IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 1169 OF 2005
(ON APPEAL FROM TWCC 1923 OF 2005)
Before : Hon McMahon J in Court
Date of Hearing : 21 April 2006
Date of Judgment : 21 April 2006
J U D G M E N T
1. The appellant appeals her conviction for Assault Occasioning Actual Bodily Harm, contrary to Common Law and section 39 of the Offences Against the Person Ordinance, Cap. 212.
2. The facts of the case as found by the magistrate were that the victim (PW1) was arguing with his girlfriend (PW2) outside a generalpurpose store in Tong Fuk Village on Lantau Island, when a group of males intervened and punched PW1 to the ground. The appellantwho was the proprietress of the store then approached PW1 and kicked him in the head. The appellant then returned to her store whereshe was subsequently arrested when police arrived at the scene.
3. In arriving at those findings of fact, the primary issue before the magistrate was whether the evidence of PW1 and PW2 was reliablewhen they said that the appellant kicked PW1 while he was lying on the ground.
4. The grounds of appeal advanced on behalf of the appellant by Mr Philip Wong can be summarized as follows :
5. As to the first ground, the primary inconsistencies relied upon by Mr Wong are, firstly, that PW1 said he heard the appellant admitkicking him to the police after they arrived at the scene, and secondly that PW1 said he merely got dizzy after being kicked by theappellant whereas PW2 said PW1 became unconscious.
6. The magistrate said in his Statement of Findings, regarding these and other inconsistencies in the evidence of PW1 and PW2, as follows:
7. It is plain not only that the magistrate had given considerable thought to the important inconsistencies in the evidence of PW1 andPW2 but had evaluated their importance and, where they were material, had resolved them before relying on the evidence of PW1 andPW2. In my view, the reasons he gave for resolving those inconsistencies were sufficient.
8. Merely because there are inconsistencies in a witness’s evidence or between witnesses does not mean that the witnesses’ evidencemust be rejected in its entirety. Whether the inconsistencies undermine a witness’s evidence and to what extent depends upon thenature of the inconsistencies and whether they are material or trivial. Even a relatively significant inconsistency may not preventa witness’s evidence being otherwise accepted if the court is satisfied that the inconsistency arises from some honest mistakeor is otherwise explicable from circumstances which do not impinge upon the reliability of other aspects of the witnesses’ evidence. That in my view is the situation in the present case.
9. As to the 2nd ground, the complaint of the appellant is that the magistrate concluded that he accepted the prosecution’s case before he consideredthe appellant’s evidence. That complaint arises from the order the magistrate dealt with the witnesses’ evidence in his Statementof Findings, that is, firstly the prosecution witnesses and then the appellant’s evidence.
10. It is quite plain to me that the order of dealing with the witnesses’ evidence as set out by the magistrate in his Statement ofFindings was simply one of convenience. It had no other significance and certainly did not mean in the context of the whole of themagistrate’s Statement of Findings that he had prejudged the case before considering the appellant’s evidence. There is no meritin this ground.
11. As to the 3rd ground, the appellant’s case was that after the group of males had intervened in the argument between PW1 and PW2 and punched himto the ground, she had simply remained in her shop. She attributed PW1 and PW2’s evidence against her as being motivated by adesire to frame her up after she was unable to provide information to them as to the identities of the males who had intervened intheir argument and assaulted PW1.
12. The magistrate, in rejecting the appellant’s evidence, gave reasons for doing so. He said in his Statement of Findings :
13. In examining those reasons, it is important to place them also in the context of what the magistrate had said concerning the wholeof the appellant’s case :
14. In my view, that is a cogent reason for rejecting the appellant’s case as given in her evidence. As I have said her case was thatafter PW1 had been assaulted, he had crossed the road to her shop and demanded she named the people who had been customers of theshop and who had assaulted him. She claimed when she said she did not know them, he became angry, then he or PW2 called the policeand had subsequently framed her up. This quite simply makes no sense.
15. The appellant was a stranger to PW1 and PW2. Even if by a stretch of the imagination PW1 may have been provided with a motive toframe up the appellant as a result to her saying she did not know the people who assaulted PW1, that can in no way explain PW2’sevidence that the appellant had kicked PW1. It is wholly unreal that both PW1 and PW2 would call the police and frame up an innocentshopkeeper on that basis.
16. Accordingly, the magistrate, in my view, properly found the evidence of the appellant to be unbelievable simply because, as a matterof common sense, events described by her lack fundamental reality. The magistrate had obviously considered the evidence of the appellantcarefully, his reasons for rejecting it were substantial, this final ground also cannot succeed and the appeal is dismissed.
Ms Catherine Ko, SGC, of the Department of Justice, for the Respondent
Mr Philip Wong, instructed by Messrs Lau, Chan & Ko, for the Appellant