The Queen v. Tam Yan Chun

HCMA000430/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdictibn)

MAGISTRACY APPEAL No. 430 OF 1991

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BETWEEN

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Coram: Hon Hooper, J. in Court

Date of hearing: 26 June 1991

Date of delivery of judgment: 11 July 1991

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JUDGMENT

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1. On the 21st March 1991, the appellant was convicted after trial on a single charge of possession of an offensive weapon, contrary to section 33(1) of the public Order Ordinance, Cap.245, Laws of Hong Kong. He was sentenced to nine month's imprisonment. He appeals against both conviction and sentence.

2. The particulars of the charge alleged that the appellant, on the 28th December 1990 outside K100 Lounge, Ground floor, Harbour Crystal Centre, 100 Granville Road, Tsimshatsui, Kowloon, in Hong Kong, without lawful authority or reasonable excuse, had with him an offensive weapon, namely two knives.

3. The first two witnesses to give evidence at the trial were PC47226 (PW1) and PC19272 (PW2). They were both in an Emergency Unit car on the early morning in question as it patrolled passed Granville Road near Science Museum Road.   PW1 described how he saw a person (the appellant) holding two knives outside Joy Coming Lounge. He said the appellant was about ten feet away when he first saw him. He alighted from the car and shouted at the appellant to stop. He told the appellant to put down the knives. However, the appellant ignored him and chased the passers-by and intended to chop them. The witness was about five to six feet away when he shouted at the appellant. He described the appellant as chasing four to five passers-by who ran on being chased. They were about three feet from the appellant who was chasing them. PW1 shouted at the appellant telling him to stop and to put down the knives. The appellant was holding one knife in each hand. "He was chasing people to chop them. Both his hands were raised up." PW1 gave a demonstration in court. He shouted at the appellant that if he did not put down the knives he would fire the gun. Then the appellant stood still and put the knife at his neck, and shouted loudly telling the police officer not to shoot him. Then the appellant moved into Joy Coming Lounge slowly, moving backwards. The police officer approached him and the appellant threw away the two knives when he reached the bar counter of the Joy Coming Lounge. The witness shouted at him once more to stand still and not to go away, but the appellant did not respond and went to the rear door of the Joy Coming Lounge. The witness chased after him and when he got to the rear door he lost sight of him. Having searched the vicinity, he failed to find the appeallant and went out through the rear door of the lounge. Then a group of Task Force Officers and the witness then found the appellant in room A2 of the K100 Lounge sitting there. He was arrested by the officers of the Task Force.  Inside room A2 one of the males who was in there said in front of the appellant that he did not know the appellant, but that the appellant came in and sat down and put on clothes.

4. Under cross-examination, PW1 admitted that when he first saw the appellant, the appellant was just outside the red carpet area but that he was moving. The four to five men he was chasing were about three feet in front of him. When asked if the appellant was bleeding extensively from the right hand side of his forehead, he replied in the affirmative. When asked why he did not mention that in his evidence-in-chief, he apologised saying that he omitted to do so. When asked if there was any particular reason for not mentioning the appellant bleeding, he merely reiterated that he had forgotton. When he was asked how far the appellant actually chased the people concerned, he replied about three feet. He also admitted that it was fair to say that the actions, which he had described, took place quickly and within a very short space of time. He agreed that basically what the appellant did was to chase the men from the entrance.

He later saw the appellant taken out of the Joy Coming Lounge by PC47226 and other officers.

5. Under cross-examination, he agreed that the `incident took place very quickly, that he did not see the appellant come out of the Joy Coming Lounge, but he did see him running after the males in the direction running towards him. The males were about six to seven feet in front of the appellant. He did not notice that the appellant was bleeding at that time but he did notice it when the appellant had Stopped and when he, the witness, was pointing a pistol at him. He testified that the people being chased ran away whilst others scattered. He also admitted that the situation was confused when he first saw the appellant. He also agreed that the appellant only chased those people for about ten feet. When it was suggested to this witness that the appellant appeared to be chasing these men out of the lounge, he disagreed saying what he saw was that the appellant was trying to chop somebody.

6. The third prosecution witness was a formal witness who recovered the knives from the Joy Coming Lounge.

7. The fourth prosecution witness was a young man from the K100 Lounge who testified that he was in a room singing with friends when suddenly the appellant came into the room. He did not know the appellant who sat down and said don't be afraid and just told them to continue. He also told them to give him a microphone for him to sing. Then the appellant told him to lend him another garment for him to wear as he had. some blood stains. Then the appellant' asked the witness to lend him his shoes. The witness told him that he only had one pair and could not lend them to him.  After a while the police came in.

8. Under cross-examination, he admitted that when the appellant came into the room he had an injury on his right forehead and was bleeding. There were also blood spatters on his shirt.

9. The fifth prosecution witness was PC23862 who was a member of the Task Force and who arrested the appeallant. Under cross-examination he also admitted that the appellant had a recent injury and was bleeding. When asked if he could see that the injury was a gaping wound and required stitches, he said he was not sure, he was not a professional and he just saw a little blood. He tesitifed that he did make an attempt to find out how the appellant sustained injury but that the appellant just said that he understood but had nothing to say.

10. The appellant gave evidence in his own defence explaining that he was the manager in the Joy Coming Lounge and that about 3:40 a.m. on the 28th December 1990, he was there with only a young Chinese female, Miss Lau, aged 19, who was a public relations officer. He had told Miss Lau about 3:30 a.m. to change her clothes as the lounge was about to close. When she had changed her clothes, four Chinese males came in. At that time Miss Lau had come out. The appellant went to serve the four Chinese males. They pushed open the door and came in. The appellant said "I am sorry, Sir. We are going to close", and someone asked when was it closed and he replied "4 o'clock", then that person took a look at his watch and said It's only 3:30. Are you saying I have no money to pay for drinks?" The appellant said that he could do nothing but lead them to table No. 4 which is opposite the bar counter. After all had been seated, he asked them what kind of drinks they wanted and they each ordered drinks. Miss Lau was still in the lounge but the appellant himself served them. One stood up and asked the appellant "Who is called Tam Yan-chun here?" and the appellant replied "I am". That man then said "I am a police officer". The appellant asked him what was the matter and the man said "Do you know a person called Chan See-see?" The appellant replied that she was his girl friend. One of the four men then said "I am Chan See-see's father. I am a foki. You have courted other's daughter. You have done something." He then said "I am a colleague of Chan See-see's father. You have courted other's daughter. You have done something unfavourable to her. What are you going to do for her?" The appellant replied that this was a matter between the two of them and was none of his business. Then one of the four, who was on his right hand side, stood up and abused him and picked up a vase on the table and hit the appellant's head. The four of them were standing around in a semi circle at this time. The appellant began to bleed, then one of them grabbed his hair and he was punched and kicked. His face was pressed down. One of them said "Hit the fucking of you to death. You drop dead."  The group approached him and the appellant said "That's enough.   Don't beat me anymore or I will not be so nice." He fall onto the ground.   Just as he was about to stand up, one of them kicked his left eye. He became annoyed because of the assault. There was a door under the cashier till and the appellant opened it and ran in.  Somebody threw an ash tray towards him. He saw one ash tray break. He ducked. Then he squatted down next to the shrine. He saw two knives at the shrine and picked them up. They were. exhibits P1 and P2. He picked up the knives to frighten them and to drive them away. He said "You better go away." They said "Are you frighten us?" Then the appellant brandished the knives, but the four men still refused to go away. Then the appellant went out through the door under the counter and the four men moved backwards and the appellant chased them out of the club. At this time he was bleeding and could feel liquid dropping down the side of his face. He drove them away out of the karaoke lounge. He went on "we were at entrance outside. I kept on brandishing knives telling them to go away. I said Don't create anymore trouble here.' But they remained there. When I was brandishing knives I shouted 'Help, the police are beating somebody up', because when they came in they said they were four police officers attached to Tsimshatsui Station. Then they ran away. I turned back, intended to go into the lounge. I heard someone shout from behind. I was standing on the carpet outside the lounge. It was said 'Police, put down knife' several times." He looked over his shoulder and saw three police officers. They had already taken out pistols and were pointing it at him. He was told to put down the knives. Then he put the knives against his neck and said "Ah Sir, don't shoot me. I have been assaulted." The officers said "Put down the knives first." He ignored the officer and went into the lounge. He was bleeding all the time. He threw away the knives at the place where he picked them up, pushed open the rear door and walked out, because he did not want an unnecessary confrontation with the police.: He went into the room of the K100 Lounge next door. Once when he pushed open the door he fainted and fell on the ground. When he regained consciousness he was already seated in a chair inside the room.  He "saw a group of people. sitting there. He asked them if they had tissues or cotton for his injury. One of them took out his or her garment and said "I don't want this upper garment any more. You can take it." The appellant put it on and covered his wound with his hand. Then the police came and he was arrested and taken to the police station and also to the Queen Elizabeth Hospital for treatment where he had three stitches. He emphasized that he did not use knives to chop people. When he asked the police officers why they arrested him and whether they were protecting other police officers, the police officer replied "There is no need for you to tell me. You can tell the CID." After he had been taken to the CID room he mentioned this to one of the CID officers who replied "I won't listen to you anymore. You can tell it to the Court." Under cross-examination, he testified that the men were about ten feet from the entrance when the police shouted "Don't move". He denied that the people he chased included females. When it was suggested to him that he did not say to the police that he had been assaulted by police, he disagreed. He denied that he brandished knives in order to hurt people.

11. He called as his witness Miss Lau who confirmed the appellant's version that she was asked to change her clothes and having done so she saw four customers when she came out from the toilet. They were at table No. 4.  The appellant was serving them. She also confirmed that one of them asked who is Tam Yan-chun and that the four people assaulted the appellant. She said it happened very quickly, she was very frightened.  She testified that they punched him and kicked him and it seemed that something like a glass bottle was used to hit the appellant and that the appellant was being held down and assaulted.  She went into the office through the door under the cashier till and hid there. She locked herself in.  She had only worked at the Joy Coming Lounge for eight days prior to this incident and she resigned the next day. Under cross-examination, she was not shaken at all.  She did hear words "Courting daughter" but did not know what it was about.

12. It Was the defence case at the trial that at all material times the appellant was acting in self defence and therefore had a reasonable excuse for having the weapons with him at the time.

13. The magistrate adjourned the case to the following afternoon to consider the evidence. However, the case was further adjourned to suit defence counsel to the 21st March at 9:30 a.m. At this time, the magistrate delivered what he has called "a summary judgment".  In identifying the issues he had to determine he stated "The important question is whether you were chasing people with a knife intending to attack them or you were standing outside the lounge with knives in hand to ensure that the four males would. depart."

14. The magistrate then noted substantial conflicts between the evidence of the appellant and the young man from the K100 Lounge.  He also noted that his evidence differed from that of the police officer who arrested him. He went on:-

"I find that when the police officers saw you outside the lounge, you were chasing the group of persons with the intention of striking them with the two knives that you were holding. I accept that before the arrival of the police, you had a fight or struggle with one or more of the persons whom you later chased. In the course of the encounter you picked up the two knives in order to use them as weapons against your opponents. When your opponents fled, you chased after them in order to strike them with the knives you were carrying. I am satisfied beyond reasonable doubt that you were not acting in self-defence when you were seen holding the knives and chasing the group of persons. Accordingly, you had no lawful authority or reasonable excuse at the time when you were seen by police officers to be in possession of the knives which are offensive weapons."

15. The grounds of appeal against conviction are as follows:-

"l.     In delivering judgment the learned Magistrate wrongly directed himself that the essential issue that he had to decide was (quote)…'whether or not the Defendant (/Appellant) was in possession of the offensive weapons for the purposes of chopping others or not.'

2.     Whereas the only proper direction in the circumstances in fact was ... 'was the possession of the offensive weapons by the Defendant (/Appellant) at the time, date and place alleged reasonably excused or not? '

3.     That the only and uncontradicted evidence of the Defendant/Appellant and the solve independent witness, one Ms LAU Fung-yee was:-

(a)	that immediately prior to the alleged commission of the offence, the Defendant/Appellant was the victim of an unprovoked assault, inside the premises where he worked as Manager, by four (4) unknown and unidentified Chinese males;
(b)	that during the course of this assault the Defendant/Appellant suffered d actual bodily harm including an injury to his right eye that required three (3) sutures;
(c)	that the four (4) attackers were driven from the premises by the Defendant/Appellant who at the material time was in possession of two (2) knives that he had conveniently seized from behind the cash register counter for the purposes of self-defence;
(d)	that none of the four (4) attackers were or appeared to be injured in any way;
(e)	and that the Defendant/Appellant was arrested by patrolling police officers outside and adjacent to the premises where he worked as he was in the act of driving and chasing his attackers from his premises.

4.     That in all the facts and circumstances of this case that the acts of the Defendant/Appellant were reasonable and performed in the course of his own self-defence and the defence of the premises where he was employed and that this constituted  the defence of 'reasonable excuse'.

5.     That there was no evidence upon which the learned Magistrate could make the finding that he made that the purpose of the possession of the offensive weapons by the Defendant/Appellant was for the purposes of chopping others and that this purported finding of fact amounted to no more than unwarranted speculation.

6.     That the learned Magistrate erred in that he failed to give any or any proper weight to the uncontradicted evidence of the Defendant that the reason for possession was self-defence and defence of premises.

7.     That the learned Magistrate failed to give any weight to, consider or refer to in his judgment, the uncontradicted evidence of the sole independent witness MS LAU Fung-yee that supported and corroborated the Defendant/Appellant's version that he was the victim of unprovoked aggression as opposed to the agressor.

8.     And that in all the circumstances of the case the decision is unsafe and unsatisfactory and against the evidence and the weight of the evidence."

16. Mr Egan, for the appellant, complains that the magistrate made no reference to the evidence of Miss Lau in his summary judgment, but refers to the earlier incident as a "fight" or "struggle", whereas it is clear from both the evidence of the appellant and from Miss Lau, an independent and impartial witness, that the appellant had been the subject of a one-sided attack by four males against the appellant himself. In these circumstances, he was perfectly entitled to make use of the weapons which were ceremonial swords, in defence of himself and the establishment of which he was manager. Mr Egan stresses his contention that the appellant was acting entirely reasonably at this time bearing in mind the severity of the attack upon himself and the injuries he had already received. In these circumstances, the appellant was entitled to use the weapons to force the four males to leave the bar and to force them to leave the vicinity of the premises. There was no evidence to the effect that the appellant had gone more than ten feet from the entrance of the bar.  Indeed, the evidence was equivocal on this subject, one officer saying that the appellant had chased the four men three feet and the other saying that he had chased them for about ten feet. It is ironic, says Mr Egan that the man who was the subject of an unprovoked and vicious attack should find himself prosecuted by the police, who unluckily for him, arrived just at the time when he got outside the premises. PW2 had testified in. cross-examination that. the group of people being chased included females who were younger than the men in their 20's. And that he was sure about this, yet this was not the evidence of PW1 and neither had it been the evidence of Miss Lau, the impartial witness that anyone, other than the four men, were involved in the incident. PW2, in cross-examination, also stated that the appellant chased some people and others scattered.  Mr Egan complains that the police officers wrongly assumed that girls in the vicinity were part of the group. All the police officers had agreed that it took place in a very short period of time. The appellant's subsequent actions were consistent with his panicking when surrounded by police officers with guns aimed at him.   

17. I consider the appellant has been most unfortunate in this case. In both his summary judgment and in his Statement of Findings, the magistrate has found that the appellant was involved in a "fight" or "struggle" with one or more of the perons whom he later chased. In the course of the encounter he picked up the two knives in order to use them as weapons against his opponents. When his opponents fled, he chased after them in order to strike them with the knives he was carrying. He went on from this finding to conclude that the appellant was not acting in self defence when he was seen by the police officers holding the knives and chasing the group of persons. It is apparent from this that the magistrate was not convinced that it was a one-sided attack by four people against one. In my view, this was a case, having regard to the uncontradicted evidence of Miss Lau supporting the evidence of the appellant that the appellant had been the subject of an unprovoked and vicious attack by four men against one, the magistrate should have recognized that it was a case where the appellant was entitled to use reasonable self defence. He should also have recognized, that a person defending himself in these circumstances cannot always weigh to a nicety the exact measure of necessary defensive action. If, having considered this matter, he reached the conclusion that the appellant only did what he honestly and instinctively thought was necessary, that should be regarded as the most potent evidence that only reasonably defensive action was taken. It seems to me that the magistrate has over emphasized the possibility of the appellant being voluntarily involved in a fight.  Had the magistrate reached the conclusion, as I think he should have reached on the evidence of Miss Lau, that it was an unprovoked attack by four men against one, had he considered the matters which I have mentioned above, it may well have been that he would have reached the conclusion that the appellant was acting in reasonable self defence at the time in question. One of the things that has concerned me in this case is that PWl was allowed to give evidence to the effect that the appellant intended to chop the people he was chasing. Whether the appellant intended to chop them or not was a matter for the magistrate to decide as a matter of fact. It was not a matter upon which the police officer was entitled to give evidence.

18. If PW1 was right about the distance that the appellant chased the four men, namely three feet, the events must have been over in a matter of seconds at the outside. Indeed, having regard to the time that a man can run 100 yards, it might have even been over within a split second. Even on the evidence of PW2 that the distance was ten feet, it would have still been a very very short time. In these circumstances, PW2's evidence that the appellant first of all ignored the police officers and continued to chase the group of people, is not very convincing.

19. I agree with Mr Egan that in all the circumstances of the case, the decision of the magistrate is unsafe and unsatisfactory and should be set aside.

20. The appeal against conviction is, therefore, allowed and the conviction and sentence set aside.

Representation:

Mr Kalvin Egan, inst'd by M/s William Au & Co., for Appellant.

Mr Halley, Senior Crown Counsel, for Crown.