HKSAR v. CHOI YUET MEI MAY

HCMA622/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 622 OF 2002

(On appeal from WSCC280 of 2002)

---------------------------

--------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted on 14 June 2002 of one charge of common assault, contrary to common law and section 40 of the Offences Against the Person Ordinance, Cap. 212. She was bound over to be of good behaviour for a period of 12 months. She pleaded not guilty to the charge and was represented by Mr Chu Tak of counsel at trial.

2. The facts arose from a dispute in a lawyers' office where the employees of the office were under considerable strain because the partnership of the solicitors who ran the office was being dissolved. The relationship between PW1 and the appellant was not a particularly happy one. On the day in question, late in the day, an invoice was returned by PW1 to the appellant who had prepared it. It was suggested that there was an error on the face of the invoice and it was returned to the appellant for correction.

3. Shortly thereafter, it was suggested that the appellant approached the desk of PW1 saying that PW1 had made a mistake in relation to the invoice. PW1 continued with her work but said she was hit by the appellant on her head. She said she looked to her left side, in the direction slightly behind her left shoulder, and saw the appellant withdrawing her open-palmed right hand in an upward motion toward her right shoulder. The police were called. The appellant was charged. PW1 did not suffer any physical injuries as a result of the assault. She did not return to work until two weeks after the incident at which time the appellant had left the firm.

4. The appellant now appeals her conviction.

5. Because of the nature of the grounds of appeal which are self-made by the appellant, it is necessary to point out that an appeal court does not retry the issue heard in the lower court. The magistrate is often in a better position to determine credibility and truthfulness on the part of witnesses than is an appeal court who is working from a transcript. The task of the appeal court is to examine the reasons that the magistrate has given together with the evidence before the court, to ascertain whether the magistrate has properly considered all of that evidence and the law, and arrived at a proper decision.

6. The first of the grounds of appeal is that the evidence of PW1 and PW2, who was present at the time of the incident, is at variance with the statements they gave the police. The appellant was represented by counsel in the court below and ample opportunity was afforded in the lengthy cross-examination to put these discrepancies to the witnesses. The appellant concedes that she had an opportunity to bring this to the attention of her counsel but cannot recall whether the matter was dealt with in cross-examination. No complaint is made of the competence of counsel. I am unable to say that the appellant has been prejudiced in any way by any discrepancies which may have existed as she had full opportunity at trial to have that matter dealt with.

7. The appellant further argues that the magistrate has wrongly rejected her evidence firstly on the basis that she was unable to produce the same effect when asked to demonstrate in court the shouting aloud that took place in the office, and further that the magistrate wrongly rejected her evidence because she failed to remember in detail insulting words used during the verbal exchange between herself and PW1. The thrust to the magistrate's finding was that matters were put on behalf of the appellant to witnesses in the cross-examination but were not related by the appellant when she gave evidence.

8. A magistrate is entitled to look at the allegations put by counsel and see whether they are supported by the testament of the defendant in a trial. A failure to match the allegations in the evidence leads to a conclusion that either there was a lapse of memory or there has been a fabrication of evidence. This is the finding eminently within the domain of the magistrate and is one which an appeal court will only interfere with where there is a clear indication that the magistrate has mistaken his decision.

9. The appellant now tells me that she was frightened and upset at the time of the trial and that may have been the cause for her failure to recollect. I accept that because she has also shown an emotion before me this morning. However, I must again state that she had the benefit and protection of counsel in the court below and any difficulty that she was experiencing could have been brought to the court's attention by counsel.

10. The appellant also argues that the interpretation at trial was inadequate. There were two matters that she brings to my attention and these were dealt with by counsel and the magistrate as can be seen from the transcript of the trial. The appellant argues that one in particular which amounts to the statement that she had on a previous occasion complained against two colleagues and kicked them out could be construed as an implication that she actually resorted the physical violence. The magistrate specifically referred to this piece of evidence in the transcript and defined it as a collateral issue not necessary to his statement and therefore disregarded it.

11. The complaints by the appellant of the findings of the magistrate all go to credit.

12. A magistrate makes findings as to credit and as to whom he will believe upon the evidence led before him and the cross-examination of the witness. The magistrate in this matter gave long and careful reasons where he analysed with great care and attention the evidence of the witnesses. He disregarded the evidence of PW2 as not being reliable. He made specific findings upon his analysis of the evidence that he accepted PW1, finding her to be an impressive witness who did not exaggerate her evidence notwithstanding extensive cross-examination. He found he could not rely upon the evidence of the appellant because she failed to testify in the terms of the allegations put to witnesses in the examination-in-chief, from her general demeanour, and because she gave two versions of the events about the blow (one that it may have been an accident and the other that it did not happen).

13. Having adopted the correct burden and standard of proof, he convicted the appellant and I cannot in any way say that he was wrong to do so. Notwithstanding that a conviction for such a minor matter will weigh heavily upon the appellant, I cannot disturb the findings of the magistrate and this appeal is dismissed.