The Queen v. Jaw Siu Wah

HCMA000339/1985

BETWEEN:-

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Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 9 May 1985

Date of delivery of judgment: 9 May 1985

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JUDGMENT

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Preliminary

1. This is an appeal against conviction on a charge of common assault. The appellant seeks to upset a finding of fact which the magistrate has come to, and as has been said on many occasions, that imposes a very heavy burden indeed on the appellant. As Miss Crebbin for the Crown has quite rightly pointed out that it is not for the Court of Appeal to interfere with what finding of fact unless it can be shown either that the court below has come to a conclusion which could not be supported by the evidence or there is evidence which that court has not taken into account in reaching its findings.

The evidence

2. The Crown's case was that a traffic warden, Mr. Pun To-wing, the complainant, had issued the ticket to the complainant's car. He then moved on to another car in front and at that stage that the appellant came up to him and pulled him back to his own car where, it is not in dispute, a very heated argument developed. There were two witnesses who, on the face of it, appeared to be independent and the magistrate certainly has made no finding they were not, who gave evidence, and quite clearly in view of the total conflict between the evidence of the complainant and the appellant as to the events prior to the argument taking place beside the complainant's car, their evidence was important. Both these witnesses give evidence which is consistent. Indeed, one perhaps should look at such evidence with some suspicion because both of them give evidence as to what took place during the argument along very similar lines. However, I don't think that it is so consistent as to cause me to feel that it is concocted. Both of them say that there was no scuffle between the appellant and the complainant at that tape. That, of course, is not the assault which is complained about but the complainant did say that there was a scuffle after he and the appellant had returned to the Mercedes car. Both of them confirmed that the complainant did say to the appellant that if he did not like the issue of the ticket that he could complain to the magistrate. Both of them said that the complainant did say did threaten to dial 999 and allege that he had been assaulted. This confirmed the appellant's version. The complainant, on the other hand, denied categorically saying any of those things.

3. There are other points taken, perhaps not quite so significant. For instance the complainant says he complained to the police of being hit when in fact he was pulled, but I would place little significance on that.

Decision

4. There was evidence from these two witnesses who the magistrate rightly said were not present when the alleged assault took place, but whose evidence should have been considered as to whether or not the complainant or the appellant was telling the truth as to the actual assault. If the magistrate had said that he did not believe their evidence, then that is the end of the matter. However, he appears to have accepted their evidence but in his findings he said that he was "not assisted by their evidence. in deciding whether or not I was satisfied the complainant had been assaulted by the appellant". (I think their evidence as to events after that should have been of assistance to the magistrate, not necessarily to find the appellant not guilty, but it should have been considered) as there were three quite important matters where there was a complete conflict between the evidence given by the appellant and that given by the complainant and clearly, if the independent witnesses' evidence was accepted, it went very much to the complainant's credit.

5. For those reasons I think the appeal must be allowed. Might I however also say this. The appellant's behaviour on this occasion was totally disgraceful. I have given thought as to whether I should not dismiss the appeal on the basis that he may not have physically assaulted this traffic warden, but that he threatened him in the presence of a hostile crowd in a way which caused him to be frightened. That, however, was not the way the Crown's case was put in the court below and I feel I should not do so here. The fine and costs, if paid, are to be remitted.

Representation:

Miss Crebbin, S.C.C, for the Crown.

Paul Dinan (Wing Sum Lo & Co.) for Appellant.