HKSAR v. SHEK TSAN YIN

HCMA 683/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL No. 683 of 2004

(on Appeal from STCC No. 367/2004)

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REASONS   FOR   JUDGMENT

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Introduction

1.  On 28 September 2004, I dismissed the Appellant, Shek Tsan Yin’s appeal against conviction.  I now set out the reasons for my decision.

Background

2.  The Appellant was one of three young men tried on various dates between April and June 2004, before Mrs. Eda Loh, Magistrate, at Shatin Magistrates Court on three separate charges of assault occasioning actual bodily harm (AOABH), contrary to section 39 of the Offences Against the Person Ordinance, Cap 212, in which all three were named as the joint defendants.  He also faced a sole charge of claiming to be member of triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151.

3.  He was convicted of one of the AOABH charges, but acquitted of the other two.  He was also convicted of the claiming to be a member of triad society charge.  On 2 June 2004, he was placed on 18 months’ probation for these offences and has to reside at Shatin Boys’ Home for the first nine months of that probation period.  He does not appeal against that sentence.

Prosecution Case

4.  The prosecution case was that on 14 January 2004, at Man Lai Road, Shatin, near to the Caltex Petrol Station, a young man called Chan Chiu Lui (PW1) was with his friends Chum Kin On (PW2) and Li Ka Chuen (PW3) when a group of over ten young men approached them from behind.  Three of these men carried water pipes, which they held at the victims’ necks to stop them running away.  Members of the group of young men then assaulted the three victims.  Each of them sustained minor injuries as a result.  Before the group of young men left the scene of the attack, the Appellant said, “We are Shing Wo”, a reference to the Wo Shing Wo Triad Society.  The assault on each of the three young men gave rise to the three AOABH charges the Appellant and his co-accused faced.  His conviction was in respect of the assault on PW3.

Defence Case

5.  The Appellant chose not to give evidence; neither did his co-accused.  As put in cross-examination of the three victims, the Appellant’s case was that he was just a passer-by and did not participate in attacking them.

Grounds of appeal

6.  In the grounds of appeal it is contended that when the Magistrate convicted the Appellant of the AOABH charge against PW3, she failed to appreciate that this verdict was inconsistent with her acquittal of him on the similar charges in respect of the assaults on PW1 and PW2.  It is further alleged that she failed to explain why PW3’s identification of the Appellant accorded with the guidelines in R v. Turnbull & Another [1977] 1 QB 224, whilst his identification of D3 did not.

Discussion

7.  There is nothing in either ground of appeal.

8.  In respect of the first ground, PW1 was the victim named in the first AOABH charge.  The Magistrate was not impressed with his evidence and considered that she could not rely on it without some support.  PW2 and PW3 could not provide that support.  They could only say how they themselves were attacked and could give no details of how PW1 was assaulted, or who assaulted him.   Given the state of the evidence the Magistrate was bound to acquit both the Appellant and his co-accused of the AOABH charge laid in respect of the assault on PW1.

9.  The victim named in the second AOABH charge was PW2.  The Magistrate was impressed with his evidence and convicted the third defendant of this charge relying solely on PW2’s evidence.   He had not said that the Appellant had assaulted him.  Given the state of the evidence the Magistrate was bound to acquit the Appellant on this charge.

10.  In respect of the second ground, in her Statement of Findings the Magistrate gave these reasons for her acceptance of PW3’s identification of the Appellant, but not his identification of D3:

“[PW2] knew that D3 was a schoolmate, had seen D3 before, and had told [PW1] what was D3’s name. Further, his description of D3 wearing a white coat and white hat was consistent with Chan’s description.  [PW3] in his witness statement described D3 as wearing black T-shirt and black cap, however, Li did not know D3 and did not recall how he saw D3. I am satisfied that [PW2’s] identification of D3 was in accordance with Turnbull’s case.

Charge 3 - D1Assault occasioning actual bodily harm on [PW3]

When [PW3] was hit from behind, he turned and saw D1 hitting him.  [PW3] had seen D1 before that day, they were in the same school, he knew which form D1 was in, although he was not sure which class.  [PW3] had identified the three defendants at an identification parade, and his identification of D1 accords with Turnbull’s guidelines, whilst his identification of D3 did not. I gave the benefit of doubt to D3 and he was acquitted on this charge.”

11.  The state of the evidence was that when PW3 was hit from behind, he had turned round and seen that D1 was one of those who were hitting him.  PW3 had seen the Appellant before the day of the attack.  He knew that the Appellant and he attended the same school, and he knew what form level the Appellant was in, although he did not know which class in that level he attended.  PW3 had also identified the Appellant before trial at an identification parade.  In short he knew the Appellant and he had recognised him.  By contrast, PW3 did not know D3 at all.  In his witness statement, he had given a description of the Appellant’s clothing that differed from the descriptions given by PW1 and PW2.  PW3 had also said in re-examination by the prosecutor that he could not recall if D3 had been involved in hitting him. Given the state of the evidence, there was certainly a sufficient basis for the magistrate to accept PW3’s identification of D1 but reject his identification of D3.

12.  In bringing and arguing this appeal those advising the Appellant appear to have forgotten that, as the trier of fact, the Magistrate was entitled, just as much as a jury is, to decide whether or not a witness’s evidence should be accepted, or rejected, in whole or in part.  The fact that the Magistrate examined each of the three prosecution witness’s evidence in this case and decided what parts she could accept and what parts she could not, demonstrates the degree of caution she exercised in coming to her verdicts. 

Decision

13.  The appeal was without merit and had to be dismissed.