HKSAR v. TSE WING CHONG and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1164 OF 1997

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J U D G M E N T

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The appeal

1. The 1st and 4th Appellants were found guilty of inflicting grievous bodily harm on PW1. The 3rd Appellant was found guilty of common assault of PW1. The 1st Appellant was also found guilty of common assault of PW2. The Appellants now appeal against conviction. The 2nd Appellant who was found guilty together with the 3rd Appellant of common assault had abandoned his appeal.

Facts

2. The facts are that PW1 was the manager of the service department in a nightclub. In the early morning of 6th June 1997, he saw one of his colleagues, namely PW2, was surrounded by a group of customers. There was argument over a bill and this group hit PW2. PW1 intervened. However, he was also hit by this group. In the identification parade and in Court, he identified the 4th Appellant as the first person who hit him with an ashtray; he identified the 1st Appellant as the one who pulled his hair and the second person who hit him with an ashtray and he identified the 2nd and 3rd Appellants as the two who discussed with PW2 about the bill. He was unable to identify those persons who hit PW2. PW2 himself was unable to identify any person involved in the attack. PW3, who was an employee at the nightclub, identified the Appellants in an identification parade. He said the 1st Appellant was the one who used an ashtray to hit PW1 and a fist to hit the face of PW2. The 2nd Appellant grabbed hold of PW1 so that someone could hit him. The 3rd Appellant kicked PW1 and the 4th Appellant hit PW1 with an ashtray. The 1st Appellant was also identified by PW3 in Court.

3. The Appellants did not give evidence or call evidence. The issue in the trial was one of identification.

The finding

4. After reciting the evidence of the prosecution witness and dealing with the Defence's case, the Magistrate stated that this was an "identification case", he was aware of the principles and reminded himself of the guidelines in Turnbull and Galbraith. Then he said this :

"56. I was impressed with PWs 1 and 3 as witnesses.

57. PW1 gave clear considered responses, both in evidence in chief and cross-examination. He was firm and clear but prepared to concede where appropriate.

58. I took account of discrepancies in the evidence of PWs 1, 2 and 3 but thought they were such as to be expected in the circumstances and not such as to adversely affect their credibility.

59. I considered the differences as between PW3's evidence and that part of his witness statement put to him. Having observed him closely and been favourably impressed with his demeanour as a witness; noting he was a 19 year old student who had found himself in the middle of a scene of violence and noting he seemed to be somewhat timid, I was prepared to accept his explanation as to the discrepancies. I believed his evidence and felt sure his identifications were honest and reliable.

60. I also believed PW2 but as he was unable to identify any of the assailants his evidence was of limited assistance."

The Magistrate concluded by saying this :

"61. I was satisfied it had been proven to the required standard A1 and A4 had intentionally struck PW1 about the head with ashtrays causing his head injuries. I was satisfied this had occurred as PW1 was also being assaulted by others. I was satisfied it had been proven each had unlawfully and maliciously inflicted grievous bodily harm on PW1. I convicted A1 and A4 accordingly.

62. I was satisfied it had been proven A2 and A3 had assaulted PW1. I did not feel it had been proven they were thereby in a joint enterprise with A1 and A4 as they wielded the ashtrays. It was also not proven their assaults had resulted in injury to PW1. After hearing submissions from both counsel on the issue, I convicted A2 and A3 of the lesser included offences of common assault.

63. I was satisfied it had been proven A1 assaulted PW2. I was not satisfied it had been proven that assault occasioned actual bodily harm. Accordingly I convicted him of the lesser included offence of common assault in respect of charge (2)."

Submission of defence

5. Mr Delaney, Counsel for the Appellants, argued that while the Magistrate had referred to the Turnbull guidelines, he had not stated in his Reasons which of the guidelines are to be considered, and he made no attempt to apply them to those parts of the relevant identification evidence. He submitted that there was no reference to any evidence of time, distance or circumstances of observation which makes the identifications inherently difficult, no cautioning that the convincing witnesses may be a mistaken one and no cautioning that there is no other supporting evidence. He submitted that this required more than merely a statement that "I was impressed, ....I believe him".

Evaluation of identification evidence

6. How a magistrate should deal with the evidence of identification would depend on the facts of each case, but in this case, I agree with the submission of Mr Delaney. This is one of those cases in which the task of evaluating the evidence is not discharged by simply adopting a statement that one is "impressed with" or "believed" the witnesses.

7. For a start, the group of persons who surrounded PW2 was more than four in number. PW1 said there were six to seven persons; PW2 said that there were 10 to 12 persons in the room where the trouble started; PW3 said 12 to 13 persons surrounded PW1 and PW2. Where a large group of persons were involved in the attack, one would expect the Magistrate to give reasons in his finding why a particular witness' identification evidence is reliable, e.g. the time he had the attacker under observation, the distance between them, the lighting conditions, etc. These are matters that should be referred to in a statement of finding but are lacking in the finding itself.

8. In this case, there are matters which obviously call for consideration in the finding. PW1 described the first attacker, i.e. the 4th Appellant, as 5'11" and 25 years of age and the second attacker, i.e. the 1st Appellant, as tall, thin, short-haired and aged about 30. Counsel in his closing submission before the Magistrate said that the 4th Appellant and the 1st Appellant just do not fit these descriptions. PW3 said the first attacker was partly bald, around 40 to 50 years of age. The Magistrate had seen the Appellants in a two-day trial, these are matters that he ought to have dealt with in his Reasons.

9. PW3 had, after the accident, given a statement to the police saying that his view was blocked and he could not see the attack. His explanation was that he was very nervous after the attack and he could not calm himself down. Later on, at the identification parade, he had calmed down. The Magistrate accepted his explanation. The issue, however, is not simply accepting his explanation, the issue is whether six to seven weeks after the assault PW3's identification of the attackers was a reliable one.

10. It has to be pointed out that until the statement was shown to him, PW3 denied that he had told the police that his view was blocked and could not see the attackers. In the absence of a proper evaluation of the evidence, one is left with a real doubt as to the quality of the identification and the appeal has to be allowed on this ground.

Grievous bodily harm

11. There was also a complaint that there was no evidence that PW1 had sustained grievous bodily harm. While he stated he was smashed with hard objects and fainted, the medical report stated that on physical examination, there was a 2 cm laceration at the forehead region and left ear, and he was fully conscious. The provisional diagnosis as stated in the report was "head injury". There was no detail on this diagnosis.

12. "Grievous bodily harm" should be given its ordinary and natural meaning of "really serious bodily harm" and it is undesirable to attempt any further definition : DPP v. Smith [1961] AC 290. In view of the matters contained in the medical report, one just cannot say that PW1 had sustained grievous bodily harm.

Late disclosure

13. The Appellants also complained that the prosecution had not disclosed the video tapes taken by the nightclub's close circuit television camera timeously. In view of my decision on the question of identification, it is not necessary for me to deal further with this matter.

Conclusion

14. I will allow the appeal and quash the convictions.