HKSAR v. CHOW CHUN

HCMA696/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO.696 OF 1998

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J U D G M E N T

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1. The Appellant was convicted after trial of assault occasioning actual bodily harm and sentenced to 2 months' imprisonment suspended for 3 years, and to pay compensation of $5,000. He appeals against conviction.

2. In brief, the evidence for the prosecution was this. PW1 worked for a company called Ying Wah Consortium. Her boss PW2 ran the company. The company was in dispute with a Joy Long Company of which the Appellant was a consultant. On 5th February 1998 at about 9 a.m. when PW1 was going to work someone tipped a bucket of red paint over her head, causing her actual bodily harm. She did not see who did it, but PW2, who was in the lobby of the building as she approached, saw what happened and identified the Appellant as the culprit.

3. The Appellant gave evidence that he was not there at the time. He was at home, in the process of getting up and having his shower. His colleague Chu telephoned him at that time; the telephone showed Chu's number; he told his wife to tell Chu he would call later, and this he did. He called his wife as a witness. Her evidence was to the same effect. Chu was not called.

4. The learned Magistrate, having heard the case and considered all the evidence, convicted the Appellant.

5. The Appellant appeals on the ground that the conviction is unsafe and unsatisfactory. He relies firstly on the fact that the learned Magistrate, though he heard evidence of the Appellant's good character, did not give himself any good character direction in his Statement of Findings; and secondly on various discrepancies between the evidence of PW1 and that of PW2 and other evidential points.

6. It is true that the learned Magistrate did not include a good character direction in his Statement of Findings. As a professional Magistrate his failure to do so would not of itself make the conviction unsafe or unsatisfactory. An appellate court would act on the basis that he was aware of the character evidence and gave it the weight it thought it deserved unless there was some express or implied indication otherwise: see R. v. Fok Tin-yau [1995] 2 HKC 450.

7. The Appellant however argues that there is, in this case, such an indication that the learned Magistrate did not consider the good character evidence in that he said, quite simply, that the Appellant raised two defences, the first being that the Appellant had simply not been at the scene and PW2 had been mistaken in his identification, or alternatively had manufactured the evidence that the Appellant was involved as part of the ongoing dispute between the two companies. The second defence was that of alibi. In other words, he should have mentioned the good character evidence at this point.

8. With respect, I do not see how this can be argued. Good character is not a defence. It is something which has to be borne in mind by a jury or a single judge as affecting the credibility of a defendant and his propensity to commit the offence.

9. Mr Kwong for the Appellant says that because the Appellant gave evidence not just of his simple lack of previous convictions, but as to his position as a salaried consultant with the Joy Long Company, earning $60,000 per month, the learned Magistrate should have directed himself specifically as to the effect of this on the Appellant's propensity to commit the offence. In effect the argument is that as a salaried employee he would be unlikely to throw a bucket of paint over the employee of a rival company to that of his employer and the learned Magistrate should have given himself a specific direction on this.

10. A good character direction, following R. v. Berrada [1990] Cr. App. R.131 and R. v. Vye [1993] 1 WLR 471 is a direction to the effect that the jury should have regard to good character as it affects credibility and propensity. The propensity direction is to the effect that the jury should consider the fact that the defendant has reached the age he has reached without hitherto falling foul of the law. It is a general direction.

11. With respect, I think that the direction, the lack of which is complained of by the Appellant, is a more particular direction relating not to the Appellant's good record and his age, position in life and so forth, but rather relating to his specific position with the Joy Long Company. It is not really a good character direction in the usual sense.

12. Even if the learned Magistrate had given himself the direction in the usual terms addressed to a jury he would still have had to consider the likelihood that the Appellant would commit this offence given his position with the Joy Long Company.

13. In fact it appears that the learned Magistrate was alive to this issue. One of the two main defences to which he referred was either that PW2 was mistaken in his evidence that he had seen the Appellant, or that he had entirely manufactured the evidence that the Appellant was involved as part of the ongoing dispute between the two companies. As to the second of these he said as follows :-

"[PW2] acknowledged frankly the existence of the dispute between the two companies. His evidence as to the nature of the dispute was not challenged and, having regard to the fact that the dispute was with the Appellant's employer, and not the Appellant personally, I did not find the existence of the dispute to be such as to raise a doubt in my mind as to the truth of Mr. Chik's evidence."

14. Later on in dealing with the evidence of identification, he said that he was cautious about the identification having regard to the background circumstances between the parties.

15. I turn to the various discrepancies and other points noted by Mr Kwong. Some of them are mentioned in his grounds of appeal, and some are not.

16. As to the fact that there is no forensic evidence that the Appellant came into contact with paint, I do not think this assists, and in any event the learned Magistrate considered and dealt with this point.

17. It is true that there are some inconsistencies between PW1 and PW2 about the former's contact with the Appellant when he came to her employer's offices on 15th and 22nd December 1997. I do not see that these are of much importance and in any event they were to do with the dispute between the companies which was something the learned Magistrate considered in evaluating the evidence.

18. With regard to the incident itself, there are some discrepancies between PW1 and PW2. She says that she was walking uphill on Wyndham Street. She did not see her assailant; she was wearing a coat with a hood and the hood was up. She was looking down as she walked. She thought he came from her side and had been stationary. After the assault, people came to her assistance; a woman made a call on a mobile phone and then PW2 and another person from the company came, within 5 minutes of the assault.

19. PW2 on the other hand says that he saw the Appellant outside the building; the Appellant then rushed down the hill towards PW1 and threw the paint over her. PW2 gave chase and when he lost the Appellant at Queen's Road, he returned to where PW1 was.

20. At first glance it seems that these discrepancies have some bearing on the question of whether PW2 saw the incident at all. However a woman wearing a hood, walking uphill and looking down might not see a man rushing down towards her, in the circumstances described by PW2; and the fact that PW2 arrived after a telephone call was made does not necessarily mean that he arrived in response to it.

21. In any event the learned Magistrate considered the credibility of PW2 against the question of the dispute between the two companies. He also considered the credibility of PW2's evidence of identification in that he was cautious about it having regard to the background.

22. The learned Magistrate clearly did not, as has been suggested, put the onus on the Appellant to establish an alibi. He properly considered the alibi evidence including the unexplained fact that that alibi evidence had only come to light when it was raised at the hearing. His rejection of it was a matter for him.

23. It is not the function of this court to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript. See R. v. Li Chun-yue, Cri. App. 240 of 1996. What I must do is ask whether the learned Magistrate's evaluation was absent, irrelevant, lacking, careless or flawed in any way. Overall I do not see that it was.

24. Accordingly the appeal is dismissed.