R. v. MA SIU HONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.605 OF 1996

--------------------

--------------------

-------------------------

J U D G M E N T

-------------------------

1. The appellant was convicted after trial of assault with intent to rob. He was sentenced to Community Service Order for 240 hours and he now appeals against conviction.

2. The prosecution case is this. In the early hours of the morning on 10th November 1995, PW1, PW2 and PW3 were off duty police officres, walking near Tsimshatsui East area. The appellant approached them and asked why they stared at him and his friends. According to their evidence, the appellant then waved his hand to the others to come. The others did come. The appellant and the others used foul language at the witnesses. According to PW1 and PW2, the appellant assaulted PW1 and then punched him once. The appellant also made a demand that PW1 should take out the money from his pocket. In the meantime, PW3 seeing there was something wrong, sneaked away quietly and called the police. While they were all at the scene, the police arrived and arrested them. They were charged with the present offence.

3. The appellant gave evidence at the trial. He said that he had been drinking with friends and at the material time he met PW1 and PW2. He felt that PW1 was looking at him and he asked why. He said he did not assault PW1 and it was the other officer who put his hand on his shoulder and said that he was cheeky. Then PW1 claimed that he was an officer and finally slapped him in the ear and kicked him.

4. The learned Magistrate held that PW1 and PW2's statements could not have been made independently and it appeared that he took the view that PW2 had lied about it. However he was impressed by PW1's demeanour and was convinced that he was telling the truth. He was not impressed by the appellant's evidence. He also accepted the evidence of PW2 notwithstanding his lied about the statements. Having heard the evidence, the magistrate convicted the appellant but acquitted the others.

5. A number of grounds have been argued before me. The first ground is that the learned Magistrate relied too much on the witnesses' demeanour and had not given sufficient reasons for accepting such evidence. The second ground is that there were discrepancies between the evidence of the prosecution witnesses.

6. With regard to the acceptance of the prosecution witnesses, the Magistrate had this to say on p.119 of the transcript :

"Clearly it is highly undesirable for police officers to prepare their witness statements in collaboration with each other and I considered very carefully the effect of this on the credibility of the officers concerned. I was very impressed with the demeanour of PW1 and was convinced that he was telling the truth about the events which occurred during the alleged assault with intent to rob. I considered his evidence in the light of the circumstances surrounding the making of the witness statements mentioned above and I nonetheless had no doubt whatever that he had told me the truth and that I could rely upon his evidence.

As to PW2, whilst I did not accept his answer that he had not discussed the contents of the witness statements with PW1. I did believe his evidence as to the assault by D1 on PW1 and the events surrounding it."

7. In my view, it does appear that the learned Magistrate had placed a great reliance on the demeanour of PW1. He said he considered his evidence in the light of the circumstances "surrounding the taking of the witness statements". It is not clear whether in considering the evidence of PW1, apart from the witness' demeanour, he had also borne in mind the other evidence such as the officers' collaboration and the lies of PW2 about what happened at the police station. It is not disputed that the Court of Appeal had said that the demeanour of a witness can only be the last resort in the assessment of his evidence. The court should normally test the evidence against other evidence and all the circumstances of the case. The fact that the learned Magistrate referred to the identical witness statements of the first two witnesses and the circumstances surrounding the taking of the witness statements do not in my view reflect whether the learned Magistrate had tested the evidence against the circumstances of the case. One must bear in mind that PW1 and PW2 are police officers. They were trained and certainly experienced in giving testimony in court. It is therefore not surprising that the evidence of PW1 was impressive. But it would be dangerous to reply solely on demeanour. Apart from that, it does appear that the fact that there was collaboration between the two officers must be a very significant factor when it comes to assessing the evidence of PW1 and PW2. This is particularly so when the learned Magistrate held that in the fact PW2 was lying about it. There is also no reason given by the learned Magistrate as to why notwithstanding such lie he still believed that PW2 was reliable about the events surrounding the incident.

8. There are clearly discrepancies in the PW1's own evidence. In his examination-in-chief he said the appellant's left hand grabbed his right wrist and he then stepped back and asked what the appellant meant. The appellant then grabbed his wrist again and after that the appellant used his right hand to grab PW1's right trousers pocket. However, during cross-examination, PW1 said that it was his elbow which was grabbed by the appellant. That is not only a mistake in memory because in his witness statement, there was absolutely no mention about the grabbing of the elbow. One would notice that the witness statement was made very shortly after incident. At that time, we have at least three different versions as to where he was being grabbed. Apart from the two versions of PW1, PW2 in his evidence had that it was the shoulder which the appellant had grabbed hold of PW1. The learned Magistrate did not deal with that in the Statement of Findings although in his findings made immediately after the submissions of counsel at the end of the trial, he acknowledged that there were inconsistencies as to where precisely PW1 was grabbed. But he placed no importance on this since it happened so quickly and the situation was noisy and chaotic. Some confusion on such a point was not surprising. That may or may not be the case. If one bears in mind that PW1 was a police officer who made a the witness statement only hours after the incident, I should have thought that there could hardly be room for any mistake of that sort made by a police officer. The collaboration is clearly almost unforgivable for such officers. But the matter did not end there because even after the collaboration there were still discrepancies between the evidence of PW1 and PW2.

9. When one looks at the evidence as a whole, considering the discrepancies, the way in which the statements were taken by the two police officers, I think it is only fair to say that while the learned Magistrate was correct to rely in part on the demeanour of PW1, I am not at all satisfied that he had placed sufficient weight to the other matters. In the circumstances, I am left with the lurking doubt as to whether the conviction was safe or satisfactory. In the circumstances, I would, albeit reluctantly, allow the appeal, quash the conviction and set aside the sentence.

10. I do not think that this is a case which it is in the interest of justice to have a re-trial. The trial lasted for quite a number of days and it was, I must say, a matter which the learned Magistrate did not consider to be very serious. This is borne out by the sentence which the learned Magistrate had passed on the appellant. In the circumstances, I do not think I should exercise my discretion to order a re-trial. The prosecution's application is refused.