R. v. SO YAN CHE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.445 OF 1996

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D E C I S I O N

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1. The appellant was convicted after trial of robbery. He was put on probation for 18 months. He now appeals against conviction.

2. The prosecution's case is this. The alleged victim was a secondary student. On the day in question, he was walking with his female classmate. Another female friend came and told him there were people who would come to beat him up. Soon after this, there were five persons coming after him and so he ran to an alley. However, they caught up with him and one of the persons asked PW1 to go a nearby playground. So they went together to that place. While they were there, the appellant (who was the 2nd defendant in the court below) and two others (who were the 1st and 3rd defendants) violently beat up PW1. The 1st defendant then asked him for money. They then hit him many times, pulled his head to a nearby hose and kicked his head with their fists. The appellant also punched him on the head and cheek, pushed his head onto a table tennis table and kicked his penis. The 3rd defendant asked him for money and snatched his wallet away from him. The 1st defendant then held the wallet and took away the things inside. He then threw it onto the ground and said that if PW1 could not pick up the wallet in 10 seconds, he would be beaten up. While PW1 was trying retrieve his wallet, the appellant and the 1st defendant started to beat him again with the appellant kicking his head. The appellant then asked him if he had any ATM card and asked for $5,400. When PW1 said that he did not have such card, the appellant asked PW1's girlfriend to repay this amount. Upon the girl agreeing to do so, the appellant then said he would expect the money to be paid in the following week. The group then left saying that they were going to eat. PW1 later paged his father and told him what happened. His father was a police officer. Together with his father and the two female friends, he went to one restaurant after another and finally saw the five who had earlier on taken part in the incident. The matter was reported to the police and the five persons were subsequently taken to the police station. PW1 was also examined by a doctor who found that he had suffered abrasions and bruising over the face, head and cheeks. At the trial, the appellant and the other defendants did not give or call any evidence.

3. The learned Magistrate assessed the evidence. He bore in mind the discrepancies between the witnesses for the prosecution, PW1 and PW2. He also took into consideration the evidence of PW4, the other girlfriend who was present, who did not incriminate one of the defendants. He rejected her evidence. The Magistrate took into account the medical evidence. He was satisfied beyond reasonable doubt that the appellant had gone with the others after PW1 because of an earlier dispute, that he went along with PW1 and the others to the playground, that the payment of money was mentioned, and that both before and after the taking of the money from the wallet of the PW1 the appellant had assaulted PW1. The learned Magistrate also came to the conclusion that the appellant was at the playground as part of a joint enterprise in which money played an important part as well as violence. He therefore convicted the appellant of robbery. The other defendants were also convicted.

4. In the first ground of appeal, counsel for the appellant complained that the learned Magistrate was wrong in trying to attribute the reasons for the discrepancies in the evidence of the witnesses to the "low level crime investigations" in the present case. It was said that he was wrong in speculation because there was no evidence as to the quality or experience of the investigating officers and that PW1's father who brought the matter to the police was himself a police officer.

5. It is not disputed that there were some discrepancies in the evidence : between PW1's evidence in court and his statement to the police; between PW2's evidence in court and her statement to the police and finally between the evidence of PW1 and PW2. It is, in my view, unfortunate that the learned Magistrate referred to the "low level crime investigation" in the present case. However, this is a case which involved several secondary students. The witnesses were all teenagers. The learned Magistrate regarded this incident as students trying to settle past grudges. This can be reflected in the sentence which he passed on the appellant after commission of what is normally a very serious crime - robbery. But what I think is more important is that the incident apparently occurred for over a period of 40 or more minutes. It is therefore quite understandable that investigation officers did not go into details of everything which was done and every word which was said during this period. I think the learned Magistrate was quite correct to take note of the fact that in such investigation, the officers as well as the witnesses would not go into every minute detail but would concentrate on the main events which occurred and main words which were said. He was entitled to take into consideration the circumstances of this case and approach the evidence of the witnesses and the discrepancies in such light.

6. This leads me to the second ground of appeal and that is : the learned Magistrate had failed to take note of the discrepancies in the prosecution evidence and the effect of such discrepancies on the credibility of the prosecution witnesses, particularly PW1 and PW2. Counsel pointed out that there were 10 major discrepancies in the evidence of PW1 and eight such discrepancies for PW2. He also submitted that these discrepancies existed not only between the witness's evidence in court and his or her witness statement to the police, they also appeared to be quite similar - the discrepancies in PW1's evidence as contrasted with his own statement are similar to the discrepancies as between PW2's evidence and her statement. He said that their discrepancies were additional to the statements and not just variations. He further submitted that these discrepancies were compounded by the fact that the witnesses had, in breach of the directions of the learned Magistrate, had lunch together. He said that it would be wrong for the Magistrate to conclude that the witnesses had not been discussed over lunch but should have evaluated the evidence of PW1 and PW2 in the light of what happened.

7. I think it is quite clear that the learned Magistrate was quite aware of the discrepancies in the evidence of the prosecution witnesses. But the main and essential part of the evidence is quite clear. PW1 was surrounded by the appellant and others. They assaulted him. The 1st defendant demanded for money and took PW1's wallet. After having taken the money from the wallet, it was thrown onto the ground for PW1 to pick up. PW1 was then further assaulted by these persons including the appellant. He was required to pay money in the sum of $5,400. PW2 was asked to get the money to repay. Both PW1 and PW2 were consistent as to these events and their sequence. PW1's injuries were supported by the medical evidence. These are the facts which went to support the charge of robbery and in my view, quite capable of doing so. I do not propose to set out each and every discrepancy. They related to the details of the assaults, for example, whether the appellant had pushed PW1's head against a table tennis table, whether the appellant had also pulled PW1 to a nearby hose, whether PW1 was kicked in his penis, whether the appellant had picked up the bin in question to throw it at PW1, and whether there was any threat to use a weapon. There are also discrepancies with regard to how the demands for money were made, the exact words used in such demands, who said what and whether all or any one or more of them had made those demands. I think the learned Magistrate was quite entitled to take note of the fact that all these occurred in 40 minutes and that when the prosecution witnesses gave their statements to the police, they had not given great details of how the assault had happened. Further, I think the learned Magistrate was also entitled to bear in mind, as he did, that the incident took place some eight months before the trial, that the events occurred in a rapidly moving scenario and that even honest witnesses would remember things differently. In my view, these were discrepancies going to details of the main events which took place. They were not discrepancies which would cast doubt on the fact that there were indeed assaults by the appellant and the others on PW1 and demands by them for money. These discrepancies had always been in the mind of the learned Magistrate when he assessed the evidence before coming to a conclusion.

8. Reference was made to PW3, the father of PW1, who was a police officer. He accompanied his son to make a report to the police. But he was not the investigating officer. I see no reason why he should take part in or interfere with the investigations. It would be wrong for him to do so. There is no suggestion that he did. I see no connection between his work as a police officer and his role as the father of complainant at the material time. I do not think there is anything in this point.

9. With regard to the possibility of PW1 and PW2 discussing about the evidence in this case, it is true that they had disobeyed the court's direction that they should not have lunch together. The learned Magistrate did make enquiries into the circumstances. The witnesses were cross-examined as to whether they had discussed about this case during lunch. They denied having done that. It was alleged that they were seen by the defendants and/or their lawyers of having had the opportunity to have lunch together and talk about the evidence. However, none of these so-called witnesses of the lunch between PW1 and PW2 gave evidence. In these circumstances, I think the learned Magistrate was quite entitled to be "satisfied on the evidence about that incident, that however much PW1 and PW2 had disobeyed (his) instructions, and however misguided PW3 had been, that he had acted as an effective chaperone at that time - and that the case had not been discussed".

10. At the end of the day, it is a question of the credibility of the prosecution witnesses. The learned Magistrate was in the best position having heard the evidence of his witnesses and watched them in a witness box to decide this issue. He was alerted to the discrepancies in their evidence. He was also aware of the similarities of the criticisms of PW1 and PW2 and that could only mean that he was made aware of the similarities of the discrepancies between the two. He resolved these matters conscientiously and correctly. In these circumstances, I do not think that falling short of showing that the Magistrate had adopted a wrong approach, the appellant would be able to convince the appellate court to interfere with such assessment and evaluation of the evidence.

11. The final ground of appeal was that the learned Magistrate was wrong in that he failed to consider that the appellant might have simply assaulted PW1 and that the other defendants had gone on a frolic of their own in taking the money. It was argued that in that case, the appellant was not guilty of robbery but simply assaulted.

12. I do not think this ground of appeal can be sustained. It is quite clear from the evidence of both PW1 and PW2 that the appellant had assaulted PW1 with the others. It is also quite clear that when the 1st defendant demanded money from the PW1, the appellant was present. After the demand, the appellant punched the PW1 again. He was present when the victim's wallet was snatched. He was present when the 1st defendant took away the contents. It seems that the appellant further assaulted the victim after all these. In fact he also took part in the "negotiation" at the end with PW1's girlfriend as to how she should pay. Having looked at the evidence, if the learned Magistrate accepted them as he did in this case, it is quite clear that the appellant was part and partial of the whole incident, not only of the assault but also the demand for money with violence.

13. Having considered the evidence given by the witnesses as shown in the transcript of proceedings, I have come to the same conclusion as the learned Magistrate. There is ample evidence to support the conviction which is in no way unsafe or unsatisfactory. For the reasons which I have given, there is no merit in this appeal. It is therefore dismissed.