R. v. CHUI SIU CHUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.303 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of assault occasioning actual bodily harm and claiming to be a member of a triad society before a magistrate sitting in San Po Kong. He now appealed against conviction.

2. The grounds of appeal are :-

1. The magistrate erred in holding the injuries disclosed by the medical report of PW1 were consistent with his allegations as to how he was assaulted.

2. The magistrate erred in accepting the explanation given by PW1 on the inconsistencies between his evidence in court and his statement to the police.

3. The magistrate erred in failing to give sufficient consideration to the fact that there had been bad blood between the Appellant and PW1 who might have a motive to lie.

4. The magistrate erred in accepting PW2's explanation on the inconsistencies between his evidence in court and his statement to the police.

5. In view of the above, the conviction was unsafe and satisfactory.

3. The prosecution evidence was this. In the early hours of 21st October 1995, PW1 was sitting on a bench chatting with PW2. The Appellant appeared with several other persons and accused PW1 of staring at them. They went away but only to come back after a few minutes. The Appellant picked up an iron grill and threw at PW1. This caused him injury at his back. The Appellant then drew near and punched PW1 twice on the left side of his face and once on his right eye. The Appellant then swore at PW1 and declared he was a member of Hung Fat Shun which, it was not disputed, was a triad society. This was witnessed by PW2. The medical evidence which was not in dispute was that the PW1 suffered abrasions on his back and bruises over the right peri orbital region. No injury was detected on the left face. The Appellant's evidence was that he was alone on his way home and PW1 together with others approached him and accused him of staring at them and pushed him. He did not want any trouble. He pushed PW1 away and left. He told the magistrate he had some trouble with PW1 before and he believed PW1 was angry with him.

4. The magistrate found the medical evidence consistent with the evidence of PW1 that he was assaulted on his right eye and back. This finding was consistent of PW1's allegation that he was hit on his right eye and his back and the fact that no other injury was recorded does not necessarily mean that PW1 had not been punched on his left face. It all depends on the force of the punch but there is no evidence medical or otherwise to that effect. The magistrate in his findings referred to the inconsistencies between the evidence of the two prosecution witnesses and their previous police statements. He accepted their explanation for the inconsistencies which he was entitled to do. The magistrate had in his findings referred to the bad blood between the Appellant and PW1. He had also borne in mind that both PW1 and PW2 were former triad members when he came to assess their credibility. He had plenty of opportunity to observe the witnesses. In paragraph 7 of his statement of findings, he said this :

"This was a case which turned mainly though not exclusively on the credibility of witnesses. As expected, the Duty lawyer who represented the Appellant was most energetic in the exploration of details whilst she was engaged in the cross-examination of PW1 and PW2. She also made extensive use of the witness statements given by both witnesses with a view to contradict their evidence. By keeping the witnesses in the box for a fair amount of time, she had also assisted the court by giving me an ample opportunity to watch carefully how the witnesses had reacted to and disposed of the questions asked by her."

5. The magistrate had carefully observed the witnesses and he was entitled to come to the conclusion he believed the prosecution witnesses and reject the evidence of the Appellant. The Appellant was rightly convicted and the appeal against conviction is dismissed.