Magistrate and counsel appear to have accepted that there was no swelling, although as Appellant's counsel suggests that is not entirely clear from the Magistrate's oral reasons for verdict. The Magistrate stated, "That bit of evidence was, in fact, in a way, corroborated by PW2 who is the police officer who actually witnessed the pinkish mark on his [PW1's] face. I do notice that PW2, the police officer, mentioned that it was "swallow", but I take into account the fact that, in the Chinese language, "red" and "swallow" always come together as a combined term. In fact, quite rightly, PW2 subsequently when further questioned, accepted that he did not see any swelling". However, in his Statement of Findings, the Magistrate held that PW2 had seen both redness and swelling on PW1's face and that this had not been challenged. He commented "He (PW2) did observe that there was redness and swelling on the left side of the victim's face. The substance of his evidence was not challenged under cross-examination." The closing address by defence counsel shows that was incorrect as reference was made to "a pinkish mark".

24. This confusion causes me to believe that the Magistrate has erred in dealing with the evidence. I should refer first to the inadvisability of a Magistrate giving immediate, off-the cuff, oral reasons for verdict of some length and, later preparing a written Statement of Findings which is on important aspects at variance with the oral reasons, without attempting to reconcile the two.

25. Here the Magistrate does not appear to have read the transcript of his oral reasons before preparing his Statement of Findings I say that because it contains errors like "swallow" for "swollen" which could have and should have been corrected, so as to avoid the nonsensical repetition of the same errors in the Statement of Findings.

26. Nor has the Magistrate declared in his Statement of Findings that he has incorporated his oral reasons into his Statement of Findings as he could have done, or in what way he relies on them, if at all. If he had followed that course he would have been aware of his own apparent assessment of PW2's evidence, that all he saw on the victim's face was a pinkish mark.

27. Instead the Magistrate states that P2's evidence was that he saw the victim's face was red and swollen and that that evidence was not challenged. Again this is a matter the Magistrate could have dealt with and clarified if he had taken the time to read the transcript of his oral reasons, or had checked his own notes of trial, if any.

28. As a charge of common assault does not require the prosecution to establish actual injury it would have been possible for the Magistrate to reject entirely PW2's evidence. However he confuses the issue by saying in his oral reasons that what PW2 saw corroborates the evidence of the victim something he does not repeat in his Statement of Findings. In the oral reasons he apparently treats PW2's evidence as useful support for what PW1 said about the incident; in his Statement of Findings he appears to have taken an erroneous, or contradictory, view of PW2's evidence.

29. Given this confusion it is not possible to be sure what evidence the Magistrate actually relied on in reaching his decision about the Appellant's guilt. Nor is it possible to decide whether or not he read the transcript and what status, if any, he accorded his oral reasons for verdict. It is not possible to be sure that his finding is safe. Accordingly I allow this appeal and quash the conviction. The fine and compensation are ordered to be returned.