HKSAR v. CHENG KWOK KEUNG

HCMA1249/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1249 OF 2005

(ON APPEAL FROM TWCC 2098 OF 2005)

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REASONS  FOR  JUDGMENT

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1. The appellant appealed against his conviction by Mr Glass in the Tsuen Wan Magistracy on 8 December 2005 of a single charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap.212.  I dismissed the appeal and indicated that I would give my reasons for so doing in due course.  This I do now.

The prosecution case

2. The only witness called in support of the prosecution case was the alleged victim of the assault, namely Wong Wai Yee.  He testified that he worked in the kitchen of the Royal Capital Harbour restaurant on the fifth floor of the Nan Fung Centre, Castle Peak Road, Tsuen Wan.  He performed odd jobs as a cleaner.  The defendant, Mr Cheng Kwok Keung, was the manager of that restaurant.  Mr Wong testified that at about 10:00 a.m. on the morning of 24 July 2005 he was working in the kitchen of the restaurant.  Mr Cheng asked him to move a trolley.  He explained that someone else was using the trolley and turned away to do other things.  He heard the defendant call out to him, “Come over!  Come over!”  However, he continued to move away.  Immediately, he felt someone grabbing the back of his neck very forcefully with a hand.  He turned around as soon as he was grabbed.  It was the defendant who had grabbed him.  Then, he left the kitchen.

3. At the time he was grabbed he felt pain at the back of his neck.  Later, less than two minutes later, when he put his hand on the back of his neck he found blood on his hand.  Nevertheless, he continued to work until five to ten minutes later, when he began to feel dizzy and suffer from a headache.  Then, he called his son.  His son arrived about 30 minutes to one hour later.  At about 1:55 p.m. his son made a report to the police.  In due course, he was taken by ambulance to Yan Chai Hospital.  In the ambulance, the area of bleeding at the back of his neck was covered with a bandage.  Bloodstains were caused to the collar of the coat that he was wearing at work.

4. Medical reports from two doctors at Yan Chai Hospital were put into evidence under section 65B of the Criminal Procedure Ordinance, Cap.221.  Dr Mark Cheung examined Mr Wong at 14:40 hours on 24 July 2005.  He noted on examination of Mr Wong (appeal bundle, page 21) :

“Local swelling was noticed at right side of the back of neck.  Red marks compatible with finger size were seen at the area mentioned.  The external injury on his neck was unlikely to have caused bleeding.”

5. In their joint medical report Dr Cheng, a medical officer, and Dr Chung, a consultant of the Orthopaedics and Traumatology Department described the examination of Mr Wong, apparently on his admission to hospital on 24 July 2005, as revealing (appeal bundle, page 19):

“… there was posterior neck scratch mark with no active bleeding.  There was tenderness, redness and swelling.”

The defence case

6. The defendant did not avail himself of his right to give evidence but he did utilise the right to call evidence.  The appellant’s case, as put in cross-examination of Mr Wong was that the appellant had not grabbed Mr Wong’s neck nor caused any injury, in particular there was no abrasion or wound at the back of his neck; that Mr Wong had complained to the doctor that he had been slapped, not grabbed.  Mr Wong denied the suggestions.

7. In support of the defendant’s case two witnesses testified.  Both witnesses testified of being in the kitchen of the restaurant at the material time and denied having seen any assault by the defendant on Mr Wong.  Each of them spoke of having seen and heard the defendant make a request of Mr Wong to do some work, one said to collect some dirty dishes and the other to move a trolley containing dirty dishes.  The former said that Mr Wong simply ignored the request and carried on with his other work, whilst the latter said that the defendant had responded in foul language addressed at Mr Wong.  Each witness said that they had seen no physical contact between the defendant and Mr Wong.

8. It was an admitted fact between the parties, pursuant to section 65C of the Criminal Procedure Ordinance, that the defendant had made certain statements in response to the words of caution.  In his answers, the defendant said that he had been present in the kitchen with Mr Wong and had asked him to remove a trolley of dirty dishes.  However, he said that Mr Wong did not follow his instructions, but simply walked away.  For his part, the defendant said that he had ignored Mr Wong and had no physical contact with him at all.

Statement of Findings

9. The magistrate stated that he found Mr Wong to be an honest and reliable witness whose evidence he accepted.  He noted that he was an uneducated man from the Mainland, who did not speak Cantonese and only spoke Mandarin with an accent.  In consequence, the magistrate found that he had difficulty in expressing himself in Hong Kong.  The magistrate acknowledged that there were inconsistencies in the evidence of Mr Wong.  However, in the result he found proved beyond reasonable doubt that, (appeal bundle, page 16 paragraph 14) :

“... the defendant had with hostile intent assaulted PW1 by grabbing at the back of his neck.  This grab I found had directly caused PW1 injuries as set out in the medical reports except the face injury.  These injuries, I found, were actual bodily harm and were not trifling.  I also found the defendant’s grab had caused PW1’s neck to bleed, and as a result and it had stained his work jacket, which I found he was wearing the time of the assault.”

The magistrate stated that he rejected the evidence of the two witnesses called in the defence case and gave detailed reasons for so doing.

Grounds of appeal against conviction

10. By Ground 1 it is submitted that the magistrate’s reasons for accepting the evidence of Mr Wong, in light of its inconsistency with the evidence in the medical reports, were inadequate and unsatisfactory.

11. By Ground 2 it is submitted that in reconciling those inconsistencies the magistrate erred by speculating as to why it was that the descriptions in the reports did not match the complaint and the injuries of which Mr Wong testified.

12. By Ground 3 it is submitted that the magistrate erred in not giving appropriate weight to the contents of the two medical reports and, in light of the provision contained in section 65B(4)(b) of the Criminal Procedure Ordinance, not requiring the doctors to attend court to give oral testimony to resolve the matters arising from their written reports.

13. By Ground 4 it is submitted that the conviction of the appellant is unsafe and unsatisfactory.

14. In substance Grounds 1 and 2 encompass the same argument, namely that the medical evidence was inconsistent with the evidence of Mr Wong and the magistrate was wrong to reconcile those inconsistencies for the reasons he gave and to accept Mr Wong’s evidence.  It appears from the last sentence on the first page of Dr Cheung’s witness statement, where he makes a reference to Mr Wong then being admitted to the Orthopaedic ward, that he examined the patient first.  His statement indicates that he did so at 14:40 hours.  Of course, by then over four and a half hours had elapsed since the injury had occurred, during which time the injury had been bandaged by an ambulance man.  Of Mr Wong’s complaint Dr Cheung noted (appeal bundle, page 21):

“... he alleged that he was slapped by other person and sustained scratch injury on his neck region.  He complained that he sprained his back in the incidence.”

Of the result of his examination of Mr Wong he noted :

“Local swelling was noticed at right side of the back of neck.  Red marks compatible with finger size were seen in the area mentioned.  The external injury on his neck was unlikely to have caused bleeding.”

15. It is to be noted that neither Dr Cheng, a medical officer, nor Dr Chung, a consultant in the Department of Orthopaedics and Traumatology, state in terms in their joint statement that they had examined Mr Wong themselves.  The statement reports (appeal bundle, page 19),

“ The diagnoses were :

— Injury to face and neck

— Assault”

Under the heading “Medical notes” it is reported of Mr Wong :

“Clinically there was posterior neck scratch mark with no active bleeding.  There was tenderness, redness and swelling.”

16. From these reports, Mr So contends, is established irreconcilable inconsistencies with the evidence of Mr Wong.  Firstly, Dr Cheung notes that the complaint was of a slap, whereas in his evidence Mr Wong denied that he had been slapped by the defendant and that he had told the doctor that.  He had been grabbed.  Secondly, Dr Cheung expressed the opinion that the injury to the back of the neck of the witness was unlikely to have caused bleeding, whereas Mr Wong testified that the wound was still bleeding in the hospital.  Finally, the court was asked to note that the joint statement of doctors Cheng and Chung referred to a diagnosis of “ injury to face and neck”.  Criticism is made of the magistrate that in reconciling these reports with the evidence of Mr Wong the magistrate has indulged in speculation.

17. It seems to me that the magistrate was entirely justified in having regard to the fact that Mr Wong was an uneducated man from the Mainland who did not speak Cantonese and who had given his evidence in accented Putonghua.  Clearly, there was a risk of miscommunication at the hospital.  Similarly, the magistrate was entitled to take into account the doctors are more interested in treating a patient than detailing the circumstances of an assault.  Furthermore, the injuries observed and described of the neck of Mr Wong, namely swelling to the right side of the back of the neck where there were red marks compatible with finger size and a posterior neck scratch mark, albeit with no active bleeding were wholly consistent with Mr Wong’s evidence.  Moreover, as the magistrate did in the trial, I had an opportunity in the course of the appeal to examine Mr Wong’s coat.  It bears extensive staining to the collar, which is compatible with having been caused by blood.  The reference to an injury to “the face” in the joint report was not followed up by any finding whatsoever in the medical notes.  Nowhere in his evidence did Mr Wong speak of such an injury.  The reference appears to be no more than an erroneous anomaly.

18. In my judgment, far from indulging in speculation in reconciling the apparent inconsistencies in the evidence of Mr Wong, the magistrate did no more than apply commonsense and, properly, had regard to the evidence overall.  The magistrate was perfectly entitled to find him, as he did, an honest and reliable witness.  There is no merit in these grounds of appeal.

Ground 3

19. By Ground 3 it is submitted that the magistrate erred in not exercising his power under section 65B(4)(b) of the Criminal Procedure Ordinance to require the three doctors to give oral evidence.  In the first place, it seems to me, that it ill behoves a party who has consented to the evidence being tendered under this provision to make this complaint.  In any event, I am satisfied that the evidence was readily understandable in its written form and the anomalies and apparent inconsistencies explicable by the application of commonsense.  The evidence of the injury to the back of Mr Wong’s neck was wholly consistent with his evidence of having been grabbed forcefully on his neck by the defendant from behind.  There was no need whatsoever for the magistrate to require oral testimony from the doctors.  There is no merit in this ground of appeal.

20. Finally, I was satisfied that the conviction was not unsafe and unsatisfactory and the appeal was dismissed.