THE QUEEN v. CHAN WAI HUNG

Headnote

Assault occasional actual bodily harm - issue identification - no evidence of bodily harm - conviction for common assault substituted.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 1083 of 1985

________________________________

Oral judgment reduced to writing

________________________________

1. The appellant was convicted on two charges of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212.

2. The victims are brothers aged 31 and 36 respectively. On 9th August, 1985, they became involved in a dispute with a group of youths. They were chased by the youths from the warehouse where the dispute arose into Tai Lin Pai Road. They were caught and punched. The group then returned to the warehouse.

3. A report was made to the police and the appellant was later pointed out by the victims in the warehouse and arrested.

4. The appellant gave evidence and claimed that the victims were mistaken; he had been merely an onlooker and had taken no part in the affair. He called a witness who gave evidence to like effect.

5. The main ground of appeal was that the conviction was unsafe and unsatisfactory, on account of the inconsistencies in the victims' evidence and also the dangers of mistaken identification by even truthful witnesses.

6. The magistrate's findings included the following:

"PW1 impressed me as a reluctant witness. In Court he said he could not identify any of his assailants and that he wanted to settle the matter. But in the same afternoon of the incident he and PW2 took PW3 back to the scene of the incident and pointed out the Defendant to PW3. I accept PW1's evidence in so far as it relates to the identification of the Defendant in the presence of PW2 and PW3.

 

        PW2 said that he saw the Defendant was involved in the fight between PW1 and a group of persons and that the Defendant was among a number of persons who had chased after PW2. PW2 was punched as he was chased by those unknown persons. Although PW2 appeared to be reluctant when he started to give his evidence he improved as he went along and he impressed me as a truthful and accurate witness when he gave his account of the incident. I accept his evidence.

 

        PW3 was the arresting officer and he arrested the Defendant who was at the time being pointed out by PW1 and PW2 as being one of the assailants. I accept his evidence.

 

        The Defence was one of mistaken identity. He gave evidence to the effect that he was an onlooker at the time of fight and that he had never taken part in the assault. He called one defence witness, a fellow worker, who said that he saw the Defendant in the vicinity as an onlooker. Having observed the manner in which they gave their evidence, they did not impressed me as truthful witnesses. I do not accept their evidence."

7. Clearly the victim of the first charge had not wanted to get involved with the authorities and was a reluctant witness.

8. There were also several minor discrepancies in the evidence of the two brothers, which the magistrate did not deal with. One of them mentioned kicking, but the other did not. One mentioned a group of 6-7 attackers, while the other said 4-6.

9. I do not consider that these were matters of sufficient weight to justify interfering with the magistrate's assessment of the men as truthful and reliable witnesses.

10. More germane was the magistrate's apparent failure to examine the possibility of genuine error. There is nothing in the record to show that he considered this aspect of the matter.

11. It is, therefore, necessary to look at the circumstances. Both victims pointed out the appellant at the scene two hours after the assault. The fact that both men did so, without apparent difficulty, in the absence of any motive to accuse the appellant falsely, is strong evidence that no mistake was made.

12. However, what convinces me in this regard is the evidence of the second victim, that it was the whole group that had chased them. The appellant was represented at the trial and there was no cross-examination on this point. The magistrate found the victim to be a witness of truth. I am satisfied that the magistrate was entitled to find that the appellant had taken part in the assault.

13. It is, however, also a ground of appeal that there was no evidence of actual bodily harm.

14. The victim in the first charge said he suffered no significant injury. The medical report, which was produced under section 65B of the Criminal Procedure Ordinance, indicated 'mild local tenderness over sternal region and epigastrium'.

15. His brother's evidence was, "I sustained injury but I was not told what injuries.". The medical report, admitted under the same section, reads: "The above named complained of alleged assault with fist blow over the left side of head, anterior chest and epigastrium. He complained of pain over the involved side. Physical examination revealed local tenderness only.". There is no other reference to injury in the evidence and the statement of findings merely records that injuries had been sustained by both witnesses.

16. According to Archbold, "Actual bodily harm' means exactly what the words import - some actual bodily injury".

17. In R. v. Miller⁽¹⁾ Lynskey J. quoted with approval a statement that formerly appeared in Archbold: "Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor ....". There must, therefore, be some harm, not necessarily permanent. A complaint of pain does not establish that injury occurred. In the circumstances of this case it would have been more satisfactory had the medical officer been called as a witness.

18. On the evidence it seems to me an abuse of language to hold that either victim suffered actual bodily harm. Counsel for the Crown is of the same view.

19. The appeal is allowed to the extent that a conviction for common assault is substituted. At the request of defence counsel, I also set aside the probation order - I note that probation was not recommended - and order that the appellant be conditionally discharged for 12 months in his own recognizance of $200.

(1)    (1954) 2 Q.B. 292 at 292