(Appellate Jurisdiction)





  HKSAR Respondent
   NG YUE YAN (吳于欣) Appellant


Before : Hon McMahon J in Court

Date of Hearing : 21 April 2006

Date of Judgment : 21 April 2006




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 :

(1) that the magistrate disregarded various inconsistencies in the evidence of PW1 and PW2 or gave no sufficient reasons for resolvingthose inconsistencies;

(2) the magistrate decided he accepted PW1 and PW2 as reliable witnesses before considering the appellant’s evidence; and

(3) the magistrate wrongly rejected the evidence of the appellant.

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:

“10. When considering the prosecution evidence, I looked for material inconsistencies. There were some inconsistencies within andbetween the witnesses’ evidence, which I expected bearing in mind it was a fast moving incident, and these inconsistencies in theevidence confirmed to me the witnesses were giving evidence from their own perspective of the incident rather than repeating a rehearsedand false story.

11. I did not find it material that PW1 did not see the defendant initially in the incident, as I believed the defendant was behindthe group at the commencement of the assault and that is why he had not been able to see her.

12. I also did not find it material that PW1 said the group had only used fists whereas PW2 said that the group had used both fistsand kicks. I believed that when the assault started PW2 was behind the attacking group and it was only when she intervened thatshe saw the punches and kicks. This intervention, I found, started just before the kick by the defendant that rendered PW1 unconscious. I did not accept that PW2 saw kicks before that moment. I found that after the defendant’s kick, PW2 saw the group had also kickedPW1 and this is what she was referring to when she mentioned kicking.

13. I did not find it material that PW3 did not mention the admission by the defendant that she had hit PW1, as I found he was notasked about such in his evidence. I believed this admission was in fact made at a time before the police were present and not asPW1 said when they were present. I did not find this inconsistency caused me to doubt the honesty and reliability of the rest ofPW1’s evidence.

14. The inconsistency, I considered material was that PW1 said that he saw the defendant had kicked him once when he was on the groundand that she was the only one that had done so to him, whereas PW2 said that the entire group including the defendant had kickedPW1 when he was on the ground. I noted in this respect that PW1 had eventually told the court that he had not lost consciousnessafter the defendant’s kick (yet he said he had become very dizzy and had vision blurred). PW2 said that PW1 had lost consciousnessat one stage when on the ground. I believed the truth was that PW1 had seen the defendant come up and kick him in the head afterhe was pushed onto the ground and this kick had caused him to become so dizzy that he had in fact moved into an unconscious state,such that he was unaware of what else was happening to him. I found that it was during this unconscious stage that the others inthe group had also kicked PW1. I found that the explanation relating to PW1’s dizziness following the kick had also been interpretedby the doctor as PW1 falling into a state of unconsciousness. I also found that PW1 would not be the best judge of whether he hadbeen rendered unconscious, as I believed he might not have realized when he had actually fallen into unconsciousness.”

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 :

“16. I listened carefully to the evidence given by the defendant and I gave myself both limbs of the “Berrada” directionswhen so doing but even after so doing I found that I was not impressed with her evidence and I found I did not believe she was tellingthe truth about the situation. I therefore rejected her evidence when it conflicted with the prosecution witnesses’ evidence.

17. In addition to disbelieving the defendant’s evidence, I found that the defendant was inconsistent in her evidence, as Inoted that in her evidence in chief and in cross examination she initially spoke of a fight between PW1 and the group, whereas inlater cross-examination she told the court that PW1 had not responded to the violence at all. I also noted she had told the courtshe had not called the police upon seeing the fight because she was very scared, and she also said that she was very scared whenPW1 came into the store, as she did not know whether he would hit her or not. I found, however, that she was not scared by eitherseeing the incident outside her shop or when PW1 was in her shop later, because I found from her evidence that she did not back upat all, as I would have expected of a frightened woman, when PW1 was within inches of her face and was acting fiercely and abusivelytowards her. I further found it inconsistent that the defendant said she had not been involved in the fight, yet I found she hadbecome verbally hostile and abusive towards PW1 when he asked for information about the attacking group, who she maintained she didnot know.”

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 :

“9. I found it inconceivable that PW1 and PW2 would make accusations against the defendant of her kicking PW1 in the head, if thedefendant had simply been a nearby shopkeeper who had never left her shop and had never been involved in the incident. I rejectedthe assertion that PW1 and PW2 had done this as an act of revenge against the defendant because she would not give information onthe group.”

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.

  (M.A. McMahon)
Judge of the Court of First Instance,
High Court

Ms Catherine Ko, SGC, of the Department of Justice, for the Respondent

Mr Philip Wong, instructed by Messrs Lau, Chan & Ko, for the Appellant