R. v. KWONG WING ON and Another

1996, MA No.574

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H E A D N O T E

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A Magistrate is not in his Statement of Findings expected to deal with every discrepancy, omission, contradiction or improbability which might be uncovered by a microscopic dissection of a transcript. Discrepancies and omissions will occur even with truthful witnesses. A realistic attitude is necessary, and the approach should be to ask whether there have been material and significant discrepancies, improbabilities or omissions such as would lead or should lead a tribunal to doubt credibility on central facts.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 574 OF 1996

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J U D G M E N T

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1. There are two appellants in this case to whom I shall refer as the 1st and 2nd defendants, for those where their labels in the Magistrate's Court and it is convenient to retain those references.

2. There are two convictions which are the subject of this appeal, both arising from an incident on 10th May 1995. The 1st and 2nd defendants were convicted of assaulting Chan Hon Lam. The 1st defendant was also convicted of assaulting Chan Kai Ho.

3. The background was this. The 2nd defendant was the landlord of the premises occupied by Mr Chan Hon Lam and his wife and son. The son is the alleged victim of the second offence. There was evidence that the tenant was not regular with payment of rent, and that the 2nd defendant wanted early occupation of the premises. The tenancy ran from January 1995 to January 1996. On the night of 10th May, at about 10:00 p.m., the 2nd defendant went to the premises with three other men, one of whom was the 1st defendant.

4. The tenant's evidence was that the 2nd defendant asked Mr Chan's family to move out immediately, but that he refused. The tenant's wife asked them to discuss the matter peacefully, whereupon the 2nd defendant is said to have pushed her. The tenant said in evidence that he moved forward and told the 2nd defendant not to push his wife, whereupon the 2nd defendant grabbed him by the neck from behind, and twisted his arm behind his back whilst the 1st defendant then assaulted him with his fists. His testimony was that he was assaulted on the leg, back and chest. At that point, the son is said to have rushed into the room, protesting about what was happening, and tried to stand between his father and the assailants. Then the 1st and 2nd defendants, and one or more the others assaulted the son. The tenant asked his wife to call the police, which she did. The tenant said that he sustained a bruise to the neck and abrasions to his back and that his abdomen sustained injuries and bled. He was examined later that evening and a medical report which was admitted into evidence speaks of red patches and tenderness of the back, and of redness to the left flank and shows that there was some examination about the range of movement of the waist.

5. The son's testimony was that he was in the toilet when he heard arguing and foul language, and went to investigate. He saw his father being assaulted, and tried to separate the assailant from him. The 1st defendant then struck the son on his face and abdomen. He blacked out for a short while. The medical evidence shows that the son had a swelling in the region of his eye, tenderness over left side of the face and nose, and tenderness over the abdomen.

6. The appellants were represented at trial. Although there is some suggestion at one stage that counsel would no longer represent them, I am informed today that they were in effect represented throughout.

7. The 1st defendant said that he had gone to the premises with the 2nd defendant, because the 2nd defendant had told him that the tenant had a troublesome son. There was indeed an argument that evening but no assault. He came into no physical contact with any member of the tenant's family, or with the tenant. The son abused him with foul language, said that he was a triad member, and threatened to chop them with a knife if they did not leave. He did not know how the injuries to the son were caused and speculated that they may have been caused when the colleague blocked the son's way when the son wanted to go to the kitchen to fetch a knife.

8. The 2nd defendant also denied assaulting anyone. He could not remember whether there was any physical contact with either complainant. He did not receive any injuries that night.

9. The magistrate had dealt very fully with the evidence, and has undertaken a thorough analysis of it. In the event, he believed the evidence of the prosecution witnesses and rejected that of the defence.

10. Mr Yeung, on behalf of the appellants, has presented today a very full and able submission and he has said everything that could possibly be said on his clients' behalf. I hope I might be forgiven if I do not deal with each detail of the submission which is not to say that he did not give food for thought.

11. Amongst the main complaints were that the inherent probabilities lay against the Crown and with the defence, not least because there were things, for example, not said by the prosecution witnesses to the police which one might surely have expected them to say. It also forms part of submissions as to a host of discrepancies which Mr Yeung has itemised. He also argued that the evidence of the second prosecution witness lacked the kind of detail which would have lent it verisimilitude. He also said that the medical evidence was not at one with the complaints or the evidence of the two prosecution witnesses.

12. Pausing at this juncture, I would say this : that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.

13. In this case, there is a great danger of losing sight of the wood for the trees. If one is talking about inherent probabilities, they lie well in favour of the Crown, for central to the prosecution case are two undisputed facts : first, that the 2nd defendant took three grown men with him to a tenant's private dwelling at night when he sought to persuade the tenant to leave; second, that at the end of whatever transpired, the two prosecution witnesses were injured and the two defendants were not, and neither defendant can provide any sensible reason for the injuries sustained by the tenant and his son.

14. Beyond that, the magistrate has addressed the discrepancies in more than passing detail. It is not necessary for him to itemise each and every one. He had in mind that there were discrepancies and has spent some effort in dealing with them in the Statement of Findings. As for the brevity of statements to the police on the night in question and omissions from those statements, the first prosecution witness gave evidence about the excited and emotional state in which he found himself in the immediate aftermath of the fracas. In the circumstances, it is not surprising that matters were omitted. I am also satisfied that the account given by the second prosecution witness about the assault was, although brief, adequate for the purpose, and its brevity causes me no concern.

15. Mr Yeung then complains that the magistrate considered the evidence of the two defendants separately, and had they been considered together, their combined impact would have led the magistrate to a different conclusion. I am satisfied that the magistrate took the combined impact into account. All he was saying in the passage about which Mr Yeung's complaints, where he refers to considering the evidence separately, was that he was considering the case for and against each separately; in other words, that the fact, for example, that he disbelieved one, should not necessarily mean that he had to disbelieve the other.

16. Finally, there must be mentioned the fact that the magistrate did not allude in his Statement of Findings to the good character of the 2nd defendant. That is hardly surprising because it was a fact not mentioned by anyone in the course of evidence. Nor was it part of the submissions at the end of the case. Both defendants were represented by an experienced counsel. It is said that after the magistrate had learnt, before sentence, though after verdict, that the 2nd defendant had no previous convictions, the magistrate ought to have reviewed himself. He was not asked to do so, and I think it is far fetched to expect him in the circumstances to have embarked upon a review. It is to be noted that the Court of Appeal in the case of R. v. Cheng King Ho, Crim. App. No.255 of 1993, emphasised :

"... that unless good character is positively advanced and supported by evidence, ... it does not fall to the judge to consider whether he should give the jury a Berrada or a Vye direction."

17. In any event, one has I think to have regard to the nature of the particular case and the allegation in it. This was a case in which, it was common ground, there took place a heated argument between landlord and tenant, where the landlord had gone to the tenant's premises to seek the tenant's removal. In such heated circumstances, the fact of good character is likely to have significantly less importance than in many other sets of circumstances. I am bound to say that if the magistrate had thought the fact of good character once revealed to him to be of material significance, it is likely that he would have said so there and then, when the fact of good character was raised at the time of the sentence.

18. It is said that the magistrate emphasised the good character of the second prosecution witness. That is not what he was doing. What he was saying was that it was unlikely that a lad of 17 years would, in the face of a phalanx of four grown men, have ran to the kitchen for a knife with which to threaten them.

19. In all the circumstances, I am satisfied that the magistrate considered the evidence fully and carefully, and made adequate allowance for discrepancies and inconsistencies. I am also satisfied that he applied the law correctly. The other grounds of appeal also fail for the reasons which I have explained. Accordingly the appeal, in respect of both defendants, is dismissed.