HKSAR v. CHUNG HO YIN, GARY

HCMA 470/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 470 OF 2008

(ON APPEAL FROM KTCC852 OF 2008)

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J U D G M E N T

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1.  The appellant, who was the 2^nd defendant at his trial, appeals against his conviction by Mr Jason Wan at Kwun Tong Magistrate’s Court on one charge of inflicting grievous bodily harm upon Tsang Ka Wai, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 and one charge of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

2.  Both offences were alleged to have occurred on 10 October 2007 outside Hung Tai Industrial Building at 37–39 Hung To Road.  The charge of inflicting grievous bodily harm alleged that the appellant committed the offence jointly with Lo Dat Ming, the 1^st defendant.  The other charge alleged that he claimed to be a member of the Sun Yee On Triad Society. 

3.  The 1^st defendant pleaded guilty to the joint charge of inflicting grievous bodily harm and so the trial proceeded against the appellant alone. 

The prosecution case

4.  The prosecution case on both charges depended on the evidence of Mr Tsang Ka Wai (PW1), the alleged victim of the assault and the person to whom the appellant was alleged to have claimed that he was a member of a triad society.  His evidence was that he was a transportation worker who worked for the same company as the 1^st defendant.  At around 7:40 p.m. on 10 October 2007, he was sitting in the front passenger seat of a goods vehicle, delivering goods for his company in Kwun Tong.  The driver of the vehicle was a Mr So.  When the vehicle arrived at Hung To Road, PW1 was surprised to see the 1^st defendant loading and unloading goods for another company because he knew that the 1^st defendant was supposed to be on sick leave on that particular day.  He opened the window of the vehicle, took a photo of the 1^st defendant with his mobile phone and shouted to the 1^st defendant, asking him why if he was sick he was delivering goods for somebody else.

5.  Eventually, after driving up and down the road the driver found a place to park outside the Hung Tai Industrial Building.  After the vehicle had stopped and before PW1 had a chance to do so, the 1^st defendant opened the front passenger door of the vehicle from the outside.  PW1 saw the 1^st defendant and the appellant outside the vehicle.  The appellant was holding a baseball bat.  The 1^st defendant asked PW1 why he had taken photographs of him.  PW1 replied that it was just for fun.  They began to argue whereupon the appellant used the baseball bat to hit the left eye of PW1.  The 1^st defendant then climbed into the vehicle compartment and started to assault PW1.  The appellant threw down the baseball bat, climbed onto the step on the vehicle and also started to strike PW1 with his fists.  During the course of the attack the 1^st defendant head-butted PW1.  The appellant subsequently jumped off the vehicle and picked up the baseball bat.  The 1^st defendant said, “Do you believe I will beat you to death?” whereupon the appellant had said, “I am Lo Sun (i.e. a member of the Sun Yee On Triad Society).  You wrap things up before you go.”  The 1^st defendant and the appellant had then left.  The incident lasted about a minute.

6.  PW1 reported the matter to the police.  He was taken to the Accident & Emergency Department of the United Christian Hospital.  It was admitted that he sustained “left face erythema, abrasions and swelling and nasal bone fracture”.

The defence case

7.  The appellant elected to give evidence.  He said that he was working with the 1^st defendant and another colleague that day.  He had asked the 1^st defendant to come to help him because he was short of manpower.  He was however aware that the 1^st defendant would be in breach of the conditions of his employment by taking outside work.  He had seen the vehicle in which PW1 was travelling pass by and PW1 was apparently taking photographs with his mobile phone.  He had believed that the vehicle was the 1^st defendant’s employer’s vehicle. 

8.  His evidence was that he had later noticed that the 1^st defendant was missing and had gone to look for him.  He found PW1 struggling with the 1^st defendant in the vehicle and had initially attempted to mediate by asking them not to fight but had then physically intervened in order to separate them by pulling them apart.  He had then gone back to where he had been working at 17 Hung To Road.  He denied ever holding a baseball bat or claiming to be a member of a triad society.

9.  In his Statement of Findings, the magistrate said that he found PW1 to be an honest and reliable witness who had no motive to fabricate the evidence against the appellant.  On the other hand he disbelieved the evidence of the appellant.  He gave two reasons for doing so.  He found that the prosecution had discharged the burden of proof on the two charges.

This appeal

10.  The perfected notice of appeal advanced several grounds of appeal.

11.  The first ground of appeal which was based upon the alleged rapidity with which the magistrate had delivered his verdict after he had adjourned for a week to consider it was sensibly, albeit belatedly, abandoned by Mr McGuinniety, for the appellant.

12.  The next two grounds of appeal were based upon the reasons given by the magistrate for disbelieving the evidence of the appellant, which Mr McGuinniety argued did not bear close examination.

13.  The first of the magistrate’s reasons was based upon the appellant’s explanation as to why he had left the place at which he had been working and gone to the vehicle in which PW1 and the 1^st defendant were allegedly struggling.  The magistrate said this :

“D2 [The appellant] said after he found D1 missing from the workplace for about a few minutes, he went to look for D1.  He said that before D1 was missing nothing special had happened but after D1 was missing he thought there might be something wrong.  D1 is an adult and he could leave the workplace for many reasons.  It is unreasonable for D2 to stop what he was doing and to go to look for a workmate for no particular reason and with no idea where he had gone.  If D2 really wanted to know the whereabout of D1, why didn’t he simply contact him by his mobile phone?  I found what D2 said was unbelievable and I am sure he was fabricating evidence to attempt to explain why he was present at the scene.”

14.  Mr McGuinniety criticised this reasoning on the basis that the magistrate wrongly stated the 1^st defendant to be the “workmate” of the appellant when the appellant had stated that he was the supervisor of the 1^st defendant, and it would have been reasonable for the appellant, as the 1^st defendant’s supervisor, to go and look for him if he was missing from his place of work.  Furthermore, Mr McGuinniety alleged that there was no evidence that either the appellant or the 1^st defendant had mobile phones with them.

15.  It was correct that the magistrate had not referred to the appellant’s evidence that he was the supervisor of the 1^st defendant.  That evidence was only given by the appellant at the conclusion of his evidence in answer to a question by the magistrate.  The appellant ‘s evidence that he was the supervisor of the 1^st defendant had to be viewed in the context of his earlier evidence that he had asked the 1^st defendant to assist him on that day as he was short of manpower and the fact that he had described the 1^st defendant and the other co-worker as colleagues.

16.  Even if the appellant had been the 1^st defendant’s supervisor, I consider that the magistrate was entitled to take the view in the circumstances that it was implausible that, upon there being no sign of the 1^st defendant, the appellant would abandon his work and set off up the street in order to look for him after an absence, even on the appellant’s evidence, of only two to three minutes.  Even if the 1^st defendant had not asked permission to do so, that period of time was consistent with the possibility of the 1^st defendant having to go to the lavatory or having gone to buy something. 

17.  Furthermore, I find that the magistrate was entitled to infer that the appellant had a mobile telephone one him and that the appellant believed that the 1^st defendant had one on him as he admitted that he had the 1^st defendant’s mobile telephone number, and when asked why he did not contact the 1^st defendant on the mobile phone his answer was that it had not occurred to him “because that place was just walking distance away”.  It would have been reasonable to attempt to telephone the 1^st defendant rather than set out on a search for him, that might be lengthy and might not have been successful.

18.  The magistrate’s second reason for disbelieving the appellant was based upon the appellant’s evidence that he had no conversation with the 1^st defendant about PW1 taking photographs of him.  The magistrate said this :

“D2 [the appellant] admitted that he knew D1 was in breach of the rules of his company to work for him.  He also recognized PW1’s vehicle belonged to D1’s company and he saw PW1 taking photos of D1.  It is so unbelievable that D2 did not discuss with D1 about this matter.  Any reasonable person would realize that D1 might be in trouble.  However, D2 did not bother to discuss with D1 about the situation and did not even realize D1 could be in trouble.  D2’s attitude and response was so unreasonable and unbelievable.  After careful consideration, I found that D2 was not telling the truth and I rejected his evidence.”

19.  Mr McGuinniety argued that bearing in mind the appellant’s evidence that he was the supervisor of the 1^st defendant, there was no need for the appellant to discuss the matter with the 1^st defendant.  I find nothing in this point.  Even if the appellant had been the 1^st defendant’s supervisor, bearing in mind the 1^st defendant was working for the appellant at the appellant’s request and both knew that it was in breach of his company’s regulations, I consider that there would have been some discussion between them about this matter.

20.  I take this view even though the magistrate appears to have overlooked an answer by the appellant agreeing that the 1^st defendant would be in trouble if one of his colleagues had photographed him when he was working for somebody else.  Indeed the appellant’s belief that the 1^st defendant would be in trouble strengthens the inference that he would have discussed it with him. 

21.  I find that the magistrate was entitled to take the view that the appellant was not giving truthful evidence for the reasons he gave. 

22.  There are, however, other reasons which would have persuaded me that the appellant was not a truthful witness.  They included the fact that initially he had given a contradictory account of where the vehicle had been parked when he allegedly saw the 1^st defendant struggling with PW1.  Initially he said that it was in the street in front of where he was working and he had just turned round and seen the struggle.  Furthermore, the appellant was, in my view, initially evasive about his knowledge that PW1 was taking photographs and later as to the exact location where the vehicle was parked.  

23.  The final ground of appeal turned on the failure of the prosecution to call Mr So, the driver of the vehicle, who was in the vehicle at the time of the alleged assault.  As I understand it, it is argued by Mr McGuinniety that the prosecution’s failure to call the driver somehow weakened the prosecution case and that the magistrate’s comments upon the matter wrongly placed the burden of proof on the appellant.  The magistrate said this :

“The Defence contends that there was an independent witness, i.e. the driver that the Prosecution failed to call as witness and as a result there was a doubt in the prosecution case.  I disagree.  Whether to call a witness is entirely within the discretion of the prosecution.  The Court will not speculate why the prosecution does not call a witness.  Though the driver was present at the scene, there is no evidence before the Court that he had seen anything material to the case.  Someone who was present at a scene does not necessarily mean that he witnessed the incident.  If the Defence is of the view that his evidence is relevant, the Defence should call him as defence witness.  I do not be see any doubt simply because the driver was not called to testify.” 

24.  On the facts of this case, where on any version of the evidence the driver was sitting next to PW1 as he was being assaulted and on the appellant’s evidence was also trying to mediate, the example given by the magistrate of a possible reason why the driver was not called by the prosecution was perhaps inappropriate. 

25.  However, there were obviously other possible reasons why the prosecution chose not to put him on their list of witnesses other than that he would have supported the appellant’s case.  It was not for the court to speculate.  The magistrate was not saying any more than stating trite law that it was open to the defence to call him if they wished.  He was not placing any burden on the defence to do so. 

26.  I find there is nothing in this appeal and, accordingly, I dismiss the appeal against conviction.