The Queen v. Chan Mau Sing

HCMA000988/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.988 of 1995

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Coram : Hon. Duffy, J. in Court

Date of hearing : 12 December 1995

Date of handing down judgment : 19 December 1995

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J U D G M E N T

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1. This was an appeal against a conviction for two charges of wounding, contrary to s.19, Offences Against the Person Ordinance, Cap.212.

2. It was alleged against the appellant that he had used a knife without justification to stab Choi Tin Kan and his brother Choi Tin Shing. The first of the brothers claimed that the appellant had amassed gambling debts of $80,000, and that he went along with his younger brother to collect the money. It was his story that the appellant became aggressive and violent in response to his request for the return of the money and attacked both himself and his younger brother, inflicting serious cut wounds. Medical evidence was led that both brothers had indeed suffered significant injuries.

3. The appellant's version of events was that the two brothers came to his premises, told him to close his business and then assaulted him. He said he had to use a knife in order to ward them off. It was revealed in the course of the cross-examination of the brothers that they both had bad criminal records, involving crimes of dishonesty and violence, including manslaughter. The elder brother had triad connections. This unquestionably meant that their account of the events was most improbable, or at least required the most careful scrutiny. I was not satisfied that the learned Magistrate had given sufficient weight to the fact of their criminal backgrounds. Indeed, the learned Magistrate, on the contrary, appeared to be making allowances for them because of their criminal background. He said this :

"Convicted criminals were generally very reluctant to come before a court of law, but PW1 and PW2 were not afraid and they reported the matter to the police and testified in trial which would certainly be subject to cross-examination. Further taking into account the background of PW1 and PW2, they appeared to me to be persons not of high intelligence. Hence I did not find it surprising that they could not understand and were confused by a number of questions put to them. ... Hence, even fully taking into account their previous background, I found that PW1 and PW2 were reliable witnesses and they were indeed the victims in the present case."

4. Having read the Notes of Evidence, and having seen how many discrepancies there were in the evidence of the two brothers, I developed a very uneasy feeling about this case. It was my view that no reasonable jury properly directed would have convicted the appellant in this case. I had a lurking doubt, and therefore I allowed the appeal.

5. I should add that I was disturbed to learn that the defence had not been made aware of the criminal background of the two principal Crown witnesses before the trial started. It must have been clear to whoever was prosecuting this case that the credibility of these two witnesses was very much at the centre of the matter. There should, without question, have been complete disclosure to the defence of the criminal background of the two witnesses, and any other material relevant to the matter of their credibility.

Representation:

Mr F. Veltro S.C.C. for Crown

Mr Edward Laskey (Wong, Hui & Co.) for Appellant