HKSAR v. TONG CHING HANG AND ANOTHER

HCMA 498/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 498 OF 2002

(ON APPEAL FROM STCC 700248/2001)

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J U D G M E N T

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1. On 11 April this year each of the appellants was convicted after trial of 2 offences of common assault. They were both placed on probation for a period of 12 months.

2. The 1st appellant, who was represented before me by Mr Coghlan, appealed against both his conviction and sentence whilst the 2nd appellant, who was represented by Mr Chow, appealed against his conviction only.

3. The 1st appellant's perfected grounds of appeal were as follows:-

"Against Conviction

1. The Learned Magistrate had erred in law and in fact to find that the Appellant had participated in a joint enterprise to assault the victim.

2. The Learned Magistrate had erred in law in failing to give herself a credibility direction as to the Appellant's exculpatory out of Court statement; namely Exhibit P5.

2.1. The Learned Magistrate had only directed herself on propensity re the clear record of the Appellant in her reasons for verdict; nonetheless the Learned Magistrate should have directed herself regarding the Appellant's good character when considering the credibility of the Appellant's statement to police.

R v Vye and Others [1993] 1 WLR 471

2.2. The Learned Magistrate thus may not have properly assessed the weight of Exhibit P5.

Against Sentence

3. The Learned Magistrate had failed to consider sufficiently or at all that a Care and Protection Order is the best and/or the most appropriate sentence/punishment for the Appellant.

4. The Learned Magistrate had failed to consider sufficiently or at all mitigations put forward by the Appellant and the exceptional consequence of a criminal conviction on the Appellant."

4. The 2nd appellant's perfected grounds of appeal against conviction can be summarised as follows:-

"1 A dock identification of the 2nd appellant should not have been allowed during the trial.

2. When PW1 identified the appellant by a wrong name during dock identification, the learned magistrate erred in drawing the inference that PW1's only error went to the name and not to the recognition of the face or person in the absence of no or no sufficient evidence to prove this was the case.

3. The learned magistrate erred in finding PW1's evidence had discrepancies of minor matters only without considering sufficiently or at all the significance of those discrepancies.

4. The learned magistrate erred in finding that the 2nd appellant did hit PW1 on his face on both occasions or alternatively that the 2nd appellant was liable for the offences as charged because of his mere presence on both occasions.

5. In all circumstances, the convictions of the 2nd appellant were unsafe and unsatisfactory."

5. The incidents which led to the trial of the appellants and to three other boys pleading guilty were, in truth, incidents of schoolboy 'bullying' when five boys set upon another boy in school on two separate occasions. The five boys were all aged 14 or 15.

6. The learned magistrate helpfully set out in her 'statement of findings and reasons for sentence' the case which was presented to her as follows:-

"Prosecution's evidence

The prosecution's case came mainly from the oral evidence of [the victim]. At about 1:30 p.m. on the material date, as he was going up the stairs of his school, someone pushed him from behind. He turned and asked who pushed him, and [the 2nd appellant], who was with his four co-defendants, replied "Why can't I push you?"

On reaching the 2nd floor, the group crowded [the victim] to the wall, where (D5) hit him on the head, and [the 2nd appellant] hit him on the face, before others in the group joined in. The group dispersed when a prefect came along.

Later, at about 3:30 p.m. on the same day, as [the victim] was leaving his classroom, the gang approached him again. D5 grabbed his shirt and pulled him to the snack shop, followed by the others. There, D5 hit him on the body and head, and [the 2nd appellant] hit him on the face, and the others then joined in. He only managed to escape when someone shouted that a teacher was coming.

[The victim] later reported the matter to the discipline teacher, and he identified the five defendants from the school's photo album.

The defence case

The appellants chose to keep silent as was their right, and I did not place any adverse inference on this whatsoever. They both have a clear conviction record and I gave myself a Berrada warning as to propensity.

[The 1st appellant's] case, according to his legal representative, was that the victim and D5 had quarrelled and fought on the 2nd floor, and that he had left before the end of that fight. Regarding the second assault, his case is that he saw [the 2nd appellant] and D5 with the victim near the tuckshop, he went over and watched the incident.

[The 2nd appellant's] case, according to his counsel, was that during both incidents, if there was contact between the appellant and the victim, then such contact was accidental."

7. The learned magistrate then gave her evaluation of the case before her in her 'statement' as follows:-

"Although the victim did not know the appellants by name before that date, he had seen them in school with their group, as they were all students in the same school. He had seen [them] close up on the staircase just prior to the first assault, and also during the first and second assault, when the lighting was good. The identification was made shortly after.

[The victim] identified the 2nd appellant and all the other defendants twice, from the school's photo album, and his recognition of the appellants is according to Turnbull's guidelines. During trial, [the victim] had called the 2nd appellant by the wrong name, but he identified him physically in court three times. His only error went to the name, and not to the recognition of the face or person.

I accept [the victims] account as true.

Charges 1 and 2 the 2nd appellant

I will deal with the 2nd appellant first. [The victim] said that the 2nd appellant hit him on the face during the first assault (charge 1), and also on the face during the second assault (charge 2). His role in the incidents occurred during the early stages of both assaults, there could be no possibility that either of these contacts were accidental.

Charge 1 the 1st appellant

The victim said that on reaching the staircase, the five boys in the group crowded around him, pressing him to the wall such that he could not escape the assault from D5 and the 2nd appellant, and later on when others joined in. He was not sure if the 1st appellant had joined in the first assault. However, even if he did not use hands or feet to assault the victim, by the fact that the 1st appellant had taken part in crowding and pressing [the victim] to the wall, such that he had no way to escape, the 1st appellant had joined in, and was part of the enterprise to assault [the victim].

Charge 2 the 1st appellant

[The victim] said that when he reached the doorway of the classroom, the five defendants approached him, and after D5 grabbed him by the shirt, the other four defendants went with them to the tuckshop. At the tuckshop the five students had surrounded him again, and the 2nd appellant and D5 assaulted him, and then others in the group joined in.

Again, even if the 1st appellant had not physically laid hands or feet on [the victim] during the second assault, the fact that he had joined in to ambush [the victim], took him to the tuckshop and then surrounded him about 11/2 feet away during the second assault this is evidence of his involvement in the assault. His actions, presence, proximity and position showed that he was not just an onlooker, trailing in the footsteps of others out of curiosity, but that he was part of the enterprise.

After careful consideration of all the evidence, I was satisfied that all elements of both charges have been proved beyond reasonable doubt against both appellants, and I found them both guilty of charges 1 and 2."

The appeals against conviction

8. Mr Coghlan was lately instructed in this appeal for the 1st appellant. He did not draft or 'perfect' the grounds of appeal which I have recited above the second of which at least in my view is patent nonsense and unarguable.

9. In the event, for other reasons which will become apparent, the 1st appellant's appeal against conviction was abandoned during the hearing.

10. As to the 2nd appellant's grounds of appeal against conviction they seem to me to amount to no more than this: that the magistrate should not have admitted into evidence the victim's dock identification of the 2nd appellant as being one of his assailants and even if such identification was admissible it should have carried no weight whatsoever because that identification referred to the 2nd appellant as having the name of one of his co-defendants.

11. What in fact apparently happened was this. After he was assaulted the victim was shown a photograph of all of the children who attended the school. He pointed out on that photograph the five boys who had assaulted him and whom he recognised not only by reason of the fact that they had assaulted him but also by reason of seeing them on a fairly regular basis during 'breaks' or 'recesses' at the school.

12. He did not know their names, and the names of the five boys whom he identified on the photograph were given to him and he wrote them down on a piece of paper. Those five boys (the five defendants) were arrested. In a statement which he made to the police the victim referred to the name of the 2nd defendant when he was explaining who had hit him two times in the face.

13. At trial the victim was asked (apparently more than once) who it was that he was referring to by that name and he pointed out the 2nd appellant whom he said he recognised as a boy whom he saw fairly regularly at school and as the boy who had hit him twice in the face.

14. As will be plain from what the magistrate said in her 'statement' she was in no doubt that the victim had been mistaken as to the name of the 2nd appellant and not as to his participation in the assaults, and that was a view which she was perfectly entitled to form as the 'trier of fact'.

15. In my view, given the circumstances of the initial identification by photograph and the overall nature of the case it was not necessary to conduct a formal identification parade and the 'dock identification' of the 2nd appellant by the victim was both admissible and properly admitted into evidence.

16. It was for these reasons that I dismissed the 2nd appellants appeal against conviction on 24 September.

The 1st appellant's appeal against sentence

17. From what Mr Coghlan said to me during the hearing of this appeal I was left in no doubt that what was of real concern to the 1st appellant and (perhaps more particularly) to his mother was not simply his conviction but his resulting sentence, the undoubted consequence of which was that (because it necessarily followed a criminal conviction) he could not pursue his planned (and paid for) studies overseas because he had been denied a visa.

18. The possibility of that happening was referred to the learned magistrate in mitigation following the trial. What she said about it was this:-

"Reasons for Sentence for (the 1st appellant)

I had sentenced (him) to 12 months probation, with special conditions, and it is against this sentence that he also appeals. The maximum sentence under section 40 is one year imprisonment.

I had the benefit of probation officer's report before sentencing, and this report showed that (the 1st appellant) was 14 years old at the time of the offence, and is a form 3 student. His father having deserted the family three years ago, he now lives with his mother and younger brother. The report also recommended putting him under a care and protection order.

However, under section 34(1) of the Protection of Children and Juveniles Ordinance, Cap213, the court can place a child or juvenile under a supervision order if he is in need of care or protection, and under section 34(2), such a child or juvenile means one

"(a) who has been or is being assaulted, ill-treated, neglected or sexually abused; or

(b) whose health, development or welfare has been or is being neglected or avoidably impaired; or

(c) whose health, development or welfare appears likely to be neglected or avoidably impaired; or

(d) who is beyond control, to the extent that harm may be caused to him or to other,

and who requires care or protection."

The report showed that [the 1st appellant] does not fall into any of the above categories, and thus he is not deemed to be in need of C&P.

After he was placed on probation, his family paid the school fees to secure a place for him to study at a school in Canada, from September 2002. Upon review, I was again urged to place him on C&P, and to dismiss the charge, so that he can go to Canada for studies. There was however, no mention in the school documents produced to show that the placement would be withdrawn if he did not have a clear record, nor will placing him on probation prevent him from attending this school the probation services will, I am sure, make due allowance for this at the appropriate time.

Regarding parity of sentences, I accept that [the 1st appellant's] role is minor in comparison to that of [the 2nd appellant] and D5, which is why I had called for detention, training centre and Young Offender Assessment Panel reports on these two defendants only, and not [the 1st appellant]. This entailed the two defendants being remanded in custody for three weeks whilst these reports were prepared. Eventually, [the 2nd appellant] and D5 were given 12 and 18 months probation respectively."

19. What Mr Coghlan submitted to me about that was this :-

(a) the 1st appellant's participation in the assaults was minor (as was recognised by the magistrate in her 'statement'). He was in fact aiding and abetting others by his presence;

(b) the probation report upon the 1st appellant not only stated that a probation order was inappropriate but went on to recommend "a moderate mode of supervision" which could best be met by the making of an order under section 34(1)(b) & (d) of the Protection of Children and Juveniles Ordinance (Cap. 213) committing him to the care of his mother for a period of 12 months;

(c) the learned magistrate had made such an order in respect of D1 despite the fact that he was recommended for probation and not for a section 34 order;

(d) D1's participation in the assaults was no more and no less than that of the 1st appellant albeit that D1 had pleaded guilty to the offences [and I interject here just to say that according to the probation report on the 1st appellant the reason why he pleaded not guilty was because he had not hit anybody]; and

(e) that the magistrate had adopted too strict an interpretation of the provisions of section 34(b) in concluding that the 1st appellant did not fall into that category. The fact of the matter is, so argued Mr Coghlan, that he comes from a broken home and that in itself was shown to have impaired his welfare and possibly his development in that he had (as the probation report put it) "associated with peers who had resorted to violence for conflict resolution" and that "after proceeding to form 2 he had turned to peers for emotional support and companionship". The 1st appellant had been expelled from the school following the incident.

20. It was in all of the circumstances of this case regarding the nature of offences; regarding the 1st appellant and his co-defendants; and given the consequences of the Probation Order (following upon conviction) on the 1st appellant in terms of his welfare and development that on the 25 September I felt that the justice of the case could properly be met by replacing that Order with a Care and Protection Order which will remain in force until the expiration of 12 months from 2 May 2002 after which he should be in a position to continue his education overseas.

21. Accordingly on the 25 September I ordered that the 1st appellant be committed to the care of his mother and placed under the supervision of a Social Welfare officer for that period. As a result, the convictions will be quashed or, as the learned magistrate put it in respect of D1 (applying the words of section 15(1)(a) of the Juvenile Offenders Ordinance) the charges are dismissed.