HKSAR v. LIU CHUN FAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 34 OF 1998

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REASONS FOR JUDGMENT

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1. The appellant and another man were jointly charged and convicted after trial before a magistrate of a charge of assault occasioning actual bodily harm. Each was sentenced to one month's imprisonment suspended for twelve months and ordered to pay compensation in the sum of $2,500. He now appeals against conviction.

2. This incident arose over the display of a poster by the appellant and another man, who were D1 and D2 at the trial, inside Elizabeth House. PW1 was the caretaker of the building and it is not in dispute that he and D1 and D2 took a lift together at Elizabeth House travelling from the 4th floor to the ground floor. Whilst inside the lift D2 took off a poster that was displayed there. The lift arrived at the ground floor and the three men got out. D2 then put up the poster outside the management office.

3. What is in dispute is that PW1 remonstrated with D2 over D2's dealings with the poster. The appellant, who was D1, came forward and hit PW1 with a mobile telephone. D2 joined in the assault and also hit PW1 with a mobile telephone set. This happened at the doorway of the office and PW1 tried to fend off the assault and managed to grab hold of D2. He pulled D2 into the office. At this point, the appellant also entered and the struggle continued in the office. One of the blows landed on PW1's head causing him to bleed profusely. PW1's right forearm was also scratched during the scuffle. When PW1 asked his colleagues to call the police, the appellant shouted that he was 'Tor Di' and the police should not be called. The police was not called as a result. Later the appellant asked PW1 to release D2 otherwise he would be further assaulted. By then, PW1's colleagues had reported to the police and PW1 released D2. Both defendants then left the office. PW1 followed them and managed to alert a passing police vehicle. He also caught the appellant. D2 ran away but he was subsequently arrested by the police.

4. The appellant and D2 elected to give evidence. Their account was that PW1 scolded D2 in foul language over his putting up the poster outside the office. PW1 had even grabbed D2 by the shirt and arm. There was a struggle when the appellant tried to separate PW1 and D2. PW1 grabbed hold of the appellant and then approached to pounce D2. At that point of time, D2 threw his mobile telephone set at PW1 hitting PW1 on his head. PW1 pulled D2 into the office. The struggle stopped because of lack of space inside the office. There was an argument between D1 and PW1. PW1 refused to lose his grip on D2 and the appellant suggested to call the police. PW1 replied that he was a police officer. Eventually, PW1 released D2 and both he and the appellant left. They were followed by PW1 who attracted the attention of a police vehicle. Both D2 and the appellant were arrested.

5. The magistrate accepted the evidence of PW1 and other prosecution witnesses. He rejected the evidence of D2 and the appellant and found the case proved against them.

6. It was argued on behalf of the appellant that the magistrate did not or did not sufficiently take into account a number of matters as particularized in the perfected grounds of appeal. It is not necessary for me to go into the details. In so far as the first ground is concerned, all the arguments relate to the issue of credibility. The magistrate had considered the evidence of PW1 carefully and he accepted it bearing in mind the discrepancies and inconsistencies. He had the additional advantage of seeing the witnesses and observed their demeanour. This ground must fail.

7. The second ground of appeal reads:

"That in adjourning what he had described as an interesting case for eight days the learned magistrate should have been in a position to more fully evaluate the evidence, conflicts and defence case."

I can see nothing in this ground. The magistrate had fully and carefully evaluated the evidence and it was only after he had done that he reached his decision.

8. The third ground of appeal is:

"That in his statement of findings the magistrate accepted some of the points made by the defence. See the 2 aspects page 107 but erred in the way he failed to apply them, whilst he failed to deal with the others."

These concerns PW1's evidence that he was scratched on the inside of his right forearm during the assault and PW1 said that he was a police officer. On the question of the injury, the magistrate accepted the submission of defence counsel that PW1 had exaggerated. On the second aspect, PW2 confirmed that PW1 in fact said to the two defendants that he was a police officer. Again the magistrate accepted that PW1 had in fact said that he was a police officer. But this does not mean that the magistrate was bound to rely on these two pieces of the evidence to reject PW1 as an honest and reliable witness. He had to consider the evidence as a whole before he could come to his decision on credibility. He did consider all the evidence and he was entitled to accept part of the evidence of a witness while casting doubt on some aspects. There is no merit on this ground and it also fails.

9. The fourth ground is:

"That he gave too much weight to the evidence that D2 ran away and was wrong to apply that to the case of D1 (the appellant).

10. The magistrate was fully aware that only D2 ran away when he was chased. When he said: "D2 ran away for no reason other than guilt", he could only have referred to D2 and not D1. There could be no room for any confusion or misunderstanding. This ground fails.

11. For these reasons, the appeal is dismissed.