HKSAR v. YAN CHEUK HONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.72 OF 1998

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J U D G M E N T

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The Appeal

1. The Appellant was convicted of two offences of assault occasioning actual bodily harm. The Appellant was 17 years of age and was put on probation for 12 months, he now appeals against the conviction.

2. The facts of the case are these : PW1, a taxi-driver, got into a dispute with a person outside a restaurant in the morning of 8th September 1997. His telephone was knocked down by that person. He then entered the restaurant and after a while he was called by the person who knocked down his telephone to go outside the restaurant. That person asked PW1 what he wanted. PW1 said "Lets forget it" and returned to his seat. Then three persons dashed into the restaurant and assaulted PW1 and PW2, another taxi-driver who came into the restaurant with PW1.

3. Four witnesses were called by the prosecution, namely PW1 and 2; PW3, a waiter in the restaurant and PW4, another taxi driver who was having meal at the restaurant. PW1, 2 and 3 were not able to identify any of the assailants. PW4 identified the Appellant as one of the three persons who attacked PW1.

Turnbull guideline

4. Mr Grounds, who appeared for the Appellant, argued that the verdict was unsafe and unsatisfactory because the Magistrate had not followed the principle in Turnbull in that the attack only lasted for a very short period of time. PW1 said that it lasted for a few seconds : five to ten seconds; PW2 said it lasted for three, four, five seconds and PW4 said it lasted for a few seconds. Mr Grounds submitted that this was a fleeting glance situation during which the assailants dashed in and started the attack. The situation was chaotic and in the absence of supporting evidence, he submitted that the Magistrate should stop the case. He also submitted that the Magistrate failed to properly evaluate the evidence relating to the identification of the Appellant.

PW4's observation

5. What happened at the restaurant was that before the attack PW4 had observed that the Appellant came into the restaurant and talked to PW1. The Appellant then asked PW1 to go outside. When PW1 refused to go outside, he turned around and returned to his seat, the Appellant dashed in. This was followed by two other persons who attacked PW1. PW4 said that the conversation between PW1 and the Appellant lasted about one to two minutes.

6. It was not disputed that the attack lasted for a very short time indeed. Had the only event that took place in the restaurant been the sudden rushing in of three assailants attacking PW1 and 2, the situation would certainly fall into a fleeting glance situation. However, the events that occurred that day unfold from the time PW1 was called to the entrance by the Appellant and had a discussion before things turned ugly and violence was used. This is obviously not a fleeting glance situation.

Magistrate's approach proper

7. In my view, the Magistrate had clearly followed the principle in Turnbull and reminded himself of the danger of the mistakes that an honest witness may make on issue of identity. In analysing the evidence of PW4, the Magistrate referred to the time that PW4 had kept the Appellant under observation, the distance between them, the time of the day in which the attack took place and the Appellant was positively identified in a properly held identification parade. All these are clearly relevant considerations in assessing the reliability of the identification evidence. The approach taken by the Magistrate cannot be faulted.

Defence's case

8. It is argued that the Magistrate did not deal with the Defence case that was put to PW4 in that he was mistaken in respect of the identification. It was submitted that the Appellant did not dispute that he had talked to PW1 and the clear case was that PW4 mistakenly identified the Appellant as an assailant because PW4 had seen him speaking to PW1 just prior to the assault. At p.39 of the transcript, it was recorded that in the cross-examination of PW4:

"Q: You see I suggest to you that you are mistaken in respect of D1.

A: Disagree.

Q: I suggest that all you saw D1 do was talk to 'Ko Lo' (i.e. PW1).

A: Agree.

Q: Thank you."

Had the matter rested there, the argument may have some substance, but at p.40 of the transcript, it was clearly revealed that the Appellant was seen again after the conversation:

"Q: Right, you first saw D1 during the conversation of D1 with 'Ko Lo', right?

A: Yes.

Q: Did you see D1 again after the conversation?

A: He then dashed in.

Q: And then what did he do after dashing in?

A: He immediately picked up a folding stool.

Q: And then?

A: And he then hit 'Ko Lo' and the table.

Q: Right."

9. The Magistrate recognised that the attack lasted for a short time but all the witnesses gave a more or less consistent account of how the attack took place. He relied on the evidence of PW4 who identified the Appellant as one of the attackers. I cannot see how his finding could be faulted.

Other matters

10. There are other matters raised in the Grounds of Appeal that for completeness I should now deal with. While PW4 said that the conversation between PW1 and the Appellant lasted for one to two minutes, PW2 said that they spoke for around two to three sentences. From the transcript, it is clear that when asked how long these two had been talking, PW2 said that he did not pay attention and then he said around two to three sentences. He had qualified his evidence by saying that he was not paying attention. So what PW2 said on the length of the conversation was not something that would cast doubt on the evidence of PW4.

11. The Appellant also submitted that the evidence of PW1 showed that there was doubt that the Appellant was an assailant. At p.15 of the transcript, PW1 said that he had no idea what were the assailants holding in their hands in the attack. When asked why he didn't have any idea he said these:

"I haven't seen them before. When the door was opened they slipped in. I did not see them, and then I tried to dodge."

It is indeed odd why he would give such an answer because earlier he had identified the one who had knocked down his telephone as the one who talked to him before the attack. But PW1 did say that he saw in the police station the person who knocked down his telephone and he was one of the persons who later entered the restaurant and attacked him. In my view, the evidence of PW1 should not cast doubt on PW4's identification of the Appellant.

12. The Magistrate recognised PW4 was an impartial witness. He was approached by the police a few days after the attack because PW3 told the police that PW4 also witnessed the attack and at an identification parade held on 26th September, PW4 identified the Appellant.

13. PW4 readily accepted that there were rumors and gossips among the 'kai fongs' that the attackers were the three brothers of a nearby restaurant but he did not know them before. There is no contrary evidence on this point.

14. In PW4's evidence he said that the Appellant used a folding chair while the two assailants used metal objects like water pipes in the assault. In his statement to the police, he said that the attackers came in with iron bars. However, in his statement he also mentioned that the boy at the front took a folding chair. He said that the CID who took the statement must have misunderstood what he said. PW4 was cross-examined on his statement, he had given an explanation on the matter and the Magistrate accepted him.

Conclusion

15. I am satisfied that the verdict was properly obtained and the appeal must be dismissed.