THE QUEEN v. TAI YUEN YAM AND ANOTHER

IN THE HIGH COURT

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JUDGMENT

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Mayo JA:

1. At the conclusion of these appeals I informed the parties that I would be quashing these convictions and setting aside the sentences and that I would be giving my reasons for this later. This I now do.

2. The appellants are appealing against their convictions on four counts of assault occasioning actual bodily harm contrary to s39 of the Offences Against the Person Ordinance, Cap 212 and one count of causing damage to property contrary to s60(1) of the Crimes Ordinance, Cap. 200.

3. They were convicted at the conclusion of a trial before Ms Remedios, a magistrate at the Fanling Magistracy.

4. The charges arose out of an incident which occurred on 8 June 1995.

5. The victims of the assaults who were also the owners of the property damaged are the proprietors of a firm which undertakes decoration work at an estate at Fanling. It trades under the name Hing Yip Decoration Company. The firm is not included in the list of firms which are recommended to undertake work which is maintained by the Housing Authority.

6. All four of the partners in the firm gave evidence as to what transpired on the day in question.

7. According to them a group of men which included the appellants attended at about 3pm in the afternoon of 8 June and caused a commotion. The thrust of the complaint which was being made by the man was that they were in charge in that area and no one had agreed to Hing Yip conducting its business at the estate.

8. Each of the four partners gave detailed evidence of being assaulted by the men. They all gave evidence that the appellants assumed a prominent role in the assaults which took place. The assaults were not insignificant. In each case a number of blows were struck including blunt instruments being used by the assailants. In her statement of findings Ms Remedios expresses the opinion that the injuries sustained as a consequence of the assaults were consistent with the medical evidence which was adduced by the prosecution.

9. Immediately following the assaults the defendants caused the damage referred to in the 5th count.

10. On the following day three of the partners reported the assaults to the police. The 4th partner did not do so until some days later as according to him he had proceeded to China to obtain medical treatment.

11. D1 did not give evidence at the trial. D2 did. He denied being present at the time of the offences. He called alibi evidence in support of this. His employer gave evidence that he had been present in his employment at the relevant time. He gave this evidence on the basis of the time-keeping records of his company which indicated that he was at work at the time. He said that if the appellant wished to absent himself from his employment it was necessary for him to obtain permission for this. No such permission had been given on that day.

12. Nearly two months after the report to the police an identification parade was conducted. At this parade three of the four partners had identified D1 as being one of the men who had assumed a prominent role in the incident and all of the partners identified D2.

13. The appellants were represented at the trial below. All of the partners were subjected to lengthy cross-examination much of which was directed towards inconsistencies between the evidence given by the victims and the contents of statements they had made to the police shortly after the incident.

14. The main explanation given for these inconsistencies was that the police officers taking the statements had not accurately recorded all of the details which had been given. Indeed a complaint had been made concerning this to CAPO.

15. All of this was before the learned magistrate.

16. The perfected grounds of appeal focus upon the said inconsistencies and a complaint is made that having regard to the allegations made to CAPO it was unsafe to attach weight to the testimony of the victims.

17. Miss Remedios took the view that the conditions at the time of the incident would have been chaotic and it was not surprising that there should be inconsistency of the type which had occurred.

18. So far as the complaints against the police were concerned she considered that it was inevitably the case that a police officer may not record verbatim everything a complainant says and may refine the statement so as to efficiently reflect the evidence which it is contemplated may be given.

19. While all of this is undoubtedly true it is necessary to consider the problem in further depth in this case.

20. It is evident from the papers in Magistracy Appeal No. 595/96 that these appellants were convicted of further assaults which occurred on 15 July arising out of what can best be described as the ongoing hostilities between these parties.

21. The magistrate hearing the case the subject of this appeal was not the same magistrate as heard the subsequent case.

22. What is evident from the inconsistencies which were referred to me in detail by Mr Philip Wong for A1 and Mr Hemmings for A2 was that virtually all of the significant inconsistencies referred to were not inconsistencies in the evidence given by the respective witnesses but inconsistencies between the evidence they gave at trial and the contents of the statements which they made to the police shortly after 8 June incident.

23. It will be appreciated that since the making of these statements and the trial the 15 July incident occurred. It is accordingly particularly important to consider discrepancies between the contents of the cautioned statements and the evidence in court due to the possibility that the events which occurred on 15 July may well have had a considerable impact upon the evidence which was being adduced.

24. A good example of this is the evidence concerning the role which was assumed by D2. PW1,2 and 3 did not attribute any role to D2 in their statements to the police. They did however attribute a role to him in their evidence in court. The explanation given for this disparity was the allegation that the police officers taking the statements had refused to accurately record what they said. They went further and made a number of serious allegations against the police. Page 44 of transcript of the proceedings records.

25. It would seem to me to be imperative that there should be a resolution of the question as to whether the statements made by these prosecution witnesses reflected accurately what they had said to the police officers or whether there had indeed been alterations to or deletions from what was said. This would have gone to the heart of the question as to whether the witnesses could accurately have been described as truthful and reliable witnesses. More than this it would have had a direct bearing upon the accuracy of the testimony they gave at the trial.

26. What is clear is that the way in which the learned magistrate dealt with this problem was unsatisfactory. In their evidence the prosecution witnesses were alleging serious improprieties on the part of the police officers. This went much further than the situation canvassed by the magistrate when she referred to the problems likely to be encountered when police officers take statements.

27. I have considered all of the inconsistencies referred to by counsel carefully. I do not consider that these inconsistencies are capable of being explained away in the way the magistrate has done. Several of them go to the root of the subject matter of the charges.

28. It is perhaps true to say that the underlying problem in this case was the decision not to consolidate the case with FLC 7564/95 as the facts of the two cases were closely connected. The difficulties which arose out of this were compounded by the fact that a different magistrate heard the two cases.

29. An example of the difficulties encountered related to the question of identification. Ms Remedios attaches some weight to the fact that an identification parade was held and the appellants were picked out at the parade. This however overlooks the fact that between the date of the incident and the holding of the identification parade the 15 July incident had occurred. D2 gave evidence in FLC 7564/95 that he had been present at the incident on 15 July but that he had been the victim of an assault rather than having instigated it. It is likely to be the case that these appellants were identified as a result of the 15 July incident.

30. Ms Cheng for the Crown very helpfully and in my view properly conceded that in the circumstances of this case it was difficult to see how justice could be done without consolidating these cases. I agree with this view.

31. For the reasons I have given these convictions cannot be regarded as safe or satisfactory. The appeals must be allowed. the convictions quashed and the sentences set aside.

32. After hearing submissions from counsel I was not prepared to order that there be a retrial of these offences.