Tsim Wai-man v. Cheng Pak-luen

HCMA000197/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 197 of 1984

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BETWEEN

Coram: Hon. Penlington, J. in Court

Date of hearing: 31st May 1984

Date of Judgment: 31st May 1984

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JUDGMENT

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1. This is an appeal against conviction of assault causing actual bodily harm and comes at the end of what has been a very long and unfortunate case.

2. The incident occurred in May 1982 and the cause of it was the dispute between the complainant and the defendant over alleged irregularities in the firm of which they were both partners and also concerning a debt occurred by the complainant's uncle. The rather extraordinary thing is that although the event took place in May 1982 the information, which was private information, was not lodged until November 1983. A preliminary point was taken that the information was statute barred as it was not brought within 6 months. However the magistrate ruled, I think rightly that this was an indictable offence and therefore information could be brought after six months. At any event that is not taken as a point of appeal before me. It did however mean that the witness gave evidence about events which took place at very long before the hearing.

3. The clear evidence is that there was an argument between the defendant and the complainant in their office at Aberdeen. The complainant in his evidence said that he was then attacked by the defendant with his fists and he defended himself. As he tried to get out of the office, he pushed aside a desk. The magistrate found that was how the desk got turned over there being evidence that the defendant was shortly afterwards found on the floor between the legs of the overturned desk. The complainant said that the defendant was at no time on the floor but in fact chased him out of the office. The defendant on the other hand said that did not take place; he was in fact pushed by the complainant, they grappled together and fell over the desk, upsetting it. They both fell on the floor, the complainant then left and he was found still sitting on the floor by his employees when they arrived and essentially the magistrate had decided which of those two versions was correct. Having gone through the evidence and the magistrate's findings there are certain aspects which caused. me some disquiet -  the magistrate, for instance, has not specifically dealt with the evidence  given  by an employee Mr. Law, that the defendant was found on the floor between the legs of the desk when he came in which is inconsistant with the complainants evidence. Nevertheless the magistrate has heard  the witnesses in court,  particularly the complainant and the defendant, during a long trial and he has come to this finding of fact and it is not for me  to come to the conclusion that he is wrong on a finding of fact which he is entitled to come to. It  is not for  me to affect  a re-trial the case on the written evidence.

4. I am not able to say that the magistrate could not come to the findings of fact that he did. I can't say that he has not done anything more than not perhaps tied up every possible loose end. This has been to say a most regretable case which involved two persons who up to that time had been partners, and has clearly resulted in generating a great deal of bitterness and it has quite clearly cost the parties a great deal of money. It is unfortunate that the opportunity was not taken after the preliminary point has been ruled on and an adjournment was sought because both Counsel at that stage thought the matter could be settled. The appeal must be dismissed. The respondent is entitled to his costs of appeal in the sum of $1000.

Representation:

P. Ho of Gallant Y.T. Ho & Co. for the Appellant

Wesley Wong (David Tsang & Co.) for Respondent