Chau Kwai Ming and Another v. The Queen

Case No.CACC 104/1979

Court

Court of Appeal

Date08 Feb 1979

Judge—

Case Document

100%Judiciary

CACC000104/1979

IN THE SUPREME COURT	Criminal Appeal
	1979 No. 104

BETWEEN
	CHAU KWAI MING	Appellants
	LIU WING TAK
	AND
	THE QUEEN

Coram: Zimmern, J.

Date of Judgment: 8 February 1979

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JUDGMENT

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1. The 1st and 2nd appellants were convicted of unlawful wounding and sentenced to detention centre and nine months imprisonment respectively. The 1st appellant appealed both against conviction and sentence and the 2nd appellant against conviction only. The appeals of the 1st appellant were dismissed. There was ample evidence to support the conviction against him and the detention order was apt. However, the case against the 2nd appellant was a different matter altogether.

2. The facts were the 1st appellant had loaned the complainant $1,000. There was conflict in the evidence as to interest and terms of repayment. It was common ground that they met in the early hours of the morning of the 20th October 1978 in a ballroom where partial repayment of the loan was made by the 1st appellant and a dispute ensued. The complainant's brother the manager of the ballroom was present and intervened. The complainant then left the ballroom and when he was in the street near a restaurant he saw the 1st and 2nd appellants with some 10 to 20 persons approaching. The 1st appellant struck him with a broom pole. He dashed into the restaurant where the crowd followed and he was assaulted in the restaurant. The complainant said and I quote:

	"Later that morning I was in the street near to the Man Kar Chuen restaurant at Yaumati, waiting for my brother. Before the arrival of my brother I saw the 1st and 2nd appellants walking towards me with 10 to 20 persons. The 1st appellant came up to me in the street and said something. The 1st appellant then struck me with a broom pole, one of the others (neither the 1st nor the 2nd appellant) was holding a fruit knife. He aimed the pole at my head and it hit my right shoulder once, resulting in bruising. I ran away and went into the restaurant. Inside the 1st and 2nd appellants and others pursued me inside the restaurant and somebody struck me with a beer bottle a number of times and the bottle was smashed whilst being hit against my body. I was also hit by a chair, the 1st and 2nd appellants each used chairs to hit me and both of them hit me with the chairs that they were using."
	"After I fell to the floor, the 1st and 2nd appellants and the others then went away. I stood up slowly and then dialled 999."

3. The 2nd appellant put up an alibi and told the Court a story as to where he was which story was disbelieved. The owner of the restaurant gave evidence of the assault but he was unable to identify any one.

4. Be that as it may the 2nd appellant had denied he was present and the burden was on the prosecution to prove that he was. I have cited the only evidence on the issue of identification. The learned magistrate was entitled to find the evidence of the complainant truthful and reject the evidence of the 2nd appellant but the quality of the identification was an issue in the case which he had not considered no doubt by reason the prosecution did not lead evidence on it. There was no evidence that the complainant knew the 2nd appellant before the event which lasted no more than a couple of minutes when he must have been in a state of agitation and the 2nd appellant was merely one of a group of 10 to 20 persons.

5. Counsel for the 2nd appellant relied on R. v. Turnbull⁽¹⁾ succintly and forcefully. She was right. Even though the learned magistrate had accepted the complainant as a truthful witness, the facts of this case were such that the chance of a mistake by the complainant were realistically there and ought to have dealt with.

6. The conviction was quashed and sentence set aside at the end of the hearing.

Representation:

Maria Yuen (Haldane & Co.) for Appellants.

Alderdice for Crown.

(1) [1976] 3 A.E.R. 549