R. v. WONG HANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.527 OF 1996

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J U D G M E N T

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1. The appellant was convicted of assault occasioning actual bodily harm. He was fined $2,000 and ordered to pay $1,000 costs. He now appeals against conviction.

2. The victim was a woman of 66 years of age. However, she was still working. She was a collector of rubbish at an industrial centre in Tsing Yi Island. The appellant was a construction worker in the area. On 14th July 1995, they had an argument and had to be separated by the people around. That was not the end of the matter. On the following day, early in the morning at 6:40 am when they were each going on to their own work, they unfortunately met each other again. An argument ensued. They threw paper rolls at each other. According to the victim, the appellant used a trolley and pushed against her. She feared that it might break her legs and so she used her hand to ward it off. In the process, her left forearm was injured.

3. The defendant gave evidence. He denied as he denies before me that he had assaulted her by pushing trolley against her. He said they had an argument. The appellant tried to grab hold of him from behind and hit him but he dodged that and so she came and tried to grab him in the front. He used his hand to ward her off but this failed and finally they were separated by the watchman.

4. The Magistrate apparently rejected the appellant's evidence. She set out a number of reasons for that. I must say I do not agree with those reasons. First of all, she said that she did not accept the story of the appellant by looking at the way he gave evidence and his demeanour in court. Demeanour was always deceptive and the Court of Appeal has said that this should be the last resort in assessing a witness. One should test the evidence against other evidence and the circumstances. Secondly, the learned Magistrate also said that there was incredible for the appellant not to be able to swing off the PW1 and had to require the help of the watchman.

5. I am not sure I would agree with that. The evidence shows that the lady tried to grab hold of him from behind and later grabbed hold of him in the front. In these circumstances, we have a woman who was determined to quarrel with the appellant. In the heat of an argument, it would not be easy for the appellant in the circumstances to free himself. It is in fact consistent with what he tried to say in his evidence-in-chief or under cross-examination. He said that he did not want to use force on the woman lest she would fall and get injured. This may be explain why he was not able to swing her off at the beginning. And then, there was the watchman. I am not surprised that during this struggle, someone came to separate the two. This happened on the day before. They had argued between themselves. They had been throwing things at each other. I am sure that had attracted some attention. But that may not be a good reason for rejecting his evidence.

6. Then the Magistrate said his evidence was different from his cautioned statement. That I cannot agree. In his statement he denied that he had ever assaulted the woman. He said he had used his hand to ward off the PW1. That would in my view be consistent with what he said in his oral evidence. He said that it was difficult to dodge the PW1's grabbing. It was suggested that he did not mention in the cautioned statement about the presence of the watchman. I think it is quite clear that the appellant is not a well-educated person and looking at the cautioned statement, it appears that it was a question and answer form and he just answered those questions put to him. He was asked whether he had assaulted the woman. He was not asked whether there was any watchman present. So it is understandable that he did not mention that. When one looks at the evidence, it is not free from doubt that the appellant did not have the intention to injure the lady.

7. When one considers the lady's evidence, one has the same or equally similar criticism. First, she did not tell the police about the throwing of things during the argument and second, it is noticeable that during the examination-in-chief, she did not tell the court that she had grabbed or at least tried to grab hold of the appellant before the appellant pushed the trolley at her. It was only during cross-examination that she admitted that she had tried to do so but failed. Third, she, I think in her cautioned statement to the police, said that the appellant had lifted the trolley and tried to throw it at her. Looking at the photograph, I am not sure that this would be an easily thing to do. Any way, in her evidence she said he did not do so but had just moved and swung the trolley from side to side. I am not free from doubt that the learned Magistrate had correctly assessed the evidence particularly that of the appellant. It may or may not be the case that the appellant had done what was alleged.

8. In the circumstances, I do have a lurking doubt as to whether the proper approach had been adopted and that the benefit of the doubt had been given to the appellant. So I would allow the appeal, quash the conviction and set aside the fines and costs.