HKSAR v. YIP WING CHI LOUIS

HCMA1079/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1079 OF 2002

(ON APPEAL FROM ESCC 2040 OF 2002)

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J U D G M E N T

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1. This appeal arises from four convictions following an incident which occurred at the victim's place of business in January this year. It was common ground at the trial that the appellant did visit the victim there on the day in question. The prosecution's version of events was that the appellant went there with another man; that they burst in, kicking the door open; that they identified the victim as the new proprietor of the business; that the appellant told the victim to close his business in a week otherwise he be chopped to death; the appellant claimed to be "Sun Yee On"; he pushed the victim and broke his rice cooker.

2. The appellant did not give evidence. In an interview with the police he said that he went alone to the premises in question to remonstrate with the victim about an accusation that his mother had stolen an article when the business changed hands and that no more happened and that they both became enraged and swore at each other.

3. It is said that the convictions for claiming to be a member of a triad society, criminal damage, common assault and criminal intimidation were against the weight of the evidence. The case turned on credibility. If the victim was right then the convictions followed. The prosecution were in the position at trial of being able to call a witness. He was a boy who worked next door and he used to chat with the victim. He saw two men arrived at the material time. He went over but was told to leave by one of them in a manner that frightened him. From outside the premises he then heard a banging sound that was consistent with the rice cooker being damaged. When those two men left the premises they paused at this witness' place of work and said to him "Do you want your shop closed down. Bespectacled boy, just mind your own business". The appellant in his interview with the police said that a boy did come in but that the victim told him to leave.

4. The appellant called his mother to give evidence. She related how the victim had called her and asked her if she had taken any thing from the business, and this upset her and she told her son about it. It was common ground that the victim telephoned the appellant's mother after the incident. He said that he told her that he had made a report to the police about her son. She said she could remember nothing of that.

5. The magistrate found the victim and the prosecution witness to be credible. There is nothing before me in the papers that makes me doubt that assessment. The magistrate had the advantage of seeing and hearing both witnesses. The appellant today has not been able to put anything before me in argument which makes me doubt that assessment. But leaving aside those considerations about hearing and seeing the witnesses the papers demonstrated that the sworn and tested evidence, which contained nothing inherently self destructive, was all one way and the victim's account received the support of someone who was a stranger to the conflict between the victim and the appellant. The evidence of the mother was peripheral and in any event rightly attracted a sceptical response from the magistrate who took the view that she deliberately sought to minimize the complaint that the victim made to her concerning her son's conduct.

6. Thus, leaving the mother's evidence aside, there was only the unsworn and untested account given by the defendant in interview to weigh against the credible and supported evidence of the victim. It was no wonder that the magistrate convicted him.

7. In her thorough and careful Statement of Findings the magistrate applied all the right tests; dealt with the discrepancies in the prosecution's evidence; gave herself the right directions; looked at the law and considered "wild and whirling words" and demonstrated a sensible and realistic grasp of the issues. My view from the papers coincides entirely with hers. Accordingly I confirm her orders.