HKSAR v. Chu Ying Lung

HCMA000667/1999

HCMA667/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 667 OF 1999

(on appeal from SPCC 1489 of 1999)

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Coram: Hon Mr Justice PANG in Court

Date of hearing: 28 October 1999

Date of judgment: 28 October 1999

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J U D G M E N T

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1. The appellant, CHU Ying-lung, pleaded not guilty to one charge of wounding contrary to section 19 of the Offences Against The Person Ordinance, and was convicted after his trial. He was sentenced to five months imprisonment.

2. The incident took place on 25 February this year at the canteen of the Lai Chi Kok Reception Centre. A number of inmates, the appellant included, were seen to have been assaulting the 1st prosecution witness, who was also a detainee.

3. The prosecution case is based on the evidence of the victim and the 2nd prosecution witness, an Assistant Prisons Officer. The victim said he was assaulted by a number of persons and received injuries as a result. He told the court below that he saw the appellant in the room in which he was assaulted. While he was assaulted and in the confusion he heard a number of persons shouting "don't fight!" They were trying to mediate and stop the assault. One of the voices he recognised was somewhat similar to that of the appellant. He was under the impression that the appellant was trying to mediate the fight.

4. The 2nd prosecution witness gave evidence to the effect that he saw the appellant, together with another inmate, were trying to pin the victim down on the floor and assaulted him. He saw what he alleged to have been the appellant assaulting the victim with his fists and the blows landed on the victim's face and head. In cross-examination he was specifically asked whether at the time the appellant was trying to mediate the fight. His reply was something of interest. He admitted that the circumstances did not allow him to distinguish whether the appellant was assaulting the victim or was he trying to mediate the fight.

5. As quite correctly pointed out by Mr Forrest, who also appeared in the court below, if the 2nd prosecution witness was convinced that the appellant was the aggressor, he could have said so during cross-examination. The evidence suggested, however, he was not entirely certain.

6. This, coupled with the uncertainty in the victim's evidence, forces me to conclude that there must have been a lurking doubt which renders the conviction unsafe and unsatisfactory. The appeal against conviction is allowed and the sentence is set aside.

Representation:

Mr Paul HO, Senior Government Counsel, for Respondent

Mr Robert Forrest, instructed by M/S Simon Tam & Hau, for the Appellant