THE QUEEN v. CHAN YIN-KI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 640 OF 1988

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J U D G M E N T

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1. The Appellant was jointly charged with his brother with having assaulted a Mr. Kwong Wing-kee thereby causing him actual bodily harm. Both pleaded not guilty and were represented by Mr. Owen who also appears for the Appellant today. The Appellant's brother was acquitted whilst the Appellant was found guilty of the lesser offence of common assault.

2. The evidence led before the learned magistrate police officer and a medical certificate which went in as agreed evidence. No evidence was called for or on behalf of the defence.

3. The evidence of the victim was that he had worked for the Appellant and his brother several weeks before this incident which occurred on the 1st of February 1988. At some time during that day the victim and the Appellant had a dispute but there was then no assault. Later, at about 9 p.m. when the victim was at a rubbish collection point collecting cardboard, the Appellant came to him and began beating him with a plastic tube. As a result of the assault he suffered a broken leg and a cut to one hand which required several stitches. The medical report confirmed that he did in fact sustain quite serious injuries. The victim said that although several other persons were present at the time, the Appellant was the only one to assault him.

4. PW2, a police officer who investigated the victim's complaint, said that after taking a statement from him, he made enquires regarding the whereabouts of the Appellant and his brother and located the brother on the 4th of February. He asked the brother to come to the police station and he agreed to do so when he could get free from his shop. PW2 returned to the police station where he was joined by the victim. The Appellant's brother did not arrive as expected and as a result PW2 in the company of the victim went to look for him. As they were leaving the police station they encountered the brother, who was then on his way to the station.

5. The victim immediately said to PW2: "it is he who assaulted me". Later the Appellant also came to the police station.

6. In cross-examination, PW2 said that he seized a rusty spade from the scene of the alleged assault as the victim said that it had been used by someone to attack him.

7. The defence case, as revealed by cross-examination of the victim, was that he had mistakenly identified the Appellant as his attacker

8. The learned magistrate found the Appellant's brother not guilty because the victim, in his evidence, made no mention of him as a participant in the assault. She had a doubt as to whether the Appellant caused the serious injuries found on the victim so she acquitted him of the offence of the assault occasioning actual bodily harm but found him guilty, as I mentioned earlier, of the lesser offence of common assault.

9. Mr. Owen has put forward a numer of grounds of appeal but I find no substance in those which attacked the learned magistrate's approach to the issue of identification. What has concerned me is the way in which the learned magistrate dealt with the inconsistency between what the victim said in evidence about the Appellant being his only assailant and his statement to PW2 that the Appellant's brother was his assailant.

10. Dealing with this inconsistency the learned magistrate said this: "I gave consideration to the inconsistency in the evidence of PW1 and PW2. PW1 said the Appellant assaulted him with something like a plastic tube whereas PW2 said that PW1 pointed out the Appellant's brother as the one who assaulted him and also seized a spade at the scene as a weapon used to assault him. I did not find this to be inconsistent at all because I find it reasonable to believe that PW1 had made an honest mistake in that he had omitted to give evidence on the Appellant's brother and on the spade used to assault him when he gave evidence; and that this was not inconsistent with the evidence of PW2 above. And when he said he had subsequently arrested both the Appellant's brother and the Appellant after investigation of the case. Although I found that there was doubt that it was the Appellant's brother who assaulted PW1 with a spade, since PW1 did not mention this in his evidence, and so I found that there was no case for the Appellant's brother to answer. And yet I found that the Appellant had been properly identified as the person who had assualted PW1 at the place and at around 9 p.m. on the date mentioned in the charge".

11. The inconsistency is not, as the learned magistrate says, an inconsistency between the evidence of PW1 and that of PW2. The inconsistency is between what PW1 said to the police officer and what PW1 said in evidence in Court. It seems to me that the learned magistrate accepted the evidence of what the victim said to PW2 regarding the Appellant's brother's attack upon him with a spade, not as evidence of PW2's "verbal conduct" but as evidence of an attack upon him by another. She did not, of course, act upon it as evidence implicating the Appellant's brother in the attack, but she does appear to have accepted it as evidence capable of proving that there was such an attack, in considering the Appellant's case. Otherwise, she could not have found that "PW2 omitted to give that evidence".

12. The learned magistrate may, therefore, have been influenced by evidence inadmissible for the purpose for which she there used it. As a result one cannot be sure that her decision, although otherwise backed by careful reasoning has been safely reached.

13. It is for that reason that I find the conviction unsafe, allow the appeal and quash the conviction and sentence.