Chan Pui Yin v. The Queen
Read the full judgment text of CACC 199/1968 on BabelCite. This Court of Appeal judgment was delivered on 30 May 1968 before Rigby S.P.J..
Criminal law – assault occasioning actual bodily harm – appeal against conviction – unsafe conviction – lack of evidence for common purpose – magistrate's failure to consider alibi evidence – bond set aside – appellant a prison warder – altercation between complainant and 1st defendant – alleged revenge attack – no evidence of common design – conviction quashed – order binding over the appellant in the sum of $250 set aside
Legal issues: Safety of conviction based on insufficient evidence and inadequate reasoning
Outcome: Appeal allowed; conviction quashed; order binding over the appellant set aside.
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CACC000199/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION Criminal Appeal No.199 of 1968 -----------------
Coram: Rigby, S.P.J. Date of Judgment: 30 May 1968 ----------------- JUDGMENT ----------------- 1. The appellant, together with three other defendants, was convicted of assault occasioning actual bodily harm. All four defendants were prison warders and evidence was given during the trial as to the good character of all of them. Upon conviction the learned magistrate directed that all four defendants should enter into bonds, one defendant - allegedly the principal offender - in the sum of $500 to be of good behaviour for 12 months and the remaining three defendants, including the present appellant, in the sum of $250 for 12 months. In view of the relatively trivial nature of the offence and the sentences imposed, it is perhaps a matter of some little surprise that the appellant should have thought fit to appeal against this conviction. However, I am informed that he is an English speaking warder and he considers - perhaps with some justification - that the conviction upon his record might well prejudice his prospects of promotion in the future. In any event there can be no doubt whatsoever that he is perfectly entitled to appeal against his conviction. 2. The brief facts of the case were these: The complainant is a fish-monger by occupation. He said in evidence that on the afternoon of the 23rd December sometime between 2 and 3 o'clock he was driving his lorry containing live fish along the road and that some of the water in the barrels containing the fish apparently was thrown up and splashed a passing taxi which was allegedly being driven by the 1st Defendant. A wordy altercation then took place between the 1st Defendant and the complainant and before they separated the 1st Defendant, according to the evidence of the complainant, uttered a threat in the words "Watch out, be careful". On the 6th of January, which would be exactly a fortnight later, the complainant, according to his testimony, was walking along the road in North Point with his wife when, without any excuse or justification whatsoever, the 1st Defendant and three other persons whom he subsequently indentified as the 2nd Defendant - who is now the present appellant - and the 3rd and the 4th Defendants, set upon him and beat him up with their fists. Subsequently they ran away and boarded a taxi. The complainant chased them and in fact stopped the taxi and later it would appear that all four defendants were taken to the Bay View Police Station. At 3.35 p.m. that same afternoon the complainant was examined at Queen Mary Hospital by a doctor and multiple small bruises were found on his face and chest and a small laceration over his right hand. At 6.25 p.m. that same day three out of the four defendants, including the present appellant, were also examined at Queen Mary Hospital, and very minor bruises or abrasions were found upon them. 3. The defence put forward was this. The 1st Defendant denied that he had at any time ever met or seen the complainant before the afternoon of the 6th of January. He said that that afternoon as he was walking along the street the complainant accosted him and presumably mistook him for some other man with whom he had had a quarrel and in fact assulted him. Fortunately the three other defendants, including the present appellant, were purely by chance in the vicinity and came to his assistance; and it is true that blows were exchanged, but exchanged only in the course of the 1st Defendant trying to defend himself against this unprovoked and unexpected attack. Thereafter he noticed that other people in the street were coming to the assistance of the complainant, one or more of them armed with poles, and he, the 1st Defendant, and the other three defendants boarded a taxi with a view to escaping. The present appellant and his co-defendants all gave evidence - the present appellant on oath and the remaining two defendants in unsworn statements - that they happened purely by chance to be at that time in the vicinity and were in fact on their way to the cinema. They saw their co-warder being assaulted and sought to go to his assistance. That, in substance, was the defence put forward. 4. The 1st defendant, with regard to the alleged incident of the 23rd December, called a more senior prison officer who gave evidence to the effect that on the 23rd December from 12 noon to 7 a.m. on the following day, the 1st defendant was in fact on standby duty at Stanley Prison. The learned magistrate, in his grounds of decision, rejected the evidence of the defendants and accepted the evidence of the complainant corroborated, as such evidence was, by the complainant's wife. He referred to what he described as the alibi of the 1st defendant and summarily rejected that alibi without giving any reason for so doing. He made two specific findings of fact. Firstly, he was satisfied that the quarrel complained of by the complainant did in fact take place between the complainant and the 1st defendant on the 23rd December. Secondly, he found as a fact that the 1st defendant did bring the other defendants, including of course the present appellant, to North Point for the specific purpose of beating up the complainant in revenge in consequence of the altercation that had taken place between the 1st defendant and the complainant on the 23rd December. With respect to the learned magistrate, there is really no evidence whatsoever that there was any common design or purpose between the 1st defendant and the remaining defendants that they should proceed to North Point for the specific purpose of looking for and beating up the complainant that afternoon on the 6th January. The finding is really one of pure speculation. 5. I am of the opinion that the evidence is really not sufficient as it appears on the record and in the finding of fact of the learned magistrate to reject the defence put forward by the 1st defendant as to what has been described as his alibi in relation to the afternoon of the 23rd of December. If the learned magistrate had given any reasons whatsoever as to why he summarily rejected that alibi the position might well be different. But he has in fact made no reference whatsoever in his judgment to the evidence of the prison officer the purpose and effect of which is, on the face of it, to show that the 1st defendant was in fact on standby duty at Stanley Prison on the afternoon of the 23rd December. It may well be that the learned magistrate in considering that evidence, if indeed he did consider it, might have expressed the view that having regard to the long period of duty, amounting to some 19 hours, it would have been reasonably possible during that period for the 1st defendant to have absented himself from this duty. But there is no suggestion of that kind in his grounds of decision nor, indeed, as I have already said, any reference to this evidence whatsoever. It would seem apparent that in considering the evidence the learned magistrate has placed considerable weight on his finding that there was this quarrel between the 1st defendant and the complainant on the 23rd December; and from that he has proceeded to what I can only describe as the first premise that all four defendants went to North Point on the afternoon of the 6th December for the express purpose of looking for, and beating up, the complainant. As to the alibi, I have already said that the learned magistrate has not given any - and certainly not sufficient - consideration to the evidence of the prison officer as to the 1st defendant being on duty at the vitally crucial period. Again, there is really no evidence at all to support the learned magistrate's finding of common purpose and intention in proceeding to North Point that afternoon for the express purpose of beating up the complainant. 6. In all the circumstances I am of the view that it would be unsafe to allow this conviction to stand. I accordingly allow the appeal and quash the conviction and direct that the Order binding over the appellant in the sum of $250.00 to keep the peace for twelve months, be set aside. 30th May, 1968. Representation: R. Young of Messrs. Ednumd Cheung & Young for Appellant. Duckett, C.C. for Crown/Respondent. (Judgment delivered) |