Yeung Chiu v. The Queen

CACC001043/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.1043 OF 1975

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Coram: McMullin, J.

Date of Judgment: 16th January, 1976.

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JUDGMENT

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1. The appellant appeals against convictions for assault occasioning actual bodily harm, assaulting a police officer and resisting a police officer in the performance of his duty. All of these charges arose out of an incident which occurred in the International Restaurant in Kowloon upon the 29th of August, 1975. He was originally charged together with two of his daughters upon a fourth charge of assaulting a police officer but all three of the accused were acquitted upon that charge.

2. The facts as alleged by the Crown were that the appellant, who was in the restaurant with his four daughters and one or two other friends or members of his family, became embroiled in a fracas which occurred in the course of the evening. It was the prosecution case that, in the course of this melee, the complainant, P.W.1, an innocent spectator, was assaulted by the appellant who struck him upon the head with a bottle half filled with brandy. The prosecution case was that then five police officers who had been called to the premises to deal with the trouble intervened and upon endeavouring to arrest the appellant one of them was struck upon the nose and the appellant was thereupon over powered, handcuffed and later taken to the police station. It is common ground that the appellant did receive injuries upon that occasion for which he was treated in the hospital on that night.

3. The appellant's story was quite different. He said that he had been engaged in a peaceful birthday celebration with his family when his daughter, who was dancing upon the floor with her boy friend, was rudely treated by some other couple on several occasions. Upon remonstrating with this couple an argument broke out which erupted into a fight in the course of which she and her boy friend were forced back towards their table. He said that after that a number of persons who claimed that they were policemen intervened, produced guns and threatened him and his family and accused them of fighting. In the course of this affair he received an injury to his head being struck by one of the police officers, P.W.3. upon the head with a pair of handcuffs. He agrees that he was later taken to the hospital and then to the police station.

4. Two principal grounds of appeal concern this court. A third ground was urged but was relinquished by Mr. Sanguinetti on my intimating that I regarded it as dubious.

5. Firstly, it is said that the learned magistrate erred in failing to observe the provisions of section 27(2) of the Magistrates Ordinance. The matter fell out in this way. Close to the conclusion of the prosecution case the magistrate took it upon himself to alter the Particulars of the first charge which originally had charged the appellant with assault allegedly carried out by him together with other persons not in custody. Now it appears clear that nowhere in the course of the evidence was it suggested by any witness that this appellant was in co-operation with any person other than the members of his family in the course of the row that erupted on the premises that night and no doubt that is why the magistrate saw fit to alter the charge by deleting the words "in the company of persons not in custody". Having done so however it is. I think, conceded by the Crown that the next step proper to have been taken was to have called upon the appellant to plead to the altered charge in accordance with the provisions of subsection 2. It may also be noted, although the point has not been made, that in such circumstances, where the charge is altered, it is also the duty of the magistrate to allow the accused to recall witnesses and to examine them on matters relevant to such amendment. It is conceded that none of these particulars were attended to by the magistrate on this occasion. Mr. Sanguinetti, who does not concede that the omission of this observance was merely a technicality has drawn the court's attention to certain decided cases in which non-observance of provisions of the Ordinance, which he alleges are of a much more technical nature, have nevertheless resulted in the allowing of appeals. He referred me to Chan Kam-chau and Another⁽¹⁾ a case in which there had been non-compliance with the provisions of section 81(3) (b) of the Magistrates Ordinance which obliges a magistrate to recite the ingredients of an offence to an accused person and to explain them before accepting a plea of guilty. Criminal Appeal No.378 of 1972 was also cited tome. That was a case in which there had been a failure to adjourn a hearing to a certain date the hearing being adjourned sine die. This, it was found by the learned judge, to be incorrect in view of the provisions of section 20 of the Magistrates Ordinance. These are matters which Mr. Sanguinetti alleges were insubstantial in their nature and need have occasioned no miscarriage of justice but nevertheless the courts in those cases considered the failure to observe the exact terms of the Ordinance to be of sufficient substance to allow an appeal based upon that objection. It appears to me that that ground alone is sufficient to dispose of the present appeal. There is no question but that an accused person should be called upon to answer to such an amended charge. Mr. Amey, by way of reply, suggested that no miscarriage of justice occurred since the alteration itself was not an alteration of a material or essential particular and the appellant must have been aware, upon the alteration of the charge, that the nature of the offence with which he stood charged remained substantially unchanged. I cannot accept that argument. It appears to me that where a charge alleges that an accused person has carried out an assault in company with persons unknown it may make a considerable difference to the manner in which he regards the charge, and to the manner in which he proposes to defend himself against it, that he himself is aware that he was in no such co-operation with other persons and that the only thing that could be urged against him is an assault by himself in his solitary person or with others who are known. Therefore it seems to me that non-compliance is a non-compliance of substance and upon that ground alone I would have been prepared to allow the appeal against conviction on the first charge.

6. With regard, however, to that charge and to the other two charges which still subsist the next point of appeal was that the learned magistrate did not evaluate the evidence in a satisfactory manner before arriving at the conclusion to which he came. It is clear that he did recite the principal elements of the evidence produced before him both by the prosecution and by the defence and those recitals consist of a kind of precis of the evidence of each of those witnesses. Having done that, a task which occupied some four and a quarter pages of the five and a half page list of findings, he went on to say:

"Having carefully considered all the evidence in the case I was left in no doubt that the defendant assaulted Kan Wai causing him actual bodily harm."

Mr. Sanguinetti has drawn my attention to certain observations made by this court in respect of the duties of magistrates and judges when giving reasons for verdict in criminal cases. Now it is always a delicate point for a Court of Appeal to decide to what extent it is entitled to intrude upon the domain of a trial judge or magistrate in respect of findings of primary fact. Certainly, there are cases in which the body of evidence led on behalf of the prosecution and the body of evidence led on behalf of the defence are each of them so simple so straight-forward and so succinct and within such a short and clear compass that the magistrate can virtually do no more than recite the evidence and then say that he believes one set of witnesses rather than another. Beyond such a simple case I think it may be said that there are cases, somewhat more complicated than that, in which nevertheless the failure of the judge or a magistrate to assign reasons for rejecting one body of evidence rather than another may not necessarily be fatal, since it may be evident, from what has been recited of the evidence, that such discrepancies or incoherences as exist in the story which he eventually does accept are of minor nature and therefore too trivial to have disturbed the judgment of a reasonable magistrate. But where the body of evidence upon which the Crown relies in a criminal case shows on the face of it, difficulties and incoherences of a substantial sort then I think in any such case it must always be the duty of a magistrate or a judge, in giving reasons for deciding which body of testimony he believes to discuss those difficulties and to give some reasonable indication of the manner in which he has disposed of them.

7. In the present case, clearly the credibility of the witnesses was the matter of primary importance and I think it is undoubted that there were certain peculiarities in the prosecution case which called for some discussion. A number of matters in this connection have been referred to by Mr. Sanguinetti. I don't propose to discuss those matters in detail. There are, however, one or two outstanding features of the prosecution evidence which certainly required comment of some sort. First among those was the fact that the testimony of the police officers was that they had gone to the premises as a result of information received by an informer. That testimony was given by one of the police officers and the information, according to the testimony of another of them, must have reached them about 1.00 a.m. The information could only have been information that trouble either was taking place upon the premises or was going to take place. But the plain fact is that none of the police officers went to that premises until 2.30 p.m. an hour and a half later. The prosecution case was that in any event there was no trouble taking place then when they got there and that it didn't break out until about 20 minutes later whereupon the police party the members of which had been seated at tables intervened. That is undoubtedly a curious piece of evidence which warranted some comment. The evidence was that all five officers had gone off duty at 1 a.m. It was suggested to them that they simply happened to be in the premises enjoying themselves when the trouble broke out but this was denied. There is no reason why they should not have gone there as guests and on the face of it that seems much the more likely explanation of their presence there. If that part of their story is false one is left with some suspicion about the rest of it.

8. Again, there was the question of what precisely happened when the police party intervened. Three of the officers said that they actually saw the appellant strike the complainant but this was denied not only by the appellant and his family but by the manager of the restaurant who on the contrary said that the appellant had been gratuitously assaulted by P.W.3 It is common ground that the appellant received an injury to his head which laid the scalp open and required stitching and that he bled very freely as a result of it. His story was that he had been assaulted by the police with a pair of handcuffs and this was denied. Photographs which were shown to the court and which have been produced in this court certainly would seem to favour assault of that sort rather than the prosecution suggestion that the injuries could have been sustained as a result of a fall on the floor. The doctor's evidence does not in any case support the latter idea. That observation is especially reinforced by the fact that the only evidence as to how his injury was sustained was that given by the appellant himself. There was no evidence from the other side that the appellant struck his head against anything when he fell upon the floor. There was therefore an absence of evidence upon the one side and positive testimony on the other as to how the injury had been received. This again did not receive any discussion or comment.

9. It has been conceded I think on both sides in this case that there were, in a sense, two parties to what occurred after the police intervention. There was the police party and there was what I may call the appellant's family party. The complainant himself could only say that it seemed that it was the appellant who had hit him. But upon the defence side there was one witness at least who might be regarded as thoroughly independent. That, of course, was the manager of the restaurant and his testimony in general tended to support the version given by the appellant of what occurred rather than the police version. It is not for me to say whether he was telling the truth or not. The point is that here was evidence strongly in favour of the defence from an apparently independent source and no reason was given by the magistrate for disbelieving it. Another matter which tends in the same direction is the undoubted fact that the daughters of the appellant were acquitted, together with him, upon the fourth charge upon which they were all jointly charged with assaulting a police officer in the execution of his duty. Now that seems to me to be a matter of importance because it is clear that the magistrate must have disbelieved some part of the police evidence in order to arrive at that conclusion. The scene described by all the witnesses involved was one of concentrated action in which a variety of incidents occurred in rapid succession. The police officers testified that the two girls did assault one of their number and one of the girls undoubtedly received an injury to her chin. The girls strongly denied the assault. It is evident that some part of the police evidence as to what happened must therefore have been disbelieved and the defence version accepted. That leaves this court in the position that it cannot be sure, since nothing was said about the matter, to what extent the prosecution witnesses were accepted and to what extent rejected. Evidently some degree of rejection must have occurred. With regard to the need to evaluate evidence, I need only refer to the words used by Sir Ivo Rigby, then Chief Justice, in CHENG Kam-man v. The Queen, Criminal Appeal No.426 of 1969, a case somewhat similar to the present inasmuch as the magistrate having considered two bodies of contradictory evidence put before him then gave very short reasons in the finding, entitled "judgment" in which he said:-

The learned Chief Justice commented at page 3 of the judgment that since the magistrate had reserved judgment for seven days it might have been expected that he would have given a careful and reasoned judgment dealing with the facts and law applicable to the case. Later at page 7, he said:

"I feel bound to say that in a serious charge of this nature involving a man's freedom and liberty, one is entitled to expect that some attempt will be made by the magistrate trying the case to sift and analyse the evidence given and the law applicable to the facts, and that such evidence will not be summarised in a mere general expression of belief of the prosecution witnesses and disbelief of the defence."

I would not wish to say anything which would seem to imply the necessity for an elaborate, casuistical, discussion of the facts put before a busy magistrate when he comes to record his findings. I can only say, in line with the authority already quoted, that where there is anything so questionable in the evidence led in support of a criminal charge as to raise a doubt about the reliability of the witnesses giving that evidence it is desirable that the magistrate should say enough to disclose that he is aware of the difficulty and to indicate the grounds on which he is disposed to disregard it.

10. For these reasons I do not think the convictions can be regarded as safe or satisfactory and they are set aside and the sentences based upon them are quashed.

Representation:

Sanguinetti (Sousae & Co.) for Appellant.

Amey C.C. for Crown/Respondent.