HKSAR v. MAN YUNG BING AND OTHERS

HCMA 605/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 605 OF 2001

(ON APPEAL FROM FLC 2899/2000)

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J U D G M E N T

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1. The three Appellants in this case were charged with 2 charges of assault occasioning actual bodily harm contrary to common law and punishable under s.39 of the Offences Against Persons Ordinance Cap. 212, Laws of Hong Kong.

2. To these 2 charges, three Defendants had pleaded not guilty but were convicted after trial. The three Appellants today appeal against their conviction.

3. The facts in this case were that at the material time, when the 3rd Defendant had walked past or near to the home of the PW2, there was a quarrel. When PW2 saw the 2nd Defendant punch PW1, he went up to ward off the blow and he himself was punched by the 1st and 2nd Defendants. Subsequently all three Defendants then made a consistent attack on him resulting in some injuries on his face and lips. Subsequently, PW1 was pulled into the house. The police arrived subsequently.

4. PW1's evidence was that he was watching television inside the house, he heard the quarrel between PW2 and the 3rd Defendant. He went out and said he was punched resulting in injuries both on his face and on his left hand. Apart from these first two prosecution witnesses, PW1 and PW2, who were brothers, the prosecution has called three other witnesses who were neighbours of PW1 and PW2. They basically gave an account of the attack by the 1st, 2nd and 3rd Defendants on the first two prosecution witnesses. Apart from the prosecution witnesses evidence, medical reports of PW1 and PW2 were produced.

5. Both the 1st and 2nd Defendants did not give evidence, the 3rd Defendant gave evidence and he gave an account of bad blood between the Defendants and the prosecution witnesses. The dispute was originally over a piece of land and eventually resulted in a libel action brought by the Defendants against the prosecution witnesses, that is PW1-5. The 3rd Defendant said that, on that night in question, when he was walking past the 2nd and 3rd prosecution witnesses' home, a quarrel arose. PW1 attacked him, then he stepped back and then he saw the 1st and 2nd Defendants come out and pushed PW1 and PW2 away and told the two first prosecution witnesses to stop hitting. The 3rd Defendant denied that the 1st and 2nd Defendants had attacked PW1 and PW2. Then subsequently, PW1 was pulled into the house. The 3rd Defendant also mentioned that he had some problems with his right hand as it had been burned when he was a child.

6. It is clear from the learned Magistrate's statement of findings that he did not accept the defence account as to how the fight arose and thus convicted the three Defendants of the two charges on the strength of the evidence of the prosecution witnesses. The appeal this morning is based on only one point. Mr Cheng, leading counsel for the Appellants, put it very succinctly, that the learned Magistrate accepted PW3-5 as independent witnesses and therefore used their evidence unhesitatingly to bolster the evidence of PW1 and PW2 and ultimately concluded that the three Appellants were guilty.

7. It is clear from the statement of findings that the learned Magistrate was aware of this unhappy history as he not only mentioned it in his evaluation but also subsequently in his conclusion. But nowhere in his statement of findings does it show that he regarded this unhappy history as affording a motive for the 3rd to 5th witnesses to frame up a case against the Defendants or to be impartial. The only place where he actually mentions this is at page 17 of his statement of findings in para.2 where he said that:

"this unhappy history, in my view is of no assistance either to the prosecution or the defence."

Therefore the learned Magistrate treated such evidence as neutral. It is clear from the citation in Archbold at para.4-4040 that Mr Cheng cited that there three witnesses, PW3-5 could be treated as witnesses tainted by improper motive because it is expressly mentioned that the court should consider whether witnesses tainted by improper motives extend to motives such as jealousy, spite, setting of an old score or financial advantage.

8. Mr Cheung, who appears on behalf of the Respondent, argued that because the learned Magistrate was aware of the unhappy history. Being an experienced and professional judge sitting alone, he would have told himself to be cautious about their evidence. He did not need to write out that he had warned himself to be cautious about their evidence.

9. I beg to differ. It is clear in the statement of findings that the learned Magistrate had all along considered PW3-5 as independent witnesses. An independent witness, giving this term in general meaning, is that he is meant to be independent, impartial with no interest in the outcome of the present proceedings. Unfortunately, the evidence disclosed that the Defendants in this case had started a libel action against the prosecution witnesses PW1-PW5. Mr Cheng had pointed out that we do not know whether this libel action is still pending or what the outcome was. So it is very clear that PW3 to PW5, although they were not involved in this fight, could certainly be considered to be witnesses who may be tainted by improper motive. Therefore it was crucial in this type of case where credibility is the main issue where the evidence between the prosecution witnesses and the defence witness is so at odds with each other that the learned Magistrate should have warned himself about the possible improper motives of PW3 to PW5. Because he failed to do so, I am left with a lurking doubt as to the propriety of the conviction of the three Defendants particularly when the defence has raised the issue of self-defence and the learned Magistrate in rejecting outright that defence had based one of his reasons on the fact that PW3 to PW5, being independent witnesses, had confirmed that neither PW1 nor PW2 had "physically acted viciously".

10. In those circumstances I consider that the conviction is unsafe and unsatisfactory and therefore the convictions are quashed.