HKSAR v. MOY WAI FU

HCMA1212/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1212 OF 1998

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J U D G M E N T

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1. The Appellant, together with another person, D2, were charged that on 5th July 1998 at the car park on the 5th Floor, Kowloon City Plaza, 128 Carpenter Road, Kowloon City in Hong Kong, they unlawfully and maliciously wounded Law Chun Hang. The Appellant is appealing against conviction.

2. Law Chun Hang, the victim in this case, gave evidence as PW1. PW1 was trying to take photographs of the Kai Tak Airport on that day which was the last day of its operation before the opening of the New Airport. At first, there were a lot of people at the scene taking photographs. The security guards of the building told them to disperse. Eventually, apparently because of the persistence of the victim, he was the only person left in the car park still taking photographs of the airport.

3. D2 is the security guard who was holding a loudhailer, using it to tell people to go away. PW1 described that another security guard, identified as the Appellant, later came along, who together with D2 urged him to leave. After taking some further photographs, PW1 was leaving and then he found himself assaulted by the security guards including the Appellant and D2. In his evidence, PW1 specifically identified D2 as the person who used the loudhailer to cause a wound on his head and the Appellant as the one who kicked him. PW1's evidence was supported by two eye-witnesses who were independent of the event.

4. PW2 was a newspaper reporter and PW3 was a marketing manager. Both of them happened to be in the car park when the incident occurred. They told the court what they had observed. PW2 had the advantage of using his reporter camera to take certain photographs when the event developed, which photographs were produced to the court as exhibits.

5. In his Statement of Findings, the Magistrate was of the view that PW1 was difficult at the material time and place. Apparently, he was insistent to remain there taking photographs while all other members of public had left the scene. The Magistrate used the word "stubborn" for his behaviour in refusing to leave.

6. As I said, all of the three witnesses gave evidence of the assaults. The Magistrate said that the version of the event recounted by PW1 was essentially corroborated by PW2 and PW3. He found the evidence of the witnesses compelling and he stated that there were inconsistencies between the three principal prosecution witnesses but they were all minor and insignificant, such as not to cast doubt on the reliability, credibility and integrity of their evidence.

7. On behalf of the Appellant, Mr Grounds tried to persuade me that since in cross-examination PW3 said he was not sure about the actions of others, apart from those of the security guard with three stripes, i.e. D2, and as the Magistrate found PW3's evidence compelling, then the Magistrate's way of thinking or his mental process in reaching the conclusion to convict the Appellant showed error. The difficulty with Mr Grounds' submission is that there was also the evidence of PW1 and PW2 pinpointing the Appellant as the person who participated in the assault. At least, there was very clear evidence that the Appellant kicked PW1 once.

8. In the circumstances, I do not think that as an Appellate Judge, not having the benefit of seeing the witnesses giving evidence as the Magistrate did, I can justifiably interfere with the Magistrate's decision. This is in fact a view shared by my brethren in R v Hui Ki Fong HCMA No.196 of 1994 (26 July 1994, unreported) and R v Yip Kam Lam HCMA No.371 of 1996 (14 August 1996, unreported).

9. The Magistrate, in his Statement of Findings, stated as follows :

" In all probability the lacerations on the back of PW1's head were caused by D2 striking that area with the loudhailer. This occurred before the appellant became physically involved in this incident but I was satisfied beyond all reasonable doubt from the evidence that the appellant and D2 had a common design to teach PW1 a lesson by assaulting him. I was satisfied that the lacerations constituted wounds. There was bleeding and stitches were inserted. If, during the course of the assault, PW1 was wounded then in my view the appellant was as culpable as D2."

10. It is therefore clear that the Magistrate convicted the Appellant of wounding on the basis of a joint enterprise between the Appellant and D2. One of the grounds advanced by Mr Grounds was that there was a misdirection on the part of the Magistrate on common design. At the commencement of this appeal, Mr Cheung, for HKSAR, informed me that he conceded that the Magistrate had misdirected himself in this respect. He referred me to R v Powell (Anthony) and Another [1997] 3 WLR 959 and directed my attention to the second holding on p.959 of the report, as follows :

" (2) Allowing the appeal in the second case, that where one party departed completely from the concerted action of a common design by forming an intent to kill involving the use of a weapon and acted in a way no party to the common design could suspect, the other parties were guilty neither of murder nor manslaughter; that the trial judge's direction was defective, in that it was not qualified by a statement that if the jury considered that W.'s use of the knife was an action on W.'s part which E. did not foresee as a possibility then E. was not guilty of murder; that, further, since the unforeseen use of the knife would take the killing outside the scope of a joint enterprise the jury should also have been directed that E. was not guilty of manslaughter; and that, accordingly, the conviction should be quashed."

Mr Cheung submitted that the Magistrate should have directed himself on the question of foreseeability on the part of the Appellant that a loudhailer would possibly be used by D2.

11. Mr Grounds submitted that the event was a spontaneous eruption of violence and not an expedition pursuant to any form of agreement or planning, and therefore the Magistrate should have directed himself on whether the Appellant foresaw the use of the loudhailer by D2. I accept the submissions of both Counsel, especially in view of the finding by the Magistrate himself in the passage I just quoted which is D2's striking PW1 on his head before the Appellant became physically involved in the incident. The Magistrate should have given himself a clearer direction as to the law of common design or joint enterprise in such circumstances, and from his Statement of Findings he apparently failed to do so.

12. I would therefore allow the appeal to the extent of quashing the conviction of the Appellant regarding wounding under s.19 of the Offences Against Person Ordinance, but I would substitute an alternative offence of common assault against the Appellant on the basis of the clear evidence before the Magistrate that he kicked the victim PW1 once.

13. Appeal allowed, conviction of wounding quashed, a conviction of common assault substituted. As the Appellant has already served over one-third of the sentence which was 160 hours of Community Service Order, I alter the sentence to be commensurate with the culpability of the lesser offence and allow him to be no longer liable to continue with the Community Service Order, which is to be terminated.