Yap Kai Wang v. The Queen

Case No.CACC 1120/1982

Court

Court of Appeal

Date28 Dec 1982

Judge—

Case Document

100%

CACC001120/1982

Criminal Appeal No.1120 of 1982

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

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BETWEEN

YAP KAI WANG

Appellant

AND

THE QUEEN

Respondent

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Coram: Hon. Liu, J.

Date: 28 December 1982

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JUDGMENT

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1. This appeal arose as a result of the appellant's conviction in connection with an incident that occurred on29th August 1982 at about 1.20 a.m. in the Victoria Park near a toilet. The appellant was with a group of friends; so was the alleged victim. It would serve little purpose for me to describe in detail what was said to have transpired. But the defence was and still is built on the contention that the appellant had an honest claim of right in demanding monetary compensation.

2. After one of the friends of the appellant was allegedly pushed, the appellant approached the other group of young persons and spoke in what could best be described as gibberish. He then challenge the alleged victim to a fight but offered him the option to pay a $100 compensation. It was alleged that he punched him at his chest and that when a friend endeavoured to intervene, that friend's face was pushed and his spectacles smashed. Under intimidation, so ran the Crown's allegations, $80 was taken out of the victim's wallet and before the cash was decidedly handed over to the appellant, the appellant snatched it.

3. The appellant was disallowed to testify when he elected to give evidence. That forms Ground No.l of his appeal. Mr.Nicholas for the Crown does not resist the appeal on that ground, but it was urged that with over-whelming evidence for a prima facie case against the appellant, justice dictates a retrial by another Magistrate.

4. It was submitted on behalf of the appellant that the whole test of dishonesty in theft lay in the mental element of belief and that there was insufficient evidence to establish beyond reasonable doubt that the appellant harboured that element of dishonesty. Miss Woo appearing for the appellant was apparently not content with the concession made by the Crown, and she pursued the rest of the Grounds of Appeal in support of her contention. It was thus strenuously argued that the case ought not be sent back for a retrial.

5. We are merely concerned with a prima facie case. After all, the appellant was not even heard. The proposed evidence, if accepted, is sufficient to found a prima facie case against the appellant. On the allegations of the Crown, this is no trivial matter as happened on that location, at that time of the day and between these two groups of youths. I accept that justice does require this case to be retried.

6. Consequently, I allow the appeal on Ground 1 and quash the conviction of the appellant on that ground. It is quite unnecessary to go into the other criticisms against the findings of the learned Magistrate. Suffice it for me to say that there is sufficient evidence for a prima facie case against the appellant and that the matter ought to be sent back for a retrial. I order a retrial by another Magistrate only for the reason that justice should also appear to be done. I order:-

	(1)	appeal allowed on Ground 1;
	(2)	the appellant's conviction be accordingly quashed;
	(3)	the fine, if pay, to be refunded;
	(4)	compensation, if paid, likewise to be refunded;
	(5)	a retrial by another Magistrate.

	(B. Liu)
	Judge of the High Court

Representation:

Mr. Nicholas, Counsel for the Respondent.

Miss Alice Woo of Messrs. Liu, Chan & Lam for the Appellant, Yap Kai Wang.