HKSAR v. KWOK CHI CHUNG

HCMA 1124/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1124 OF 2003

(ON APPEAL FROM KTCC 5293/2003)

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J U D G M E N T

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1. The Appellant appeals against his conviction. He was charged with one charge of common assault and after trial, he was convicted.

2. The facts as given by the prosecution witnesses were that on the day of the offence, PW1, who was an employee of the Eastern Tunnel Company, was working at his tollbooth at about 6:30 pm. At that time, the Appellant was a passenger in a car and the vehicle driver was paying the toll of $15 with a $10 coin and PW1 had suspected that it was counterfeit, so he asked the driver to pay with a different coin or note. At that time, PW1 had taken the driver's $20 note back to this booth to get change because this exchange between the driver and PW1 had happened a short distance away from the booth because PW1 had stopped the car, a short distance from the booth when he discovered that the $10 coin may be counterfeit. When PW1 took the $20 note back to his booth to get the change for the driver, the driver of the car and the Appellant alighted and followed him back to the booth.

3. A heated argument followed, and the driver complained about PW1's poor attitude and it was during this argument that the Appellant had spat at PW1 and the saliva had hit PW1's face and shirt. At that time, both men also threatened to hit PW1 but were stopped by PW2 and the police were called.

4. PW1's evidence as to the spitting was that he heard a spitting noise and saw the Appellant's mouth move. At that time, the Appellant was standing next to the driver in front of PW1 and it was then he felt the saliva hit his face and his shirt. At that time, PW1 said that he was shocked and he wiped his face with his hand and took off his shirt. Then he saw both men move towards him with clenched fists but PW2 intervened.

5. PW2 was instructed by control room to approach the tollbooth in which PW1 was, when he arrived at a short distance from the booth, he saw two agitated men pointing at the booth shouting. He saw the driver was swearing at PW1, saying he was rude and threatened verbally to hit him. At that time, PW2 said he persuaded him not to.

6. PW2 said that stood in front of the driver and the passenger moved behind him and to his right. PW2 described the Appellant as facing the booth. He then heard a sound of someone spitting, he turned his head and saw spit in the air, but he did not note where the spit landed and he of course could not see where this spit had come from. He said that he did not see any reaction in PW1 nor did PW1 say anything.

7. PW3 was a police officer who arrived at the scene and upon arrest, the Appellant denied had spat at PW1 but said it was possible that during the shouting saliva had flown out of his month.

8. The Appellant elected to give evidence, he had a clear record and he gave evidence about the poor attitude of PW1. They followed PW1 back to the booth because they wanted his number. And then subsequently, they asked to see the superior, the superior arrived and apologised to them. Subsequently, he was informed that the police were coming. The Appellant denied that he had deliberately spat at PW1.

9. The learned Magistrate after considering the evidence convicted the Appellant based on the evidence of PW1. Mr Wong who represents the Appellant in this case, complains that the learned Magistrate had disregarded the discrepancies between PW1 and PW2, particularly PW1 reaction after the spit had allegedly landed on him.

10. Mr Wong said PW1's evidence was that he had wiped the spit from his clothes and took off his shirt whereas PW2's evidence was that he said he saw no reaction from PW1. The second ground of appeal from Mr Wong is that the learned Magistrate was wrong to find that PW1 had apprehended immediate unlawful violence, just from the fact that the police were called.

11. It is clear that the learned Magistrate at the time when she convicted the Appellant was well aware of the discrepancies between the evidence of PW1 and PW2 as to PW1's reaction after the spit had landed, but the main issue is whether the Appellant had spat at PW1 and for that the learned Magistrate had relied on the evidence of PW1. PW2's evidence was he only heard the sound and in fact, it was demonstrated in court during the trial as to the sound and certainly, it was not an accidental spit flying out of a person's month when a person is speaking as the learned Magistrate noted in paragraph 12,

"both PW1 and PW2 made this sound in court to demonstrate what they had heard and it sounded like a "too" noise."

So, there was no doubt that it was a deliberate spitting rather than an accidental spit. The issue in the case is did Appellant spit at PW1?

12. The learned Magistrate at the end of the day found that the scene was very heated at that time, they were arguing and that the driver was swearing and the driver had actually verbally threatened to assault PW1. PW1 had said that both men raised their fists to him and it was PW2 who had intervened at that time to stop this.

13. So, it was chaotic and the learned Magistrate found that she believed PW1's evidence and convicted the Appellant based on his evidence. The discrepancy was in the Magistrate's mind, but at the end of the day she did not find that it affected the reliability of the witnesses. The learned Magistrate specifically dealt with Mr Wong's complaint at paragraph 14 in her Statement of Findings, when she said that it was submitted that the reaction of PW1 was not natural and suggested fabrication and the learned Magistrate said she did not agree as people have different reactions depending on their characters and personalities, his reaction was to call the police.

14. The learned Magistrate was aware of the discrepancies when she gave her oral judgment. As I pointed out to Mr Wong, the counsel who represented the Appellant in the court below had pointed that out in her final submissions.

15. No doubt the situation was chaotic as Miss Yam submitted. Of course, it is the learned Magistrate's duty to resolve any conflict or discrepancy in the evidence, if it directly affects the issues in the case and she did in her Statement of Findings. But at the end of the day, she did not find that it affected her ruling about the credibility of PW1.

16. It has been said time and time again that a Magistrate's finding of facts is seldom interfered with because the learned Magistrate had the opportunity of observing the witnesses giving evidence before her. Unless it can be shown that the learned Magistrate had made an error either in law or procedurally or on the facts and here, it is a matter of a strict denial by the Appellant. It is "one to one" type of case. In this case, the learned Magistrate at the end of the day believed the evidence of the prosecution witnesses, so I do not want to interfere with that as I do not see any reason too.

17. As for Mr Wong's second ground of appeal that the prosecution had not succeeded in proving that PW1 apprehended immediate unlawful violence on him. The learned Magistrate had dealt with this sufficiently in her Statement of Findings and she said this:

"I am sure the appellant by his act of directly spitting at PW1 immediately after the driver threatened PW1, had a hostile intent calculated to cause apprehension in PW1's mind."

So, it is clear that the learned Magistrate found that the actions of the Appellant, immediately after his friend, the driver, had threatened the Appellant, had indeed a hostile intent calculated to cause apprehension in the PW1's mind.

18. I agree therefore that there is enough evidence for the learned Magistrate to convict, so I see no merit in the second ground of appeal and therefore the appeal against conviction is dismissed.