Chan Tin-choi v. The Queen

CACC000584/1982

BETWEEN

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Coram: Sir Alan Huggins, V.-P.:

Date: 23 July 1982

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JUDGMENT

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Sir Alan Huggins, V.-P.

1. The Appellant was one of four persons charged vita the offence of fighting in a public place. He is the only one who pleaded Not Guilty. He was the driver of a taxi. He appears to have let off a fare in the vicinity of the Excelsior Hotel, whereupon the other three Defendants attempted to board the taxi. They were a father and his two sons. It was they who gave evidence in the case against the Appellant, having already pleaded Guilty and been sentenced. Their story was that when they got into the taxi the Appellant asked where they wished to go and, having been told where they wished to go, he then said “Prohibited area. You cannot board”, at which they were annoyed because they felt that it was only because of their destination' that he was refusing to take them. According to the father, the Appellant used bad language and then punched him, after which there was an exchange of blows. Unfortunately the Appellant did not see fit to go into the witness box. It is therefore not surprising that the learned magistrate was inclined to accept the evidence of the prosecution witnesses.

2. However, at the time that he recorded the conviction the magistrate made some observations which raised doubts whether he fully appreciated the burden of proof. Among other things he said:

"I must say I am satisfied was fight. At very least D4 involved I know self defence to this charge. However in absence of evidence for D4 I am not satisfied was acting in self defence. I am left with evidence of Dl certain and D2 that blows were struck. I am not satisfied about evidence.

and it must finally be observed that the transcript of the evidence has been certified by the magistrate himself.

3. I do not wish to be pedantic in my interpretation of what the magistrate said. The only evidence before the court was the evidence of the prosecution: the magistrate said he was not satisfied about the "evidence". Again, he said he was not satisfied that this Appellant was acting in self defence. It was not for the Appellant to prove that he was acting in self defence but for the prosecution to negative the possibility. The fact that the injuries were consistent with the prosecution evidence is neither here nor there. The issue was whether this Appellant was joining in a fight or was simply protecting himself against an attack by his would-be fares. It was a very difficult issue to decide and if the language used by the magistrate had been beyond question I could not have interfered, but I feel that this verdict is unsafe and unsatisfactory and I allow the appeal and quash the conviction.

23rd July 1982.