The Queen v. Wu On-shing

CACC000341/1983

BETWEEN

Coram: Hon. McMullin, V.-P. in court

Date: 28th June, 1983

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JUDGMENT

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McMullin, V.-P. :

1. The appellant was convicted by a magistrate of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance. The circumstances out of which the charge arose concern an unpleasant incident which occurred at about 8:00 p.m. on the evening of the 6th August when Lam Ming-hon, a police officer, off-duty, was walking up a staircase in Hang Hing House of Hing Wah Estate. He was passing by that building when a dog suddenly ran out and chased him. He took refuge up a stairway and endeavoured to drive the dog away. A man then came to ask him what was the matter. The police officer came to the conclusion that this was the owner of the dog - a fact which has not been in dispute in the case - and he told him that the dog should be tied up. The man said that he could report the matter to the police if he was dissatisfied, whereupon the officer said, not unnaturally, that he was the police. He then received an abrupt and rude reply and was assaulted by this person.

2. Three men were charged with this offence. It is common ground that the man who dealt with the police officer in this way was the 2nd defendant, Wu Choi-shing who, together with his brother the 1st defendant, Wu Chi-shing, pleaded guilty to the charge. The officer described how he was seized by the neck by the 2nd defendant and how the 1st defendant joined his brother in this attack. The officer then went on to describe how the present appellant who is a brother of the other two joined in the fray.

3. The 1st defendant pleaded guilty as did the 2nd defendant. The appellant did not give evidence but called his brother, the lst defendant, who testified that he and the 2nd defendant had indeed assaulted the officer, but that their brother, the appellant, had been merely standing by as an observer. The appellant has not put in an appearance upon these proceedings but I am told that there was difficulty in contacting him in order to inform him of the date of hearing and I attach no importance to that fact.

4. Mr. Bell, who appears for the appellant, makes two points. Firstly he says that the evidence given by the complainant witness as to the exact circumstances of the assault upon him was in effect rejected by the magistrate. That is true. The police officer's evidence was that he was struck by the appellant several times at two different points in the engagement. Firstly he received blows from him shortly after he, the complainant, had been attacked by the 1st and 2nd defendant and thereafter he described how one of them, though he could not say which one, went and fetched a folding chair and a pole during which time he was restrained by another of them. He then said that the 3rd defendant struck him again with fist and kicks and also used the pole, which had been fetched by one of the brothers, to strike a blow against his body.

5. The magistrate in his findings says: "I was not prepared to find it proved beyond reasonable doubt that D3 had himself struck PW1 during the assault, but the appellant was present throughout and I found that during the assault he incited and assisted his co-defendants to commit it. Mr. Bell points out that there is nothing in the evidence to support that finding and I confess that I must agree with him. The whole basis upon which the complainant presented the case against this appellant was that of a direct physical assault by the appellant against him, the complainant.

6. The magistrate went on to say: "In finding that the appellant was a party to the assault, the period during which I found this to be proved beyond doubt was when one of the brothers left the scene to obtain weapon (a chair and broomstick) with which to continue the assault. During that time I found that D3 assisted the other brother to prevent PW1 from escaping."

7. The evidence of PW1 was however that he was restrained by the 2nd defendant and pressed to the ground. No mention is made of the 3rd defendant in this connection whatsoever. When the 1st defendant returned with the weapons, then, according to the police officer, the 2nd and the 1st defendant held him back and it was then that he was struck by the 3rd defendant. It is patent from the evidence that the suggestion was never made that the 3rd defendant was merely standing by and in a position to give assistance should it be needed, or that he was in any other way positively offering aid or comfort to those who were assaulting the' police officer.

8. The Crown's case stood or fell by the evidence of direct assault. With that part of the evidence rejected by the magistrate, the conviction cannot stand.

9. A secondary point is made by Mr. Bell who points out that the witness called by the defendant, that is his brother, the 1st defendant, told the court that the appellant was merely an observer. No reference is made to that evidence whatsoever. Mr. Bell refers me to the case of law in 1961 H.K.L.R. P.13 followed in 1980 by the learned Chief Justice in Chan Wing-man [1980] H.K.L.R. 105 and he accepts that the authority of those cases is to the affect that it is not necessary for a magistrate to set out the entire substance of his thought processes dealing with evidence before him. Counsel also however refers me to Lam Kam-ming Cr. App. 607 of 1979 in which a number of other authorities were cited by Mr. Justice O'Connor in support of the proposition that reasons given by a magistrate should: "in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflict should be dealt with in such a manner as to indicate how those matters were resolved."

10. As that learned Judge pointed out there is no simple formula for what ought to be in a judgment, nor can it be said in the present case that the magistrate was confronted with inconsistencies in the prosecution evidence since that consisted solely of the evidence of the police officer who cannot be said to have contradicted himself. But he did have before him an issue to be resolved and that is whether, upon the evidence, it was proper to say that there had been a direct assault or whether, failing that, there was evidence sufficient to show that comfort and assistance had been rendered in some way short of personal involvement by the appellant.

11. In failing to refer to the evidence of the lst defendant, the magistrate fell short of the requirements suggested by Lam Kam-ming and the other cases.

12. For these reasons therefore I find that the conviction is unsafe. It is quashed and the fine of $300 if paid must be returned to the appellant.

Representation:

Adrian Bell (D.L.A.) assigned for Appellant.

R.E. Walters for Respondent/Crown.