HKSAR v. WONG CHI FUNG

HCMA366/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.366 OF 2004

(ON APPEAL FROM KCCC1390 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on 19 March 2004 of one charge of wounding, contrary to section 19 of the Offences Against the Person Ordinance, and was on the same day sentenced to a period of 10 months' imprisonment. He now appeals that conviction.

2. The facts were simple. It was Halloween. The appellant and others at close to 3 o'clock in the morning were in a pub in Tsim Sha Tsui. The management, to further the occasion, had given customers coloured jelly to throw about in the pub. The man who was eventually injured threw some jelly onto a white shirt worn by a girl and she complained. That man and the manager to the pub went outside to settle the matter, and the girl was given $100 by each.

3. It was alleged that the appellant then came in and argued with one of that man's friends leading to a heated argument between that man and the appellant. When the man left, the evidence was that the appellant grasped a bottle, broke it on the table and then injured the face of PW1 with the bottle. Four men joined in outside the establishment punching the man on the face and chest. The alleged victim when he reached the hospital complained upon seeing the appellant there, and the appellant was arrested by the police.

4. In his evidence, the appellant said that "a scuffle broke out between his group of friends and the friends of the man, ending up in a fight". He did not deny that that he had hit that man but he saw someone had a stick so he fled. He said that he had no girlfriend, had never scolded the injured man and had never attacked him with a bottle.

5. He called in support of his evidence a waitress at the pub. She said that about 10 minutes before PW1's group, that is the alleged victim, departed, she had played finger games with them. They then left and she went to the door of the establishment to see them out and to welcome in another group. She said that a scuffle and the fight then broke out and it was her testimony that she had not seen the appellant attack the man PW1 with a glass bottle. Her evidence was disbelieved by the magistrate.

6. The thrust of the appeal that Mr Oderberg mounts against the conviction is that the magistrate was in a position where he had to consider whether the evidence of the waitress in particular could or might be true, if it was, then he would have to have a doubt in respect of the case for the prosecution as to whether or not the appellant had attacked the man with a broken bottle.

7. The first matter complained of by Mr Oderberg is that in her evidence, DW2, the waitress, said "He was my customer". The magistrate said this :

"When asked about the relationship between her and the defendant, she said, 'He was my customer', not 'a customer' or 'a customer of our pub'. I infer there to be more than what the defendant and DW2 would have us believe."

8. It is clear from this passage that the magistrate was analyzing or purporting to analyze the relationship between the appellant and DW2 and came to the conclusion that it was such that the witness had her own interests to serve in giving evidence favourable to the appellant.

9. The words "He was my customer" can give rise to a number of inferences. They can give rise to the inference that she was the waitress that served him on that evening or that he was a regular customer that she knew well. It was incumbent upon the magistrate to draw the inference in favour of the appellant where two reasonable inferences arise. He did not do so. He drew an inference adverse to the appellant and found that DW2 was less than honest in her witness by virtue of that relationship based upon that one statement. He went on to find that inherently improbable and unconvincing that the waitress would play finger games with the victim's group.

10. Mr Oderberg complains that this is a generalization which he was not entitled to find and I am unable to come to any conclusion concerning that finding.

11. Further, the magistrate found that a series of coincidence had occurred that led him to believe that DW2 was less than an honest witness. The three coincidences were that as the group containing the injured man was leaving the pub she went out with them; that it was a coincidence that the quarrel and fight broke out at that point; and that it happened that the pub was in a corner so she could not avoid seeing the fracas. As to those coincidences it can hardly be a coincidence that she went out given the magistrate's finding that she went to the front door to see out one party and to welcome in another. Secondly, since the fight was between the injured man's party and that of the appellant at the time when the appellant left, it cannot have taken place at any time other than when they exited the premises, that is not a coincidence. The situation of the establishment in a corner so that she was able to see the fight can also not be a coincidence. The magistrate has drawn conclusions adverse to the appellant from what he found to be coincidences but which can be no more than a normal and logical progression of events.

12. Given the relationship, the magistrate found between the appellant and the DW2 and what he found to be coincidences he placed no weight upon the testimony of that witness.

13. I found that he was not entitled to do so, in the circumstances and his dismissal of the evidence of DW2 was not in the circumstances a credible dismissal. The appeal will be allowed and the conviction quashed and sentence be set aside.