HKSAR v. WONG CHO FAI AND OTHERS

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 743/97

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J U D G M E N T

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1. The appellants were jointly charged with one charge of wounding. In addition, the fourth appellant who was D4 was charged with assaulting a police officer. At the conclusion of the prosecution case, the magistrate amended the wounding charge to a charge of assault occasioning actual bodily harm. She also found D4 to have no case to answer on that charge and acquitted him.

2. The trial continued and at the end of it the magistrate convicted the first three appellants, being D1, D2 and D3, of the charge of assault occasioning bodily harm and the fourth appellant, D4 of assaulting a police officer. She sentenced D1 and D3 to 3 months imprisonment and D2 also to 3 months imprisonment but suspended for 12 months. D4 was fined $3,000. All appeal against their convictions and D3 also appeals against his sentence.

3. The prosecution case was that PW1 purchased three CDs from D1's shop for $100 in the afternoon of 3 April 1997 and when he returned to his office he found there were no CDs inside the boxes. He returned to the shop to complain but was accused that he had stolen the boxes. He was assaulted by at least two persons and one of them hit him with a drawer on his head as a result of which he sustained a laceration injury. These facts were not in dispute. The only issue put forward by the defence was that none of the appellants assaulted PW1 and the assault was carried out by two customers who were in the shop when PW1 entered and made his complaint.

4. The principal ground of appeal advanced by D1, D2 and D3 was therefore one of identification. Both Mr. McGowan for D1 and Mr. Bey for D3 contended that the evidence of identification was so weak and inadequate that rendered the convictions unsafe and unsatisfactory. They submitted that the appeal must be allowed on this ground. In addition, Mr. Bey submitted that it was wrong for the magistrate to intervene in the course of the prosecution's attempt to lead evidence from PW1 of D3 and to permit "dock identification" at that stage without any ground having been laid for this purpose.

5. All the appellants gave evidence and D3 and D4 also called an alibi witness, DW2 on the assault occasioning actual bodily harm charge. D1 said that he was behind the counter in the shop clearing up. He did not try to stop the assault or call the police. He said that at no stage the other appellants were in the shop. It suffices to say that the magistrate rejected the evidence of all the appellants. On the issue of identification, she was satisfied that PW1 had good reason to recognise D1, , having seen him at lunch time when he bought the CDs from him and saw him again that same evening just before 7 p.m. when he returned to make the complaint. It was D1 whom PW1 saw and complained about the empty boxes. In relation to D3, PW1 was adamant that D3 was in the shop when he was there to make the complaint and after PW1 was hit by something hard from behind he turned and saw that D3 was holding a drawer. The evidence against D2 and D4 was somewhat different. They came into the shop after the assault had started and asked the customers to leave. The magistrate acquitted D4 on this charge on a no case to answer at the conclusion of the prosecution case. Her reason for so doing was that PW1 only saw D4 come into the shop during the assault and there was no other opportunity of identification. In the case of D2, she said that PW1 was aware of having seen D2 selling CDs outside the shop and there was therefore an element of recognition in the identification and the fact that D2 was working at the shop on that day. The magistrate did not consider that the loss of PW1's glasses affected his identification of D2.

6. Towards the end of her statement of findings under the heading "Findings of Fact" the magistrate found :-

"5. During this assault the 2nd Appellant and another entered the shop, the customers were asked to leave, the shop door was closed and the assault continued. By acting in this manner the 2nd Appellant and other person clearly became involved in the assault whether or not they actually inflicted any blows. It became a joint enterprise."

7. The magistrate could only convict on the basis of a joint enterprise if she was sure that D2 was one of the two persons who entered the shop, asked the customers to leave and then closed the shop while the assault continued. But when PW1 was asked painstakingly by the magistrate about this aspect all PW1 could say was that he supposed it was D2, indicating a degree of uncertainty. This part of the examination of PW1 by the magistrate, rather a lengthy one, can be found at pp.25, 26 and 27 of the transcript. At p.27, line B - COURT: ... "I suppose it was D2, but not sure."

8. If PW1 was not sure that D2 was one of the two persons who entered the shop, asked the customers to leave and closed the door, it is even less likely that he could be sure that D2 was at the same time assaulting him. There must be a doubt which renders the identification of D2 unsatisfactory. His appeal is therefore allowed; the conviction quashed and the sentence set aside.

9. The appeal of D1 and D3 against conviction is dismissed. The appeal of D3 against sentence is also dismissed. I agree with the magistrate that "this was a very nasty attack on an innocent shopper who had gone into a shop to make a complaint. A customer should be able to do that in safety."

10. The case of D4 is entirely different, having been acquitted of the charge of assault occasioning actual bodily harm. The magistrate accepted the evidence of the police constable and rejected the evidence of D4. She was sure that D4 had pushed the constable to cause him to fall and not that the constable slipped and fell down accidentally. There is absolutely no merit in his appeal, which is dismissed.