HKSAR v. CHOW WAI CHUEN

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 337/97

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of claiming to be a member of a triad society and a charge of common assault. On the first charge, he was sentenced to 6 months' imprisonment, suspended for 2 years. He was fined $1,000 and ordered to pay compensation of $1,000 in respect of the second charge. He appeals against his convictions.

2. The evidence comes from two witnesses who were PW1 and PW2. The appellant did not give evidence and did not call any witness. PW1 was a sales assistant of the Park'N Shop at Choi Yuen Estate. While he was changing price tags, a male Chow Kai-biu and a female Ching Yan approached. Ching Yan scolded him in foul language and he scolded back. After the exchange of abuses, Ching Yan and the man left but before they did Ching Yan told him to be careful. Minutes later, Chow Kai-biu and Ching Yan returned with the appellant and another male. The appellant asked PW1 why he scolded Ching Yan. PW1 replied that it was Ching Yan who scolded him first. At this point of time, the appellant accused PW1 of bad manner and punched him four times at his chest and abdomen. The appellant also shouted out loudly that he was Wo Shing Wo. The appellant was very hostile at that time. One of the other males had to go to locate the manager. PW1 admitted that he knew Ching Yan and had gone out with her and other friends once about 6 months before the incident.

3. PW2 was also working at the same shop at the time when he heard noise of quarrelling between PW1 and a female. There were two boys behind the girl. The girl and the two boys then left but returned some minutes later with the appellant. The girl accused PW1 of scolding her to which PW1 denied. The appellant told PW1 if he did not admit he would beat him up. The appellant then pushed PW1 and kneed him. The appellant also said that he was Wo Shing Wo Ah Chuen. He punched PW1's back and kneed his waist. In cross-examination, he was asked why he was so sure in court that the appellant claimed to be Wo Shing Wo which was contrary to what he said in the witness statement. He agreed that in his witness statement he was not sure whether the appellant claimed that he was Sun Yee On or Wo Shing Wo, it was the police and PW1 who told him after giving the statement.

4. Miss Draycott, who appears for the appellant, complains that the details of the assault given by PW1 and PW2 were different and not supported by the medical findings. The medical report only says that there was tenderness on the front chest of PW1. In paragraph 5 of the statement of findings of the magistrate at p.39 of the Appeal Bundle, the magistrate made these findings:

"I had carefully considered the evidence of the prosecution, I found PW1 quite guarded in disclosing the relationship of the girl but he was in general forthcoming. However, I was impressed that PW2 was accurate and reliable. I noted that there was discrepancy as to the way PW1 was assulted. I accepted PW2's version as he was observing as a bystander. I noted that PW2 was suspected to have stolen from the shop, however, in the absence of further information, I did not think I should discount PW2's credibility. So far as there was any other inconsistency between PW1 and PW2, I accepted PW2's version. When the evidence of both prosecution witnesses were read together, coupled with the medical report which was consistent with the allegation, I was satisfied beyond reasonable doubt that the elements of both charges were proved. I convicted the appellant accordingly."

5. It is clear that the magistrate arrived at his conclusion after taking all the evidence into account. He had considered all the discrepancies. In addition, he had the advantage of observing the demeanour of the two witnesses. He was entitled to convict on the evidence before him.

6. The appeal is dismissed.