HCMA 582/2010








HKSAR Respondent



Before: Hon Mackintosh J in Court

Date of Hearing: 9 September 2010

Date of Judgment: 9 September 2010

Date of Reasons for Judgment: 5 November 2010




1. At the conclusion of the hearing of this appeal, I dismissed the appeal. I said I would hand down reasons for the dismissal later.These are those reasons.


2. The Appellant was convicted after trial by a Magistrate of an offence of wounding contrary to section 19 of the Offences Against the Person Ordinance, Cap 212. He was sentenced to 10 months’ imprisonment. This appeal is against conviction only. Although he was represented byprivately instructed solicitors and counsel at the trial before the Magistrate, he has appeared in person before this court. Nogrounds of appeal have been lodged other than the standard, general ground that the conviction was against the weight of the admissibleevidence.

3. However, at the hearing of this appeal, the Appellant submitted two annotated copies of the statement of findings marked as A1 andA2 highlighting what he said are mistakes in the Magistrate’s description of the evidence and/or in the translation of the evidencefrom Punjabi before the Magistrate. He added some oral arguments which he wanted to make. Amongst the documents he submitted waswhat amounts to his proof of evidence, that is, his version of events. I have marked this for identification purposes as A3.

4. I can say at this point that having examined the Appellant’s annotated versions of the Statement of Findings, A1 and A2, I amsatisfied that there is nothing of significance in what he alleges to be mistakes in the record or the translation from Punjabi. I am further satisfied that I can properly work with the Magistrate’s Statement of Findings as the record of the proceedings. It is supplemented by a transcribed extract from the closing submissions of counsel for the Appellant which I have noted. The Appellant’ssomewhat unfocussed oral submissions in this appeal have, at times, bordered on being fresh evidence. As an unrepresented litigant,he is to be forgiven for not being aware of all the rules and procedures of an appeal such as this, and I have given him a good dealof licence in this regard. For example, he has suggested that perhaps, PW1 received his wounds by hitting his head on a wall. Thatwas not an issue at trial – it was not so suggested by counsel to PW1 and the Appellant himself did not allege it in his evidence:the Appellant seems now to be saying that it ought to have been raised on his instructions to his lawyers; but he is by no meansclear as to that, and some of his submissions on these matters have not been consistent. I am satisfied that there is no basis forexploring such an issue further in this appeal.

The alleged facts

5. The offence was alleged to have occurred on the 15 February 2010 in Room 5 on the seventh floor of a block Nathan Road, Kowloon:and the charge was expressed in terms of the offence having been committed in with another person of unknown identity. The prosecutioncase was that the Appellant struck PW1 over the head with a saucepan causing lacerations.

6. The prosecution called as witnesses the complainant, PW1, Cheung Hon-ming, and PW2, his wife. Their evidence is to be judged againsta background of facts admitted pursuant to section 65C of the Criminal Procedure Ordinance to the following effect: that PW1 and PW2 were the landlords of the room in question, which was occupied at the material time bythe Appellant and a friend. It was also admitted that on the day in question, PWs 1 and 2 had gone to collect the rent. Althoughthe facts of what then occurred whilst they were there were in dispute, medical evidence was admitted to the effect that when hewas medically examined later the same day, PWI was found to have suffered a head injury, which, aside from some general minor injuries,included two 2-centimetre lacerations on the left side of his forehead. A medical report in respect of the Appellant was also admitted. He was medically examined and was found to have some erythema, that is redness, to the forehead and face and some bruising to hisleft hand and abrasions on his chest, knee and arm. The Appellant testified at the trial but did not call any witnesses.

7. PWl’s evidence, which was accepted by the Magistrate, was in gist that initially there was no response when they knocked on thedoor; but they were told by a neighbour that someone was inside and, as a result, PW1 knocked more forcefully on the door which wasopened in by the Appellant, who is a man of Pakistani ethnic origin. PW1 and PW2 alleged that he used foul language and then grabbedPW1 by the arm and pulled him into the room, leaving PW2 on the landing – she said she used her leg to stop the door from beingshut. PW1 testified that inside the room, the Appellant took hold of a saucepan with which he hit PW1 over the head, causing thelacerations to which I have referred, and which were the subject of the charge. Inside the room was another male, also of Pakistaniorigin, who was referred to at trial as the Appellant’s “friend”; PW1 alleged that he had been kicked by this man. He didnot say that the friend had used any other violence towards him, and the contrary was not suggested in cross-examination on behalfof the Appellant.

8. PW2 was unable to see what was happening inside Room 5 because the door was nearly closed; but she managed to push it open enoughfor her husband to run out of the room towards a nearby staircase. The evidence of the PWs was that the Appellant pursued PW1 outof the room, leaving the friend inside at that time, and that there was then a scuffle on the staircase. It was common ground thatthere had been such a scuffle on the stairs between the Appellant and PW1 and that at some stage, the Appellant’s friend joinedthat scuffle which then broke up. The PWs said that after a while the Appellant and his friend fled from the scene and PW2 saidthat she then called the police.

9. The Appellant’s evidence was summarised by the Magistrate in the statement of findings to the following effect: that on the afternoonin question, he was awakened in the room by somebody hammering on the door. The door was forced open and PWI came in and slappedhim. PW1 then took a saucepan and tried to hit him and his friend, who had by then woken up. They both managed to evade PW1’sattack and they snatched the saucepan from PW1, thereby disarming him. The Appellant said that he tried to leave the room but wasprevented by PW1 from doing so. He then called the police from his mobile phone and waited in the room for a few minutes, with PW1still in the room; for part of the time, he was preventing by him from leaving. Then he managed to get out onto the landing. Hewas followed by PW1 and the scuffle took place between the two of them on the staircase. His friend later came to help him escapefrom PW1’s grasp. The two PWs and the Appellant and his friend then went down to the lobby area but as the police had not yetarrived and as PW1 was shouting, the Appellant and his friend left the scene.

10. The Appellant denied assaulting PW1 in Room 5. Although he said he had been slapped by PW1 and that PW1 had been wielding the saucepan,he did not claim to have struck any blows himself in self defence in the room; neither had his friend struck any blows with the saucepanwhich caused the wounds. His case was simply that he did not know how PW1 had suffered his injuries. It was not suggested to PW1that he had been wounded by any means other than the use of the saucepan as he alleged. In particular, it was not suggested thatthose injuries had been sustained in the scuffle on the stairs. They must therefore have been caused in the room before the incidentmoved to the staircase. Aside from PW1, the only people in the room were the Appellant and his friend. The Magistrate concluded,in the light of the Appellant’s own evidence, and that of the PWs, that he could be sure that the Appellant was not defending himselfwhen he inflicted the wounds. There is no basis to challenge that finding.

11. PW1’s evidence was that although the Appellant was one who struck him with the saucepan, the other male joined in the attack bykicking him. The violence was in the nature of a joint enterprise.

12. PW1 was asked on behalf of the Appellant whether he had mixed up the Appellant with his friend, which he denied, though it seemsfrom the closing submissions of counsel, which were not contradicted, that he also indicated that he had difficulty in distinguishingbetween persons of Pakistani ethnic origin. To this limited extent an issue of identification was raised, not as to the presenceof the Appellant at the scene, but as to which of the two Pakistanis had hit PW1 with the saucepan.

(a) No formal identification procedure had been undertaken, that is by way of an identification parade, to determine whether PW1 couldidentify the Appellant as the Pakistani male who had attacked him in the room. The witnesses, PW1 and PW2, were simply asked whetherthey recognised the Appellant in court. First-time identifications in court are the least secure and satisfactory method of identifyingsuspects. The evidence is admissible; but it is the responsibility of trial courts to ensure that its introduction does not haveany adverse impact on the fairness of the trial. No objection was taken to such a course in the present case by very experienceddefence counsel, no doubt because it was not the defendant’s case that there had in fact been any mix up in that regard: he acceptedthat he and his friend were in Room 5 at the time and did not suggest that the other Pakistani male had wielded the saucepan: hedid not know how PW1 had sustained his wounds. I judge that the Magistrate was right to conclude that there was no basis to suspectthat PW1 might have mixed up which of the two Pakistani males in the room had used the saucepan to hit him. In all the circumstances,the identification in court by PW1 was proper in this case and had had no adverse impact on the fairness of the trial. A minor issuearose as to the clothing worn by the two Pakistani males but it is clear that nothing turned on that.

13. The Magistrate was nevertheless at pains to examine the evidence of PWl in the light of the Turnbull guidelines to ensure that no mistake had been made as to which of the men had hit him. He considered timing, lighting and so forthand was satisfied that there had been no confusion by PW1 or PW2 between the two Pakistani males. The Magistrate was also able torely on PW2’s recognition of the Appellant in court (she had seen him 2 or 3 times prior to the day in question when dealing withrental matters regarding Room 5) to find that it was he who had scuffled with PW1 on the stairs; and to add that finding to PW1’sevidence that the scuffle on the stairs had been with the male who had hit him with the saucepan in Room 5.

14. In the end, the issue was whether PW1 was proved beyond doubt to be a truthful and accurate witness as to what had occurred insideRoom 5. It was a question of credibility for the Magistrate to determine. PW2’s evidence went mainly to the surrounding circumstances,including the scuffle on the stairs, where the other minor injuries suffered by both parties appear to have occurred.

15. The Magistrate made a careful analysis of the evidence of the prosecution witnesses and satisfied himself that it was coherent andlogical and consistent. He concluded that it was not biased and gave his reasons for such a conclusion. He took account of thefact that there was no evidence that when PW1 ran from the room he complained to his wife that he had been assaulted by the Appellant;neither was there evidence that she saw the injuries at that stage.

16. The Appellant’s denial that he had inflicted the wounds was rejected by the Magistrate who gave sufficiently detailed reasonsfor so doing.

17. In the end, there is nothing which undermines the Magistrate’s findings on the credibility of the witnesses whom he saw and heardgiving their evidence and whom he was therefore able to assess. Neither is there any basis upon which the Magistrate’s findingscan properly be attacked as inadequate, insufficient or otherwise erroneous. He was entitled, on the evidence, to find that theprosecution had proved that the Appellant unlawfully and maliciously inflicted the wounds suffered by PW1 by striking him with asaucepan; and that he was acting in a joint enterprise with another man at the time to attack PW1; and was entitled therefore tofind the Appellant was guilty of the offence. I am satisfied that there is no merit to this appeal against the conviction and accordinglythat it must be dismissed.

(Colin Mackintosh)
Judge of the Court of First Instance
High Court

Miss Chit, Noelle Aileen, Public Prosecutor of the Department of Justice, for the Respondent

Appellant, appears in person