The Queen v. Tai Yuen Yam (D1) and Another

HCMA000595/1996

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Coram: Hon Mayo JA sitting as an additional High Court Judge

Date of hearing: 29 August 1996

Date of judgment: 29 August 1996

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JUDGMENT

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Mayo JA:

1. At the conclusion of these appeals I informed the parties that I would be quashing these convictions and setting aside the sentences and that I would be giving my reasons for this later. This I now do.

2. Both these appellants were charged with various counts of assault occasioning actual bodily harm contrary to s39 of the Offences Against the Person Ordinance, Cap 212. D1 was also charged with two counts of attempting to pervert the course of justice contrary to the common law. As it transpired D2 was convicted on the assault charges after a trial before Mr Duggan and D1 was acquitted of the assault charges but convicted on the attempts to pervert the course of justice. They both appeal against their convictions.

3. The charges relate to an incident which occurred at Fanling on 15 July 1995.

4. There was an ongoing feud between members of a firm called Hing Yip Decoration Company and other decorators who did business on the estate in question at Fanling. The two appellants were convicted on four other assault charges and one court of causing damage to property by another magistrate in connection with a series of assaults which occurred on 8 June 1995. Their appeals against these convictions were heard by me prior to my hearing this appeal.

5. So far as the present case is concerned three of the prosecution witnesses were at office premises in Fanling when a number of men entered the office and threatened them with violence if they did not immediately leave the premises. These witnesses were apprehensive that associates of the men were in the vicinity of the building and they feared that if they left they would be assaulted.

6. One of the men telephoned their associates at Hing Yip and asked them to come to the building so that they could render them assistance if their fears were realised.

7. It took the associates some time to come. In the meantime a report was made to the police.

8. However before the police arrived the colleagues from Hing Yip arrived. According to the prosecution case they were set upon by a group of 20-30 men. The appellants assumed a prominent role in the group. Quite serious injuries were sustained by the Hing Yip men as their assailants used piping and other instruments which they had obtained from a construction site.

9. At the trial D1 denied ever having been present at the incident. So far as the last two counts i.e. perverting the course of justice were concerned he denied that he had attended Hing Yip's offices on 22 and 23 July 1996 and offered respectively $10,000 and $30,000 if the victims of the assaults did not testify against him in connection with the incident. He alleged that far from this having occurred the 1st prosecution witness had himself demanded $200,000 from him to settle the matter.

10. D2 admitted being present at the incident. He claimed however that the Hing Yip men had been armed and had set upon him rather than visa versa. He called two witnesses to corroborate his evidence.

11. Having heard all of the evidence the magistrate was satisfied beyond a reasonable doubt that the prosecution witnesses were to be believed. He rejected the defence evidence.

12. The perfected grounds of appeal lodged by these appellants take a similar form. Complaint is made that the magistrate failed to take sufficient cognisance of the ongoing feud between these parties or to weigh and consider the possibility that the prosecution witnesses may have deliberately fabricated evidence against them following the matters referred to in FLC 7563/96. Were that appeal to succeed there would have to be a lurking doubt concerning the outcome of this appeal.

13. I have in my judgment in the appeal in that case made reference to the problems which have arisen as a consequence of this case having been heard independently of that case.

14. In the absence of a satisfactory resolution of the disparity between the contents of the statements made to the police shortly after 8 June incident and the evidence which the same witnesses gave in court in FLC 7563/95 there must be a lurking doubt as to whether the witnesses could properly be regarded as truthful and reliable witnesses. This was also a central issue in the present case.

15. A further matter which has to be borne in mind is that defence counsel conducting the defence of these men in the court below would have been considerably handicapped in the conduct of their respective defences by the fact that their clients had already been convicted of very similar offences in relation to what was essentially another aspect of the same ongoing feud between these parties.

16. Indeed Ms Cheng for the Crown very properly conceded that it would difficult to see how justice could be done to these appellants if the two cases were not consolidated. As I indicated in my judgment in Magistracy Appeal No. 533/96 I have considerable sympathy with this view.

17. For the reasons I have given these convictions cannot be regarded as safe and satisfactory and must be set aside. I so ordered and further ordered that there should be no retrial of these offences.

Representation:

Miss Bianca Cheng for Crown Prosecutor

Mr Philip Wong instructed by M/S Paul, Kwong & Co. for 1st Appellant

Mr John Hemmings instructed by M/S Paul, Kwong & Co. for 2nd Appellant