HKSAR v. Mak Kwok Keung

HCMA000956/1999

HCMA956/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.956 OF 1999

(On appeal from ESCC 1884 of 1999)

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Coram: Deputy Judge Gill in Court

Date of hearing: 27 January 2000

Date of judgment: 27 January 2000

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J U D G M E N T

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1. On 10 September 1999 the appellant was convicted after trial before J Lee Esquire, Magistrate, of the offence of Common Assault. He now appeals that conviction.

2. That part of the transcript made available to me reveals that the victim and appellant are, or at least at the time in question were, married, although in strained circumstances, with the wife, as I shall call her, periodically living away from the matrimonial home.

3. On the day in question the wife had returned to the home to pick up some clothes and other personal effects, also to tidy the place and perhaps to attempt a reconciliation, or at least try and reach some sort of truce, with the appellant. This in the event was not to be. There were allegations of assault. The wife said she was attacked and beaten many times with a broom. The police were called. A police officer arrived. Peace was restored. He left. Then there were more alleged assaults, this time with fists, the appellant attacking the wife about her head, shoulders, arms and chest.

4. The wife was examined in the hospital and was said to have suffered minor bruising and pain about the chest. I mention in passing that the mild extent of these medical signs of attack seemed to be at odds with the ferocity of the attacks she has complained of.

5. In perfected grounds of appeal expanded before me, counsel for the appellant, Mr Grounds, complains as his first and I believe primary ground, that the magistrate's findings were inadequate and failed to deal with conflicts and inconsistencies or explain to what extent and why the appellant's evidence as against the victim's evidence was not accepted.

6. There are other grounds, but in the meantime I shall deal with that.

7. The magistrate, in a single page statement of findings, refers to and adopts his decision given in court at the conclusion of the trial. All well and good, but this comprised something of a mishmash of speculation as to how the wife came to be in the premises and the state of the relationship between the parties. He ended by saying that he accepted the wife's evidence to be credible whilst not accepting that of the appellant.

8. These are not findings in the accepted meaning of the word and as required by section 114B of the Magistrates' Ordinance, Cap.227. O'Connor J put it best in LAM King-ming, Cr.App.601 79, when he said:

"The reasons for verdict should, in 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 conflicts should be dealt with in such manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case. The magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to perform its duty."

9. In this case the magistrate should have taken time to set out by analysis what findings of fact he came to and why, and in particular why it was he rejected the evidence of the appellant. As he did not, I find in the circumstances the findings to be wholly inadequate, rendering the conviction unsafe.

10. There are other grounds of appeal put forward, but as the appeal succeeds on this, I shall not bother to deal with them. Suffice to say the appeal is allowed and the conviction is quashed.

Representation:

Mr J Man, Senior Government Counsel, for Respondent

Mr C Grounds, instructed by M/s Chan Wong & Lam for Appellant