The Queen v. So Yip-kan

HCMA001013/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1013 OF 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 8 Septemper 1989

Date of Delivery of Judgment: 8 September 1989

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J U D G M E N T

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1. The Appellant was convicted after trial in the magistrate's Court on a charge of fighting in a public place contrary to Section 25 of the Public Order Ordinance Cap. 245.

2. The prosecution evidence was given by two uniformed police officers. The 1st officer said that when he was on patrol with his colleague, around 5 a.m. on the 22nd of January of this year, the date of the alleged defence, he saw a group of 14 to 15 men fighting at a junction of two public streets. When he was asked to describe what they were doing he said they were exchanging punches and kicks, and that it was a confused situation. He himself identified one or the people who took part. It was not this appellant but another Defendant in the case.

3. The other police constable also described a fight which he saw in which he estimated there were 14 to 15 males taking part. But he gave a more detailed description of the activities of two of them. One of them was this Appellant, and the other was the 1st Defendant to the charge.

4. That was the case for the prosecution. For the defence, there were several withesses. The 1st Defendant, who was identified by the 2nd police officer as the man fighting with the Appellant, said in evidence that he saw the Appellant hitting the 2nd Defendant, that is, hitting the man who was arrested by the 1st police officer. The 1st Defendant went on to say that he went up and shouted at the Appellant to stop, the Appellant ignored him so he held the Appellant with his arms and struggled with him.

5. The gist of that Defendant's evidence was that there was an incident between himself and the Appellant and although he played down his own role in the matter, nevertheless, his evidence was consistent with that given by tile police.

6. The 2nd Defendant in his evidence said that there was a struggle between the 1st Defendant and the Appellant. And another witness called for the defence said that the Appellant had hit him, and that then the 1st Defendant had held the Appellant.

7. The Appellant's evidence was that he was walking in the street alone, when he was suddenly attacked, and because of that, he hit back in self to defence. When he was cross - examined by the solicitor who appeared for soave of the other defendants, he said that he fought back with fists and kicks.

8. Mrs. Panesar, in support of the Appellant's appeal against the conviction relies on a number of grounds. The first is put in this way:

"The learned Magistrate overlooked the fact that the Crown has the burden of proving the case against the Appellant beyond reasonable doubt, and that the Crown's case should stand or fall on its own."

9. The learned Magistrate did specifically refer to the fact that the Crown had the burden of proving the case against the Appellant. In the course of dealing with the evidence, he made it clear that he accepted the evidence of the police officers. That was not surprising because it was unchallenged evidence. He also sets out certain parts of the evidence given on behalf of the defence that he accepted.

10. A tribunal of fact is entitled to accent the whole of the evidence of a witness or part of it or reject all. The learned Magistrate was entitled, if he saw fit, to reject part of the evidence of defence withesses and accept part, and that is what he appears to have done. If the evidence which he accepts supports the case for the Crown, then the prosecution case is strengthened by that evidence. I accept the submission of Mr. Master that a tribunal of fact is obliged to act on the whole of the evidence which it finds acceptable. I, therefore, fine no substance in the first ground.

11. The other grounds of appeal deal with a number of discrepancies in the evidence, but those discrepancies appeared not in the prosecution evidence, but in the evidence tendered on behalf of the defendants.

12. The learned Magistrate in accepting parts of the defence evidence was accepting evidence which was consistent with the unchallenged evidence given by the prosecution witnesses. I do not see how he could be validly criticised for having done that. I do not think that there was any obligation on him to deal with the inconsistencies in the defence evidence because there was abundant acceptable evidence before him to show that there was fighting in a public place and clear evidence negating any contention that the Appellant was acting in self defence.

13. I find no substance in the criticisms which have been made regarding the magistrate's finding and there is nothing in the material to which I have been referred on behalf of the Appellant which makes the Magistrate's findings unsafe or unsatisfactory. I therefore, find no merit in the appeal and I dismiss it.

Representation:

Mrs. M. Panesar instructed by OLA for Appellant.

Mr. J. McMaster, c.c. for Crown/Respondent.