R. v. CHANG HOI TO and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1041 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against convictions for assault occasioning actual bodily harm, claiming to be a member of a triad society and criminal intimidation. It was also an appeal against a total sentence of six months in relation to the 1st Appellant and three months in relation to the 2nd Appellant.

2. The evidence was that on 31st May 1995 at 3:00 p.m., the victim of these offences, Madam Tsang Lai Kuen, the proprietor of a property agency at 9D Seymour Road, was in her premises when she was visited by the two Appellants and another person. They quickly made it known to her that they were there to collect a debt owed, they said, by a company of which she was a former shareholder called Kong Ying. Madam Tsang claimed that they became abusive and violent and assaulted her when she refused to acknowledge the debt, and that both Appellants joined in this assault. Thereafter, she testified that the 1st Appellant claimed to be a member of a triad society, and threatened her and her family if the debt was not paid.

3. She testified that she was hit by a file, kicked in the abdomen, struck on the shoulder, head, and corner of the mouth repeatedly, and to such an extent that she thought she would be seriously injured if they did not stop. She told them she was pregnant and only then did they desist from their assault. The medical report describing Madam Tsang's injuries related that she had a "mild abrasion over left upper lip". The learned Magistrate said this about the medical report :-

"A medical report was admitted into evidence. A mild abrasion was noted over her left upper lip. That is consistent with her description of the way she was struck by D4. In cross-examination she describes the blows as 'hard'. Victims who describe the force of blows give a purely subjective opinion. What may be 'hard' to one victim may not necessarily be so to another. Not every blow which a victim may describe as 'hard' would necessarily leave marks on the body. For that reason the Court found no inconsistency between what PW1 describes in 'hard' blows to head, shoulder and abdomen and the medical reports' failure to reveal any marks other than the abrasion over her lip."

It was my view, with respect to the learned Magistrate, that there was a total inconsistency between the recorded evidence of PW1 and the medical report which was an exhibit in the case. Had Madam Tsang been assaulted to the extent to which she claimed, injuries found upon her would have been much more serious than those actually found.

4. Furthermore, Madam Tsang claimed that she had become desperate as a result of the attentions of the Appellants, and that when she saw a boy outside the glassdoor of the office, she had shouted for help and waved at him. Thereafter, however, she related that a staff member with several customers came back to the company premises and were in the premises for some time, and would have seen that the premises had been seriously disturbed as a result of the fracas. She made no effort to enlist the aid of the staff member or her customers but said she led D1 into a room asking him not to affect her customers. This serious inconsistency in Madam Tsang's evidence was simply not discussed by the learned Magistrate in his findings.

5. Overall, I was concerned that the learned Magistrate had glossed over matters in evidence which should have caused him to pause before accepting Madam Tsang as a witness upon whom he could rely. As he said :-

"The prosecution case depends wholly on the credibility of PW1."

It has to be remembered that these events took place in Madam Tsang's office which had a glassdoor leading onto the street, so that members of the public passing could have seen what the Appellants were doing. There was also the matter of the length of time it took Madam Tsang to report the matter to the police, and the fact that the 1st Appellant appears to have left his name and telephone number with her when he left her premises.

6. Taking all these matters into account, I found I had a lurking doubt about the conviction in this case and therefore I allowed the appeal.