The Queen v. Tsang Yui-fung

Case No.HCMA 521/1986

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMA000521/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Magistracy Appeal

1986, NO. 521

BETWEEN

THE QUEEN

and

TSANG YUI-FUNG

________________

Coram: Sir Alan Huggins, V.-P. sitting as an additional Judge of the High Court

Date of Judgment: 30th May 1986

__________

JUDGMENT

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1. The Appellant appeals against his conviction on a charge of common assault. He is the proprietor of a shop and the Complainant was a customer in his shop.

2. The evidence for the prosecution was that the Complainant went into the shop and asked for a product which has been variously described but which I think everybody understood to be something in the nature of WD 40, which is a rust reducing oil. The prosecution case is that this was produced, that when the Complainant opened it to examine the container he found that it was damaged, that, accidentally, owing to a defect in the can he sprayed some of the contents on the Defendant but that in retaliation for that accidental assault by the Complainant the Defendant set upon the Complainant and punched and kicked him. A fight ensued and it was originally alleged that two brothers of the Defendant, who were in the shop, also assaulted the Complainant and they too were charged, but were acquitted.

3. The case for the defence was that the Complainant came . into the shop, was handed this tin of oil and deliberately sprayed the Defendant, that he then started to go out of the shop with the can, that the Defendant seized hold of him to prevent his leaving and that at that point the Complainant struck the Defendant a blow on the eye with the can, whereupon the fight erupted.

4. The learned magistrate set out the task which faced him in the form of two propositions. He said

"To determine if the appellant assaulted PW1(i.e. the Complainant)

To consider the defence of 'Defence of Property' [PW1 taking the can out of the shop] and self defence [PW1 striking the appellant in the eye with the can]."

5. The can involved in the dispute was not produced to the court. What was produced was a similar can which, so far as I can see (and it has been produced before me), is without any defect.

6. The findings of the magistrate was stated in seven paragraphs.

"	1.	that on 12/4/86 at 74 Hollywood Road inside a shop PW1 accidentally sprayed anti-rust oil from a can of rust onto the appellant's shirt.
	2.	That the can was defective and that PW1 refused to buy it and left it on the counter.
	3.	That PW1 took up his possessions and went to leave the shop - and that the appellant grabbed his clothing demanding payment as he tried to leave. Since he had sprayed the can. PW1 never took the can from the counter." That is how it appears in the notes. I think what was meant was "After he had sprayed with the can, PW1 left the can on the counter.
	4.	A struggle developed in which PW1 and the appellant rolled on the ground outside the shop. PW1 regained his feet the police arrived and all parties were arrested for fighting in a public place.
	5.	There was insufficient evidence that D2 and D3 were ever involved in the struggle.
	6.	No scar/injury was observable on the face of the appellant.
	7.	It was the appellant who made the first assault on PW1. PW1 defended himself."

On that basis the learned magistrate, substantially believing the evidence of the first witness (the Complainant ), convicted this Appellant.

7. It is to be noted that the magistrate appears to have rejected the evidence of the police constable who appeared on the scene: he said of that witness that his evidence of what he saw was "imprecise and generalized": he was "a careless observer". He even rejected part of the first prosecution witness's evidence, namely that he had received injuries. Therefore when passing sentence the magistrate said "Neither hurt or injured", referring to the Complainant and the Appellant. The attitude of the magistrate would seem from the record to have been that he was not disposed to accept that there had been any injuries to anybody unless there was a medical report to substantiate such injury.

8. This was substantially a matter of fact which had to be decided by the magistrate. There was no necessity for corroboration in law, but it is suggested that the circumstances of the case were such that the magistrate should not have relied solely on the evidence of the Complainant. That I think was a matter which must be left to him. He was entitled to believe the first witness and he cannot be blamed if he did.

9. The other complaints relate to the sixth finding, that no scar or injury was observable on the face of the Appellant which is perhaps not surprising since the trial took place some weeks after the offences alleged to have taker place, for I read that to mean that the magistrate himself observed no scar or injury. I find it difficult to understand why he rejected the evidence of the second prosecution witness that there was an injury on the Defendant, namely a cut on his eye and blood on the corner of his mouth. What has caused me most anxiety is the Statement of the magistrate that the evidence of the person who I think is to be identified as the second defence witness, who was an "independent witness", was not germane to the issue. It is perhaps doubtful exactly what he meant by the issue. Undoubtedly the evidence of that witness was germane to the credibility of the other witnesses. It was, however, not concerned with who was the person who committed the first unlawful assault. I use those words advisedly. However unreasonable the Complainant may have been it did not affect the question who committed the first unlawful assault. The evidence of that witness was that the Complainant had been in another shop shortly before and had been acting strangely there. As I say, I do not think it is in fact germane to the real issue in the present case, whether or not the first criminal assault was committed by the Defendant or by the Complainant that this man had been acting strangely before.

10. It was for the magistrate to decide whether he believed the story of the prosecution. There is no reason to believe that he did not appreciate where lay the burden of proof and I find nothing which can justify me in interferring with the finding which he made, that the assault by the Defendant in punching the Complainant was made in effect in retaliation for the spraying on him of the contents of the can, and in those circumstances I have no alternative but to dismiss this appeal.

30th May 1986

Representation: