HKSAR v. NG WAI PING

HCMA967/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.967 OF 2002

(ON APPEAL FROM ESCC 2157 OF 2002)

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J U D G M E N T

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1. PW1 in the trial was a female cashier of a game centre in Java Road, North Point who attempted to intervene into a dispute between the appellant and another in the premises. She was attacked by the appellant, dragged outside and he continued to assault her there. Other men joining in. She was the victim of the 1st charge. When PW2 intervened outside the premises, he was set upon by the appellant and other males who attacked with fists, kicks and a water pipe which they took from PW2. That was the subject of the 2nd charge. The assailants then damaged PW2's van which was the subject of the 3rd charge. The appellant now appeals against those convictions.

2. There are three matters which cause the appellant's concern. Firstly, is the lack of identification. The two witnesses for the prosecution, not only in respect of PW1, failed to identify the appellant but PW1 gave positively negative identification, in other words, said that it was not the appellant. PW2 was unable to identify the appellant.

3. The magistrate was fully aware of that position and in his evaluation of the evidence, was satisfied that it was a failure of identification which went to the favour of the appellant. As a result of the circumstances which occurred, he said :

"... The event under consideration were unexpected and viciously violent. I did not accept counsel's submissions that their evidence affirmatively disproved that the defendant was among the assailants; on the contrary I accepted their evidence that they simply could not recognize anyone who had taken part in the beatings. On their evidence alone, there was a complete absence as to identity."

4. I cannot say that the magistrate's approach in respect of the question of identity has been wrong and this ground must fail.

5. The second ground of appeal was that the solicitor who represented the appellant at trial failed to obey his instructions in respect of the prosecution of the defence. The complaint made by the appellant is that he told the solicitor that he had not committed the offences and that the solicitor failed to put that matter to the court. The appellant entered the plea of not guilty which is an affirmative claim not to have committed the offence.

6. The magistrate said this :

"Direct evidence as to identity was non-existent. PW1 gave 'positively negative' identification against the defendant. Identity depended on admissibility of the cautioned statement and if admissible, the weight attaching to it. The admissibility of the cautioned statement was challenged. There existed, it was alleged, a background of animosity between PW1 and the defendant's mother. This background was known to the police resulting in a trumped-up cautioned statement. The defendant elected to remain silent on the general issues and call no witnesses, as was his right. No adverse inference was taken from this exercise."

7. It is quite clear that the legal representative of the appellant was placing before the court an affirmative defence that the appellant did not commit the offences. There is nothing in this ground of appeal.

8. The third ground of appeal was that the magistrate did not properly consider the admissibility of the statements. I can do no more than quote what he said :

"It was the defendant's position that he never said 'I did it' to the police. It was alleged that the defendant's mother had been arrested one week prior to the defendant's arrest. Counsel's grounds relating to the admissibility were that, inter alia, that the defendant was told he had to answer the questions and his resulting written answers were directed and guided by the police while his real answers were ignored. The defendant had formally complained of the officer's actions in writing. He was told that unless he cooperated his mother would be charged as well. The defendant did not testify on the special issues nor did he call witnesses. It was his right to remain silent and no adverse inference was drawn from that exercise.

I considered all the evidence and submissions of counsel. The onus remained on the prosecution to prove its case for admissibility of statements made by the defendant beyond any reasonable doubt. I found the defendant did state to the officer that he 'did it' and that such a verbal was admissible; I found that this statement referred to the assaults alleged herein. Further I found that the cautioned statement Ex.P2 & 2a was admissible as evidence. I found no reasons to exercise the discretionary power of the court to exclude the statement on other grounds. I found that it was the defendant's statement and not a statement dictated by the interviewing officer. This made the admissibility and the weight to be given to the verbal and written statements issues of primary importance. Having considered all the circumstances, I gave both statements full weight."

9. It is clear, therefore, that the magistrate had fully before him the circumstances claimed by the appellant as to the manner in which the statement was taken. He fully analysed those together with the submissions made by the legal representative of the appellant and nonetheless came to the conclusion that the statements were admissible and true and could be given full weight. There is nothing in the magistrate's findings between the case that he has approached this matter in any way other than he ought and there is nothing in this ground of appeal.

10. I have considered overall whether or not I should have a general doubt in respect of the conviction of the appellant and in respect of any of the charges which he faced and found that I do not. The appeals against conviction are dismissed.