Yuen Sing-yi v. The Queen
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CACC000599/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 599 OF 1979 -----------------
----------------- Coram: Silke, J. Date of Judgment: 3 August 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted after trial at San Po Kong magistrates court on 23rd May 1979 of the offence of assault occasioning actual bodily harm contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212. 2. He now appeals against the conviction. Mr. Kotewall, for the appellant, criticizes certain phraseology used by the learned trial magistrate on his Statement of Findings: in particular his comment that "the defendant elected to give evidence and apart from a bald denial of the allegation he did not assist the court further". It was submitted that the use of the phrase "assist the court further" implied an onus upon the defendant which did not exist. While I think the choice of words to be somewhat unfortunate I do not think the phrase to mean more than a simple comment on the brevity of the appellant's evidence in the court below. 3. I might add that it would be of assistance to an appeal court in understanding the evidence on record if the cross-examination of a witness were to be recorded in question and answer form - rather than, as here, simply the answers. 4. The prosecution evidence consisted of that of a doctor as to the injuries he found upon the only other prosecution witness, Chan Kam Shing, the person assaulted. 5. Chan gave it in evidence that the defendant and three companions entered his factory where he was alone. There was a dispute about the return of some money and, upon Chan's refusal to make the return required, he was struck on the face by the appellant. 6. The appellant's friend, he says, tried to stop him and Chan fell to the floor, in the course of the fall injuring his arm. 7. While he was on the ground he felt a pain in his back and he goes on to say that he was hit on the back but he did not know what with or by whom. On examination he was found to have three bruises on his back. 8. When the appellant entered the factory he had been carrying something rolled up in a newspaper - we do not know what - but when Chan stood up after he fall he did not see any of the persons present holding anything. 9. The defendant in evidence denied simpliciter hitting Chan. He was subjected to a very cursory cross-examination by the prosecutor. 10. He called three witnesses in his defence the sum total of evidence of two of them being that there was an "argument" between the appellant and Chan. 11. The prosecutor did not see fit, which could not have been of much help to the learned magistrate, to subject either of them to cross-examination. 12. The third witness called for the defence said that he was an employee working on the floor above the factory: he heard what he described as a "conversation" below, went down and saw people having an "argument". He identified that persons as the appellant and Chan. He went on "We then went to separate them". 13. In cross-examination - for there was a little here - he said "I separated them myself". He also said he did not see the appellant fight with Chan when he went downstairs. 14. The learned magistrate described the evidence of the defence witnesses as "so vague that it does not assist one way or the other". Mr. Kotewall criticized the use of that phrase for he says the evidence was not "vague": it expressly contradicted the prosecution evidence of a fight. I have some sympathy with this contention for the prosecutor could have tested the "argument" evidence but did not see fit to do so. 15. However the third witness did say he went to separate them and one does not normally "separate" an argument. 16. One further matter came to be criticised in the Statement of Findings and that was the sentence: "Thus, again one has a case where the determination of the issues depends on an assessment of the relative credibility between the main protagonists". On the face of it Mr. Kotewall's contention that this indicated a wrong approach by the learned magistrate has substance. But the learned magistrate did expressly warn himself of the burden upon the prosecution. I do not think this sentence to indicate a balancing of one side as against the other. Very frequently in these courts the assessment of credibility is, bearing in mind the onus on the prosecution of proof beyond reasonable doubt, as the learned magistrate did here, a necessary concomitant of any verdict. I think that is what the learned magistrate intended here. 17. Mr. Ryan for the Crown submitted that even if there was no evidence that the appellant inflicted the injuries - minor - found on Chan's back they were inflicted in his presence and he would have had an intent common with person who did inflict them. There is however no real evidence of common intent apart from speculation. 18. Overall I have - that perogative of an appeal court - a lurking doubt as to the occasioning of actual bodily harm by the appellant. There was evidence of a common assault which would fully justify the lower courts convicting of that offence. The learned magistrate had jurisdiction so to do and I am entitled to exercise powers open to the learned magistrate. 19. I would allow the appeal to the extent that I substitute a conviction of common assault and quash the conviction of assault occasioning actual bodily harm. 20. In the light of the course I took I heard Mr. Kotewall on sentence giving leave to appeal out of time. This without objection from the Crown. 21. The assault was a minor one and while the sentence imposed of 9 months suspended for two years might have been appropriate to the conviction in the lower court it was not to the conviction substituted here. 22. Mr. Kotewall urged me to consider a binding over with no conviction recorded but I was not prepared to accede to this. People must not take the law into their own hands. If this was, as it appears to be, a business dispute then there are suitable tribunals in which to air it - an assault does not solve anything and would possibly exacerbate a situation. 23. In the event I quashed the sentence imposed and fined, as was within the power of the learned magistrate to do, the appellant $300.
Representation: R. Kotewall Esq. (D.L.A.) for Appellant B. M. Ryan Esq., Crown Counsel, for Respondent |