HKSAR v. WONG CHI ON

HCMA 244/2019

[2020] HKCFI 2617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 244 OF 2019

(ON APPEAL FROM ESCC NO 2687 OF 2018)

________________________

________________

______________

J U D G M E N T

______________

1.  The appellant was convicted after trial before a magistrate of one charge of claiming to be a member of a triad society contrary to section 20(2) of the Societies Ordinance, Cap 151. He was sentenced to 9 weeks’ imprisonment. He appeals against conviction only. He was granted bail pending appeal by the magistrate.

2.  Both here and below, the appellant was represented by Mr Oliver Davies of counsel.

Particulars of Offence

3.  The particulars of offence were that the appellant on 25 June 2018, inside Bar Pacific, G/F, 238-242 Aberdeen Main Road, Aberdeen, Hong Kong Island, in Hong Kong, claimed to be a member of a triad society, namely Wo Hop To.

Perfected Ground of Appeal

4.  There is only one ground of appeal which is: the learned magistrate failed to give adequate reasons for finding that she could rely on the evidence of PW1 regarding the alleged triad claims, when it was demonstrated that PW1’s evidence in other material aspects was incorrect; those aspects included:-

(1)     The appellant brought the chicken wings into the bar;

(2)     PW1 approached the appellant’s table and spoke to [the group]; and

(3)     The appellant and others stood up and shouted and pointed at PW1.

Prosecution Case

5.  The magistrate summarized the prosecution case in the following way:

“PW1

3. PW1 was the branch manager of Bar Pacific. According to PW1, on 25 June 2018, around 10pm, 3 males and a female came into the bar. She led them to be seated at table number 9, near the door. She recognized the female to be her ex colleague Kit Mui and another male as a regular customer of the bar, Kin Hong.

4. After almost an hour, PW1 said the customers at that table asked if their chicken wings were ready. PW1 said she then became aware that D1 had brought in raw chicken wings and had asked PW1’s colleague, the 2nd Prosecution Witness (“PW2”) to fry those chicken wings. Hence PW1 said she told the customers at table 9 that their company policy was they could not cook raw food. PW1 said at the time she had gone over to their table to tell them this. The customers were unhappy and threw a tantrum. Afterwards, PW1 returned to inside the bar counter and D1 then approached the bar counter and told PW1 to be careful and don’t come back to this bar and also said “Do you know my name, I am Wo Hop To B Gor, don’t you know me?” PW1 said she knew Wo Hop To was a triad society.

5. PW1 said at the time they were very close, lighting was sufficient, the bar was not too noisy, and she felt afraid after hearing D1’s utterance. PW1 said she had never seen D1 before this date. At the time, they were face to face for several seconds. PW1 said she was scared so did not pay any attention to D1’s emotional status at the time. PW1 said then one of the customers at table 9 lost his temper and threw a chair in the bar. PW1 asked her colleague to report the matter to the police. The man who threw the chair and D1 both continued to yell in foul language loudly. PW1 said she stayed by the bar counter as she was afraid. A few minutes later, the police arrived, PW1 saw D1 near the door of the bar and pointed him out to the police. At the time there were street lights, lights at the door, lights of signboards, PW1 observed him for about 10 odd seconds, and was standing 2 metres away from him. Only police officers were next to them and no one else.

6. The CCTV recording of the relevant time and date, P.3 was shown to PW1 by the prosecution. On Camera 4, at 00.14:24, of 26 June 2018, PW1 confirmed the recording showed at the time she was working at the bar counter, and D1 was standing outside the bar counter. At the time, D1 was saying “I am Wo Hop To B Gor don’t you know me. Be careful don’t come back to this shop again”.

PW2

7. PW2 was an employee at Bar Pacific. According to PW2, D1 went into the bar around 11:30pm that evening, with a group of people. One of them in the group, a male called Kin Hong, gave PW2 some money and asked him to buy some chicken wings from Wellcome.  PW2 bought the wings and came back to the bar.  PW2 said he took the pack of chicken wings to the kitchen and put them into the fryer and went back outside to continue serving other customers.  PW1 had subsequently gone into the kitchen and saw the chicken wings in the fryer and went to tell PW2 these chicken wings could not be served and asked PW2 to pay them back.  PW2 said at the time they were inside the kitchen and the chicken wings had been in the fryer for around 2-3 minutes.   PW2 said he then gave money back to Kin Hong, who was at table 9.  PW2 did not hear any triad referenced utterances in the bar during that night, nor did he hear D1 shout or point or act in an aggressive manner.”

Defence Case

6.  Defence elected not to call any witnesses.

Magistrate’s Reasons for Accepting PW1’s Evidence

7.  The magistrate analyzed the evidence of PW1 in the following way:

“19. I have carefully considered the evidence of PW1 and the attack on her credibility by the defence.   It is clear that PW1 had been mistaken in the details of how the chicken wings were brought into the bar.  However, she is ultimately clear in explaining why she had said time and again, that D1 brought the chicken wings into the bar:  because from her conversations with PW2, PW2 had told her the chicken wings belonged to table 9, “B Gor’s”, and D1 was sitting at table 9, she had thus understood the chicken wings as belonging to D1.  Therefore, when asked by the defence why she said D1 brought them into the bar, and why she twice told the police the chicken wings were from D1, she maintained it was because she knew the chicken wings were for table 9, for B Gor; therefore, her understanding was that the chicken wings were brought in by D1.  I find that PW1 having such understanding is not an unreasonable one.

20. As to PW1 saying she had gone over to table 9 to tell the customers the chicken wings could not be cooked, and yet later it was demonstrated that she did not go over to the table, PW1 explained she had told PW2 to handle the matter, to tell table 9 they could not cook raw food for them.   I also find that PW1 having mixed up whether she herself had gone to table 9 or requested a colleague to tell table 9 they could not cook raw food, is not material-  Either way, PW1 is firm in saying she had relayed this message to the customers sitting at table 9.

21. In any event, I also find that how the chicken wings were brought into the bar, or how the message was ultimately relayed to D1 and the people on table 9 that the raw chicken wings could not be cooked are immaterial.  The most crucial thing is whether PW1 is clear and consistent in her evidence in relation to how and where and when D1 made the alleged triad reference utterance to her.

22. It was pointed out to PW1 she had given several versions of D1’s conduct subsequent to being told they could not cook the chicken wings and leading up to the utterance: PW1 had said D1 stood up suddenly and shouted at her, she had also said that D1 had become angry and scolded her, she had also said D1 had walked over to the counter from the table. Whether D1 appears calm or whether he shows aggressive conduct in P.3 is neither here nor there- it is not conclusive to show he was not scolding or shouting or saying something hostile to PW1.

23. However, in all the versions, PW1 is clear and firm in that D1 ultimately had uttered “Do you know my name, I am Wo Hop To B Gor, don’t you know me?” when standing at the bar counter, facing PW1, and she was sure it was him because he spoke to her and she saw his face.  This is also supported by the CCTV recording, P.3, on Camera 6 at 00:14:24 - 00:20, showing D1 standing at the bar counter, seen talking to and looking at PW1 who was inside the bar counter.  In fact, D1 remained at the bar counter talking and looking at PW1 for quite some time- approximately 4 minutes.  It is even seen on P.3 he follows PW1 after PW1 walks out of the bar counter.  The most material consideration is whether PW1’s evidence is clear and consistent in relation to how and when D1 had made the utterance to her, and I find that she is.

24. For the reasons I have given above, I accept PW1 to be a credible and reliable witness.  The reasons for the alleged inconsistencies that arose in relation to how PW1 said the chicken wings were brought into the bar, whether she went over to the table 9 to tell them the chicken wings could not be cooked, can be explained satisfactorily; and in any event, I do not find them to be material issues.  The crux of the matter is whether D1 had made such utterance to PW1, and in that respect, PW1 is clear, consistent and firm in her evidence. D1 had stood by the bar counter, and uttered those words to her, which she clearly heard, as she was opposite him inside the bar counter at the time. She heard clearly, and saw him clearly at the time. 

25. I also had the opportunity to observe PW1 in her demeanour whilst giving evidence.  Though PW1 appeared nervous and misunderstood questions at times, on a whole she did not appear evasive or dishonest.  I had the impression of a witness who was forthcoming and tried her best in recalling the events.”

My Considerations

8.  I have considered all the submissions from both sides.

9.  Despite what has been a well-written Statement of Findings, I regret to say that after consideration and with due respect to the magistrate, I adjudge that the conviction is unsafe and satisfactory and I therefore quash the conviction and set aside the sentence.  The following are the reasons.

10.  First, the date.  The evidence disclosed that the alleged offence took place on 26 June 2018 not 25 as charged.  That evidence came from both PW1’s testimony (AB69E-70D) and the date and time stamps of the video footage of the CCTV (AB91F-H).  Of course, it may be argued that this matter about the date has not caused any prejudice to the appellant as all parties concerned seemed to have worked on the basis that the relevant event happened around midnight of 25/26 June and it did not matter one bit which side of the line the occurrence of the alleged offence fell on.

11.  Secondly, where, as here, identity is in dispute, the tribunal of fact ought to have exercised extra care in evaluating the evidence.  In this case, there was no clear evidence as to the lighting condition (except that the relevant location “[h]ad light”: see AB74I) at the time when the incriminatory utterance was made.  There was no reference made by the magistrate in the Statement of Findings that she had reminded herself of the Turnbull guidelines (though to be fair to the magistrate, she had been quite detailed in her analysis of the identification evidence).  I note also the officer in front of whom PW1 had pointed out the culprit had not been called as a prosecution witness nor was evidence agreed that the one pointed out was the appellant.  Having said all that, I note that the problem of “identification” was saved in this case but only because CCTV footage was available and it was not disputed that the one who was face to face with PW1 onscreen at the critical moment was the appellant (AB92C-O).

12.  Thirdly, expert evidence as regards triad matters.  The only evidence at trial relating to “Wo Hop To” being an active triad society in Hong Kong came in the form of an admitted fact; but that was preceded by the words “According to Sergeant 58906,” (AB13 para 8).  But who was Sergeant 58906 and what were his credentials?  Again, fortunately, this problem is saved because “Wo Hop To” being so notorious, one could take judicial notice of the fact that it was a triad society active in Hong Kong.

13.  But the main problem in this case which, in my judgment, cannot be saved is PW1 is far from being a reliable witness.  With respect, she was rather coarse and crude with regards to the truth; put alternatively, her standard of what constituted truth did not meet with the stringent requirements of the law.

14.  The ground of appeal already gave examples of mistakes she made while giving statements to the police which mistakes were exposed in evidence.  Making these mistakes was bad enough (because there should not have been any legitimate reasons for making them shortly after the alleged offence) but it is her callous attitude towards these mistakes which is more damaging to her reliability as a witness in other aspects of her evidence.

15.  Take, for example, the instance when it was put to her that the appellant had not brought the chicken wings into the bar; her reply was, “How are you guys going to prove he actually didn’t bring in the chicken wings?”: AB99B-C.  Another similar instance was when it was put to her that the appellant never did a series of things including standing up at that time and shouting at her in any way, shape or form; her response was “And then how are you guys going to prove that he didn’t do that?”: AB97G-J.

16.  When PW1 was asked if the appellant had given her a bag of chicken wings and she then told him, “No, we don’t have that policy.  We can’t cook for you.”, PW1 indicated agreement.  But when she was told (correctly) that was not true, she retorted by saying, “Why not?”: AB96T-97A.  Next, when it was (correctly and specifically) put to her that she never said to the appellant, at that time, her company did not have the policy allowing them to cook food for customers, she replied that she definitely said that: AB97C-D.  It is quite clear from other parts of her evidence that she did not have first-hand knowledge of who brought in the chicken wings or when that happened; nor did she personally explain the company policy to the appellant – she simply asked PW2 to do so.

17.  It is apparent from PW1’s manner in giving evidence that she had little appreciation of the concept of hearsay; that she sometimes regarded what she learnt from others as something she personally experienced and was therefore (as far as she was concerned) the truth. Needless to say, this can be dangerous in a criminal trial.

18.  PW1 was an adamant and sometimes “hostile” witness.  After she has been (correctly) told that the appellant had not brought in the chicken wings, she at one time insisted what she said to the contrary to the police was the truth: AB99N.  When it was put that the CCTV showed that the appellant was not pointing at her or gesturing at her that she said he was, PW1 retorted, “Does facial expression count?”: AB 104Q-T.  At one time PW1 said she was sure she had said to the group of customers at Table 9 that they were not allowed to cook raw things: AB109N-P.  That was later shown to be not the case.

19.  For completeness, another inconsistency between PW1’s testimony and the CCTV footage was that PW1 said there were no others around when the appellant made the triad remarks (AB82F) whereas the CCTV showed the opposite (AB92C-O).

20.  In summary, the transcript of PW1’s testimony is littered with too many instances of PW1 insisting on one thing which was later rebutted by CCTV footage as being incorrect.

21.  The gravamen of the present offence is an oral statement made by one person to another.  The allegation can be easily made and difficult to rebut.  In the present case, the sole evidence against the appellant came from one single witness ie PW1 and she has been shown to be prone to mistakes and to be adamant and insistent about what she incorrectly thought was the truth.  Relying on her evidence alone to convict on a criminal charge is extremely dangerous.

22.  I have had the benefit of reading the transcript of PW1’s testimony in its entirety.  I have also viewed the relevant parts of the CCTV footage.  Despite the magistrate’s meticulous handling of PW1’s evidence and the detailed reasoning she went through before accepting it, I apprehend that I, sitting as an appellate judge in a re-hearing appeal, do harbour a lurking doubt in my mind with regard to the case against the appellant.  This I do in the full knowledge that I do not share the advantage that the magistrate had in seeing and hearing PW1 first-hand.

23.  For the above reasons, I adjudge the conviction to be unsafe and unsatisfactory.

Conclusion

24.  The appeal against conviction is therefore allowed and the sentence is set aside.