Mok Wai Ko v. The Queen

CACC001088/1980

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Coram: Liu, J. in Court.

Date of Judgment: 20th January, 1981

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JUDGMENT

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1. At about 12.40 a.m. on the 7th October, last year, outside 1008, Tai Nam Street West, there was a commotion, which was admittedly caused by the appellant's co-defendant implicating allegedly also the appellant. The police intervened, and both parties were subsequently charged with unlawful fighting in a public place. The appellant's co-defendant pleaded guilty. The appellant pleaded not guilty but was convicted by the learned magistrate.

2. A man by the name of Lui was called by the prosecution. He testified that he was a friend of the appellant's co-accused. In fact, he had a closer tie with the 1st defendant that he was first prepared to admit; he was his employer. Lui gave evidence that he saw both defendants fight and that he endeavoured to put an end to it but in vain. He cannot be said to be a wholly impartial witness. At the inception, he was less than completely frank with the learned magistrate as to his association with the 1st defendant and a fact which might suggest his own possible involvement. He failed to give a full description of what had transpired immediately before the commotion. I will return to this latter aspect in a moment or two, but suffice it for me to say that his assertion to the court that he attempted but failed to stop the fight must not be received without caution.

3. According to Constable Ng, the fight had stopped before he intervened. The appellant denied that he ever retaliated before the learned magistrate, and he lays great stress before me this morning on his self-restraint at the material time. He told the court below that the 1st defendant injured himself accidentally, and he supplemented it a little later with the statement that the 1st defendant had himself cut on the leg while chasing him in the assault. Apart from his demeanour then observed by the learned magistrate, there seemed to be little real justification for the observation that the appellant was unconvincing in his description of the cause of the 1st defendant's injury on his leg.

4. The appellant appears to be much aggrieved to-day. It might well be that the same display of grievance before the learned magistrate led to an impression of aggression, so easily misunderstood. Much reliance was placed on the evidence of Mr. Lui who is, in my view, not wholly impartial. He was the employer of the 1st defendant, and only upon his recall by the learned magistrate after defence did he then disclose the breakage of two iron shelves prior to the commotion. What is more alarming is the last set of question and answer in the evidence of Mr. Lui upon his recall.

5. In the circumstances as known, it is inconceivable that Mr. Lui could have been unaware of the cause of the commotion. I have no wish to whittle away the findings of the learned magistrate by too critical an evaluation, but for all these reasons, in the end I am left with a lurking doubt as to whether the conviction of the appellant is safe and satisfactory. There is, in my view, enough for this court to intervene. I would and do allow the appeal, quash the conviction and set aside the sentence.

Representation:

Mr. S.R. Mason-Parker, counsel for the Crown.

Appellant MOK Wai-ko in person.