Florence Hsia v. Fung Bo Yuk

HCA001475/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1475 OF 1972.

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Coram: Trainor, J. in Court.

Date of Judgment: 17 January 1973

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JUDGMENT

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1. In this case the plaintiff claims $20,000 for assault. Her claim, she alleges in her Reply, would have been greatly in excess of this were it not for her innate modesty. The assault which forms the basis of this claim was also the subject matter of a private summons heard in the Magistrate's Court, Causeway Bay on the 26th day of November, 1971. In his judgment in that case the learned Magistrate said:

2. At the outset of the case before me Counsel for the defendant raised the question as to whether or not the result of the proceedings in the Magistrate's Court could be given in evidence in this Court pursuant to section 38K of the Evidence Ordinance and the matter was dealt with as a preliminary issue. Counsel argued that for section 38K to be available to the plaintiff's case there must have been a conviction. This he maintained was not the result in the Court below. He said the learned Magistrate specifically declared that no conviction be recorded against the defendant, therefore the plaintiff could not avail of the provisions of section 38K of Evidence Ordinance. I ruled against the defendant and as Counsel could not refer me to any case in point nor could I find one myself I promised to hand down a judgment.

3. The relevant part of section 38K of the Evidence Ordinance reads:

Sub-section (3) has no relevance in the present case.

4. The purpose of this section is permit documentary evidence where theretofore it was inadmissible. In other words it prevides that where prior to its enactment a witness or witnesses had to be called to prove the commission of an offence, since the enactment the production in a civil case of a conviction establishes that the offence giving rise to the civil case took place until the contrary is proved.

5. There has always been a certain amount of ambiguity about the word "conviction". I have never seen it defined. Sometimes it is used to mean the verdict of guilty, and sometimes the conclusion of a criminal case whereby the trial court becomes functus officii i.e. a verdict and the imposition of a penalty (if any). Speaking of when a conviction exists Lord Rerd said in S. (an infant) v. Manchester City Recorder and others⁽¹⁾:

"Much of the difficulty has arisen from the fact that 'conviction' is commonly used with two different meanings. It is often used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt. It is proper to say that a plea cannot be changed after a "conviction' in the former sense. But it does not at all follow that a plea cannot be changed after 'conviction' in the latter sense."

6. In any criminal or quasi criminal case there must always be a finding of guilty or not guilty. Whether such a finding of itself amounts to a conviction or not is a moot point, but the question does not arise here because in the instant case the learned Magistrate found the accused guilty and went on to conclude the matter and impose what he considered a suitable and adequate sanction on the defendant. He thereby rendered himself functus officii.

7. The non-recording of a conviction is a procedure introduced for the purpose of preserving to a convicted person a clear record. The conviction cannot be held against him except where it is necessary to prove his breach of a bond arising on it. The non-recording for this reason does not make the conviction different to what it would be if recorded. The conviction is there but is not on record as a blot on the defendant's record.

8. I hold that the conclusion of the matter in the Court below was a conviction which can be established in this Court in the way permitted by section 38K.

9. Had it not been for the conviction I would have had some hesitation in finding for the plaintiff. She was a garrulous, argumentative and generally very difficult witness with a grossly exaggerated idea as to the damages to which she was entitled. In fact, so far as one could gather from her evidence, the greatest damage was done to her dignity. Her moral damage she called it. Nevertheless, she told very much the same story as in the Court below when the learned Magistrate found the defendant guilty of assault. So, indeed did the defendant. I might, as I said, apart from the conviction, have been hesitant about finding for the plaintiff but the evidence of the plaintiff fell far short of proving the conviction wrong.

10. Although the plaintiff did not claim special damages she was heard to give evidence that a lace blouse she was wearing at the time of the incident was torn. She produced the blouse which had a very slight tear at the neckline and was some corroboration of the plaintiff's story that she was scratched about the neck. She said she went to a hospital, a statement which was not challenged, but no medical evidence was produced.

11. I found for the plaintiff and considered that $100 was ample compensation in the plaintiff's grossly exaggerated claim. I allowed the plaintiff such as costs (if any) she would be entitled to in the scale appropriate to a claim for $100.

Representation:

Plaintiff in person.

Mr. Patrick Woo (Danny Yiu & Co.) assigned for Defendant.

(1) (1969) 3 A.E.R. 1230