The Queen v. Lam Lit Fai

HCMA000083/1984

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.83 OF 1984

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BETWEEN

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Coram: Hooper, J.

Date: 1 March 1984

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REASONS FOR JUDGMENT

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1. The appellant in this case was jointly charged in the South Kowloon Magistracy with assault occasioning actual bodily harm contrary to Section 39 of the Offences Against the Person Ordinance Cap. 212 Laws of Hong Kong. It was alleged in the particulars of the offence that he committed the crime together with KUNG Lo-tak (D2) on the 31st of October 1983 at Kowloon. The appellant was convicted of common assault whereas the 2nd defendant was acquitted. I allowed the appellant' appeal against his conviction of common assault and indicated that I would give fuller reasons for doing so at a later stage. I now do so.

The grounds of appeal were set out as follows:-

"1.The learned magistrate's Findings of Fact were incapable in law of supporting the conviction for common assault or any other offence.

2. The verdict of guilty of common assault against the Appellant was in the circumstances of the case inconsistent with the verdict of acquittal in respect of the 2nd Defendant.

3. Although the learned magistrate said in his Reasons for Verdict that in his opinion PW1 was a reliable and truthful witness, the learned magistrate could not in fact have held this opinion since he acquitted the 2nd Defendant in spite of PWl's clear and unambiguous evidence that the 2nd Defendant was guilty. Furthermore the learned magistrate acquitted the Appellant as charged despite PWl's clear and unambiguous evidence of the Appellant's guilt as charged.

4. The learned magistrate's Reasons for Decision were inadequate and the verdict of Guilty of common assault is therefore unsafe and unsatisfactory."

2. I allowed the appeal on all four grounds.

3. Dealing with the first ground of appeal the magistrate set out his findings of fact as follows:

"1. P.W.l sustained the injuries as set out in the Medical Report (Exhibit P.1).

2. P.W.l and the Appellant were present at the material date and time in the bar-room of the "Four Sisters" Inn, Minden Road, Kowloon."

4. It is manifestly clear that these findings of fact were incapable in law of supporting the conviction for common assault or any other offence.

5. So far as the second ground is concerned P.W.l's evidence was in respect of a joint assault upon him by both defendants. It was his evidence that appellant punched him in the stomach whereupon he punched the appellant in the stomach whereupon the appellant punched him on the left side of his face. Then the 2nd Defendant leaned over the bar and hit him on the right fore-arm with a heavy bar which he thought was made of heavy wood. It could have been metal. It landed in the middle part of his right fore-arm. The medical report Exhibit Pl referred to above indicated that he sustained a spinal fracture of the right radius.

6. Under cross-examination P.W.l was asked the question

"Q. Only time you noticed Dl was when he hit you in stomach and you hit him back?

A. Yes.

Q. He took no further part after that?

A. Correct. But he also shouted to his friends to join in"

7. It is quite clear that P.W.l was complaining about an attack upon him by both the appellant and the 2nd Defendant which resulted in his occasioning actual bodily harm. In his reasons for decision the magistrate said that he was of the opinion that P.W.l was a reliable and truthful witness. That being so the verdict of guilty of common assault against the appellant was inconsistent with the verdict of acquittal in respect of the 2nd Defendant.

8. It would appear from this that the magistrate could not justifiably have held the opinion that P.W.l was a reliable and truthful witness otherwise he would not have acquitted the 2nd Defendant.

9. So far as ground four is concerned it is a source of some surprise to me that despite the frequent admonitions by the judges of this court for the need for an adequate statement of findings, so often they are not provided. In criminal appeal 607 of 1979 LAM KAM MING & Another O'Connor J. giving the judgment of the Court of Appeal had this to say:-

"We have been referred to the following cases wherein observations were made as to the duties of judges and magistrates in giving reasons for their verdicts: R. v. Lam Ting Chung 1970 H.K.L.R. 105; Kowloon Motor Bus Co. Ltd. V. Kong Tung 1973 H.K.L.R. 198; R. v Law Keung Cr. App. 625 of 1972; R. v. Tang Nai Keung 1976 H.K.L.R. 736; R. v. Cheung Man Wah 1976 H.K.L.R. 415; R. v. Wong Ching Kui Cr. App.1103 of 1978; R. v. Cheng Kam Man Cr. App. 426 of 1969; R. v. Yeung Chiu Cr. App. 1043 of 1975; R. v. Li Chi Kin Cr. App. 378 of 1972. The principles are sufficiently set out in those authorities and in the case of R. v. Ma Wai Shuen & anothers Cr. App. 949 of 1978 which have come across while preparing this judgement. We do not wish to unnecessarily add to the authorities that may be quoted in future. We agree with the observations in those cases. The reasons given 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 conflicts should be dealt with in such a 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 case. The judge or 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."

10. It is clear that the magistrate's statement of findings and reasons for judgment in the present case were inadequate.

11. It doesn't necessarily follow that because a magistrate's reasons for decision are inadequate that the verdict will therefore be unsafe and unsatisfactory. It depends upon the evidence which was before the magistrate in a particular case. In the present case the evidence of P.W.1 upon which the conviction of the 1st Defendant must necessarily have been founded could not have been believed in relation to the 2nd Defendant. In the absence of any attempt to demonstrate that the evidence had been evaluated or to explain the inconsistencies of the verdicts I considered that the verdict was unsafe and unsatisfactory.

Representation:

Mr. Adrian Bell (H.M. So & Co.) for the Appellant.

Mr. K.J. Oderberg, Senior Crown Counsel for Crown/Respondent.