HKSAR v. WONG KA WAI

HCMA234/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 234 OF 1999

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J U D G M E N T

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1. The Appellant was convicted after trial by a magistrate for assault occasioning actual bodily harm, contrary to common law and punishable under s.39 of the Offences Against the Person Ordinance, Cap.212, in that on 6 October 1998, at Flat D, 20th Floor, Block 14, Yuet Wu Villa, Tuen Mun, he assaulted Filipina Silawan Julie Balonggay, thereby occasioning actual bodily harm to her.

2. The victim and only prosecution witness was a maid employed by the Appellant and his wife and her main job was to look after their young son. The flat in question was the home of the Appellant. The victim and the child occupied one bedroom.

3. On the day in question, at about 9.15 pm, the victim returned to her room. According to her evidence, she was spending time inside to look for her hospital appointment card. The Appellant was wondering why she did not come out of the room to work. He went into the room at about 10:30 pm and questioned her. An argument ensued, during which, according to the evidence of PW1, the victim, she pointed a finger at the Appellant and unintentionally touched the lower lip of the Appellant. The Appellant was apparently angered and he grabbed her upper right arm and pushed her. As a result, her left upper arm bumped against the window, causing a bruise to her left upper arm which, according to the medical evidence, was about 3 cm in diameter.

4. During cross-examination, she agreed that the wife of the Appellant came into the room immediately after the push, and that was about 11:15 pm, and took the Appellant out of her room. Thereafter, at about 11:20 pm, she was leaving the flat because she was going away leaving her employment. She went into the sitting room where the Appellant, his wife and son were. She touched the son's face, but the Appellant pushed her hand away. This, however, did not constitute the assault mentioned in the charge. It was the grabbing of her upper right arm and the push committed by the Appellant that, according to the Magistrate, constituted the assault in the charge.

5. There are two substantive grounds of appeal, and for the purpose of this judgment I need only mention the first ground, which is :

" The Learned Magistrate erred by failing adequately or at all to consider, evaluate, and reconcile in favour of the accused an inconsistency in the Prosecution case.

Particulars

In examination-in-chief, PW1 alleged that at the material time, she was assaulted by the Appellant, who pushed her towards the window at the living (sic) room, thus causing her to sustain bodily injuries on her left upper arm. Whereas, under cross-examination, PW1 has expressly agreed that the only occasion she has any bodily contact with the Appellant was in the sitting room during which she was trying to touch the face of the Appellant's son and, upon seeing that, the Appellant brushed her hand away."

6. The trial was conducted in Punti and the transcript is in Chinese. However, at the commencement of this appeal, counsel agreed that the appeal could be conducted in English, because the skeleton arguments of Ms Ma, counsel for the Appellant who also represented him at the trial, is in English. The Appellant also agreed to this course being taken.

7. The relevant part of the transcript is translated as follows:

"Q: As a matter of fact, I put to you, in fact the only contact that Mr Wong [ie, the Appellant] had with you was to push your hand, when you touched his son.

A: Agree.

Court: Do you understand the question?

A: Understand.

Court: The question is - I don't want to have any confusion. The question is the only contact between Mr Wong and you is when you touched the son and he pushed your hand away. That is the meaning. Do you understand?

A: Yes, Sir.

Court: (You) touched his son, not touching Mr Wong.

A: Yes.

Court: Okay."

This was an unequivocal and positive answer giving to the question put that the only contact between the Appellant and the victim was when she touched the young boy's face and the Appellant pushed her hand away. Ms Ma complained that there was no resolution of the discrepancy between this admission of the victim and her other evidence. She relied on several authorities to support her submission that where there was a discrepancy in an important aspect of the evidence, a magistrate should resolve it in his decision.

8. In R v Chong Kam-sau, HCMP859/85 (31 October 1985 unreported), O'Connor J had this to say :

"...Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case."

9. In R v Yan Kam-ting [1989] 2 HKLR 673, the appellant was convicted of theft. There was a voir dire at which the appellant argued that a police inspector had intimated that the appellant would make matters worse for himself by having a solicitor present. The appellant's solicitor gave evidence that the inspector had entered the interview room twice. The DPC said that the inspector had only been in the room once. The inspector said he could not remember if he had entered the room once or more than once. The magistrate said he found the DPC and the inspector honest and also accepted the evidence of the solicitor totally. Yang CJ said :

" There was therefore clearly a discrepancy in the evidence on a point of some importance. The Magistrate in his ruling on the voir dire found both the DPC and Inspector Mak honest and he also accepted the evidence of Mr Tang [the solicitor] 'totally'. He did not deal with the discrepancy, nor did he reconcile his acceptance of the credibility of these three witnesses in the light of the discrepancy.

The failure to resolve the discrepancy, which touches upon an important aspect of the case, leads me to the conclusion that the conviction is unsafe and unsatisfactory...."

10. In R v Ma Yuen-ching, Crim App No.391/96 (13 December 1996, unreported), where the victim of a robbery told the District Judge at trial that he was very much intoxicated when the incident took place. The Court of Appeal analysed the evidence to point out that there were three versions about an important event, and it concluded :

"...He [the judge] failed, however, to acknowledge that the victim had given three versions of the occurrence and said nothing to explain why he was prepared to accept the version which was most damaging to the applicant. In the outcome we cannot help but be left with a lurking doubt as to the propriety of the conviction."

11. Ms Chan, for HKSAR, submitted that in fact the Magistrate had dealt with the discrepancy. She drew my attention to paragraph 11 of the Magistrate's Statement of Findings:

"11. I have very carefully observed the prosecution witness's demeanour when she gave evidence and very carefully considered her evidence. Although in cross-examination by defence counsel, she agreed that the only physical contact that she had with the defendant was when she used her hand to touch the defendant's son and the defendant pushed her hand away, in her evidence she clearly indicated that the defendant had grabbed her arm and pushed her causing her to bump against the window. She also said that that happened inside her room. The evidence shows that the defendant's son was in the sitting room, and the prosecution witness touching him (the son) took place inside the sitting room. Without doubt, the defendant's pushing the prosecution witness to cause her to bump against the window and the defendant's pushing her to avoid her attempt to touch his son were two independent matters, and those two maters both occurred."

12. Ms Chan accepted that there was a discrepancy created by the victim's agreement that there was only one physical contact between her and the Appellant, and that was when he pushed her hand away from touching his son. However, Ms Chan argued that the Magistrate had, by the cited paragraph, satisfactorily dealt with the discrepancy. I do not agree. The Magistrate had chosen a part of the victim's evidence, but ignored the other part. He said in his Statement of Findings as follows:

"My conclusion is, the prosecution witness is an honest and reliable witness, and I accept her evidence."

13. In fact, he only accepted the part of her evidence which pointed to the Appellant's guilt, and did not accept her evidence that the only contact with the Appellant was when she tried to touch his son. He had recited that evidence, but no where can I find in his Statement of Findings how he proposed to resolve the discrepancy between it and the rest of her evidence.

14. Ms Chan suggested that there might be a number of reasons for the victim to agree to the "only contact" question, for example, that she first gave evidence in one of the Filipino dialects, and later altered to give evidence in English (which indicated that that might give rise to confusion in her understanding of the questions), and on no less than two occasions, the Magistrate had reminded her to be careful with her answers by having to understand the question first. That may be so, but the Magistrate did not express any view how he resolved the discrepancy.

15. There was no re-examination of the victim, and if I may say so, not surprisingly, because when the answer came out, the Magistrate immediately sought clarification, and asked her if she understood the question, but her response was the same, in the affirmative.

16. Only the Appellant's wife was called to give evidence for the defence. The Appellant himself did not give evidence. It was perfectly proper for the defence to rely on the discrepancy which must have weakened the prosecution case.

17. The Magistrate rejected the wife's evidence. Nothing was made by Ms Ma of that.

18. In view of the situation that there was no clarification of that very important agreement of the only contact, there is simply no material upon which this appellate court could draw any inference. The Magistrate failed to resolve this very important discrepancy, which might point to guilt or innocence, but simply accepted that other evidence that there was this pushing and bumping on the window inside the victim's room. I must say that the discrepancy had not been resolved at all.

19. In the circumstances, I am left with a lurking doubt as to the propriety of the conviction, which is unsafe and unsatisfactory. I allow the appeal. The conviction is quashed and the sentence set aside.