(Appellate Jurisdiction)





Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 19 July 1994

Date of delivery of judgment: 19 July 1994




1. On 24th January 1994 at Western Magistrates’ Court, the Appellant was convicted, after pleading not guilty, of two charges. The firstwas criminal intimidation, and the second was common assault. He was sentenced to 9 months’ imprisonment and 3 months’ imprisonmenton each charge respectively, to be served concurrently with each other, making 9 months’ imprisonment in all. He now appeals againsthis conviction and sentence.

2. The Crown’s case depended entirely on the evidence of a public light bus driver, PW1. His evidence was that he had been approachedby the Appellant from another public light bus which was stationary. The Appellant swore at him, accused him of blocking his path,and threatened to assault him the next time the Appellant saw him. The Appellant then opened his door, switched off his ignition,and punched him on his chest. After dropping off his passengers, PW1 reported the matter to the police.

3. The magistrate concluded that identity was not an issue in the case. PW1’s evidence had been that he had seen the Appellant two orthree times before, because they both drove in the Aberdeen area. This evidence was not challenged by the Appellant’s counsel, andthe Appellant elected not to give evidence. Accordingly, the combination of the facts that (a) this was a case of recognition, ratherthan identification, and (b) the opportunity which PW1 had to see his assailant could not be characterized as a “fleeting glimpse”justified the magistrate in her view that this was not a case for a Turnbull direction.

4. The magistrate was invited to acquit the Appellant on the basis of various inconsistencies in the witness statements which PW1 hadgiven to the police, and between those statements and the evidence which PW1 gave in court. The magistrate heard PW1’s explanationsfor those inconsistencies, and having heard those explanations, she did not regard PW1’s credibility and reliability as a witnessas damaged in any way. In my view, that was a view she was entitled to take on the evidence.

5. Three particular points are taken by Miss Chow on behalf of the Appellant. The first is that the magistrate found that PW1 was reluctantto give the court a full account of what had occurred, though the magistrate added that she believed that that was because of PW1’sfear of reprisals, rather than because he was making his evidence up. Miss Chow challenges that finding. Whether there was materialupon which the magistrate could reach than finding, the fact of the matter was that it was for the magistrate to assess PW1. Sheassessed PW1 as a witness of truth, and I cannot interfere with that finding.

6. Secondly, Miss Chow criticises the magistrate for failing to take into account the fact that the person who PW1 claimed in evidencehad accompanied him to the police station was different to the name given by PW1 in one of his witness statements. The magistrateclearly had that discrepancy in mind, because she referred to it in para. 8 of her Statement of Findings, and the fact she did notrefer to that discrepancy again in no way shows that her evaluation of the evidence was either suspect or incomplete.

7. Thirdly, Miss Chow criticises the magistrate for asking PW1 a number of questions after the prosecutor had decided not to re-examinePW1. It is vital, of course, for a magistrate not to adopt the role of advocate, but the questions which the magistrate asked werein no way slanted. They were questions which were highly pertinent to the facts which the magistrate had to decide. In my view, thecriticism of the magistrate for the questions she asked is wholly unjustified.

8. There is, therefore, nothing in the criticisms leveled against the magistrate, nor is there anything in the case which causes meto have a lurking doubt about the Appellant’s guilt. The appeal against the convictions must, therefore, be dismissed.

9. The Appellant was 25, and apart from a conviction for gambling in 1987 this was his first brush with the law. There was no suggestionof any triad involvement in the offences. Indeed, on what the Appellant accused PW1 of doing – blocking his path – it was a caseof an incident between two drivers in which one of them lost his temper. I think that the magistrate was entitled to take the viewthat a short sentence of imprisonment was justified, but I regard sentences of imprisonment totaling 9 months as manifestly excessive.Indeed, I would describe them as savage. In any event, the magistrate fell into error in saying that she was sentencing the Appellanton the second charge for an offence of assault occasioning actual bodily harm. The offence for which she was sentencing him was commonassault.

10. In view of the fact that the Appellant has heard the clang of the prison gates – because he was in custody for 9 days before beinggranted bail by Wong J. – I propose to shorten considerably the sentences imposed by the magistrate and to suspend them. The sentenceon the first charge will be one of two months’ imprisonment. The second on the second charge will be one month’s imprisonment. Thosesentences will be served concurrently with each other. They will both be suspended for a period-of 12 months. To that extent, thisappeal is allowed.

(Brian Keith)
Judge of the High Court


Mr. W.S. Cheung, S.C.C., for the Crown.

Ms. Juliana Chow inst’d by Messrs. Terry Yeung & Lai for the Appellant.