HKSAR v. HO KIU ANDY

HCMA 1077/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1077 OF 1998

(ON APPEAL FROM NKCC 493 OF 1998)

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J U D G M E N T

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1. The Appellant was charged and convicted in respect of the following offences:-

1st charge :	Criminal damage;
2nd charge :	Claiming to be a member of a triad society, namely 14K Triad Society;
3rd charge :	Assault occasioning actual bodily harm;
4th charge :	Resisting a police officer, PC 970, in the due execution of his duty; and
9th charge :	Assaulting a police officer, Sergeant 22442, in the due execution of his duty.

2. The Appellant applied for leave to adduce further evidence to include taped telephone conversation between the Appellant's girl friend and Leung Chi On alias Ko Lo pursuant to S. 118(1)(b) of the Magistrate Ordinance, Cap. 227 which provides:

"... ... If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under paragraphs (a), (b) and (c ) of section 83V of the Criminal Procedure Ordinance (Cap. 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, and the judge may issue any process necessary for enforcing the exercise of such powers;"

3. The test as to whether additional evidence should be allowed is:

"(a) the evidence sought to be called must be evidence which must have raised a reasonable doubt if given at the trial; and

(b) the evidence sought to be adduced could not have been made available at the trial by the exercise of due diligence."

4. See Mabel Lee alias Lee Shiao Mai (No. 2) [1964] HKLR 12.

5. The telephone conversation had already been taped before the hearing. The Appellant was aware of the telephone conversation. He was represented by counsel and in his testimony he did not mentioned anything about the telephone recording. If it were the intention to adduce such evidence, it was ready and available but the Appellant's counsel had seen fit not to adduce such evidence. The evidence was not one which could not have been made available at the trial by the exercise of due diligence. In the premises I refused the application.

FACTS

6. All the changes arose out of one incident which happened in the early hours on 16th January 1998. The Appellant and his two friends (co-accused) came out of the lift of a building, Appellant then suddenly pushed a number of flower boards or arrangements to the ground and thereby damaged the flower boards/arrangements. PW1, a civilian, was there and looked at the Appellant. The Appellant accused PW1 of staring, claimed himself to be a member of 14K (a triad society), pushed PW1 to the ground, threw a flower board at PW1 thus injuring PW1. Then a group of police who happened to petrol and check a sauna establishment on the ground floor arrived and saw what happened and arrested the Appellant who resisted and struggled. After Appellant was subdued he was taken to a police vehicle where the Appellant refused to sit still and suddenly bit Sergeant (PW7) on his leg.

7. The Appellant gave evidence to the effect that on the ground floor one of the co-accused jokingly pushed him and he lost balance and knocked down some of the flower boards. Then police came up grabbed him by the arm and demanded him to say which triad society he belonged. When he refused he was heavily beaten. Later inside the police vehicle he was further beaten up. After he was given bail the tall guy "Ko Lo" the manager of the night club he visited telephoned him and he later met the tall guy who told him he knew those police officers. Tall guy urged the Appellant not to go to the doctor to examine his injuries and not to complain against the police. So he did not go to see a doctor to have his injuries examined until after 19th January 1998 after he consulted a lawyer. He also gave evidence to the effect that on 23rd March 1998 in North Kowloon Magistracy he was assaulted by the tall guy and another man and forced him to withdraw his complaint against the police and to admit the charges. These two persons were later arrested.

8. The grounds of appeal were that the learned magistrate erred in not considering the evidence relating to the tall guy and also that the learned magistrate had failed to properly considered the evidence of the medical report regarding his injuries.

9. In his findings at p.21, para. 5, the learned magistrate found as a fact that PW1 was there at the scene and was assaulted and this was supported by the medical report. He accepted the evidence of PW1. PW1 at p.41D said Appellant pushed the flower boards on to the ground and damaged the flower boards. At p.42E-G PW1 described how he was assaulted and then at p.47D-K PW1 described how Appellant claimed himself to be a member of 14K (a triad society).

10. The magistrate's finding was based on facts which he accepted. I cannot see how his finding can be flawed. In the premises the appeal in respect of the 1st, 2nd and 3rd charges is dismissed.

11. As to the 4th and the 9th charges, the learned magistrate at p.23, para. 9 of his Statement of Finding held that the tall guy did exist, but because he did not come forward to give evidence so he could not consider any evidence concerning him. No doubt whatever that was allegedly said by the tall guy was hearsay but the learned magistrate after making a finding that the tall guy did exist should have considered evidence concerning him.

12. At p.22, para. 8, the learned magistrate ruled that according to the medical report the Appellant's injury was rather serious. He had to consider whether the injuries were caused by the police beating him up as he alleged. The learned magistrate then at the end of that paragraph he asked himself if the injuries were serious, why did he have to wait for three days before seeking remedy. With respect this finding was not logical. What the learned magistrate hinted or indirectly suggested was that some injuries were self inflicted. It was impossible to make such finding as the doctor who made up the medical report was not called to give evidence, hence the age of the injuries were not canvassed and hence there was no basis for the magistrate to make such suggestion or finding. Coupled the fact that the 2nd and 4th witnesses' evidence were different from the evidence of PW5 and PW6 and that was not dealt with by the magistrate. Further there were some discrepancies between the evidence of PW2 and PW4.

13. For reasons aforesaid, it is unsafe to convict in respect of the 4th and the 9th charges. The appeal in respect of those two charges is allowed, conviction and sentence set aside.