Chan Kan Cheong v. The Queen

CACC001168/1979

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Coram: Li, J.

Date of Judgment: 25th January, 1980.

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JUDGMENT

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1. This is an appeal against a conviction of assault occasioning actual bodily harm. On the 6th September, 1979 the appellant was one of the work team of the Public Works Department to conduct a survey along a slope at Hill Road. His duty, inter alia, was to carry the tool box. At the time of the incident he was holding a levelling stick to assist his colleague Leung (DW2) for the survey. His colleague Chan Kin (DW3) was responsible for regulating traffic to enable the survey to take place. In the course of so doing DW3 had to stop a public light bus driven by the complainant ensued. Eventually the complainant drove past DW3 and was chased by DW3 to the junction of Hill Road. A second argument then followed at the junction. After some exchanges and a struggle the appellant suffered a fractured little finger with laceration. These facts are not in dispute at all.

2. What is in dispute is the circumstances under which the complainant suffered fractured little finger. According to the complainant, when the second argument at the junction of Hill Road took place all three of the defence witnesses, including the appellant, had joined together in chasing after and arguing with the complainant. The argument took place at the junction of Hill Road. DW3 first knocked on the door of the public light bus, DW2 seized the complainant's collar through the window of the public light bus and the appellant, using a wooden box hit at the window sill of the public light bus upon which the complainant was resting his hand. The box hit the little finger and fractured his little finger. He was bleeding at the time. He parked his public light bus, chased after the assailant and caught hold of the appellant and DW3. There was a struggle. DW2 then joined in. After some further argument all three of the defence witnesses, including the appellant, were detained and were taken back to the police station. On examination it was found and proved that the complainant suffered a fractured finger.

3. The defence evidence is quite different. It was that the DW3 had an argument in the first place with the complainant. The appellant and the DW2 who were busy doing the survey did not notice it. Nor did they notice any argument at the road junction. The first thing that caught the appellant's attention was that the complainant and DW3 were engaged in a struggle. He intervened to pacify them whereupon the complainant accused the appellant of having injured his finger. DW2 joined in to pacify them and he (DW2) was also accused by the complainant of having injured his finger. Neither DW2 nor the appellant noticed any trouble until the time when DW3 was engaged in a struggle with the complainant. Upon such evidence the finding of the learned magistrate was that he could not believe that the appellant and DW2 did not notice any argument at the road junction until the struggle. At page 13 in the Statement of Findings he said:

"I was satisfied that this altercation took place at the junction of the road which involved the public light bus going past the appellant and DW2. I did not accept that, with DW3 running after the public light bus, and an abusive exchange taking place, the appellant and DW2 could have been totally unaware of this part of the incident."

He also found that the defence witnesses were vague about the position of the wooden box before the incident which was the instrument used for inflicting the injury.

4. At page 14 he also found as follows:

"Whereas PW2 that is the complainant gave what I considered to be an account of how he received the injury which was consistent with the nature of the injury, the defence witnesses were not able to say how he got it."

He also said:

"I did take into account the fact that there was no evidence to corroborate the detail of the assault and that, whereas for the prosecution I had only the evidence of PW2, there were three witnesses for the defence. However none of those witnesses could be said to be independent and I was satisfied that the evidence of PW2 was the true account as to how he came by the injury."

Upon these findings the additional grounds of appeal are as follows:

In his findings the learned magistrate gave reasons why he disbelieved the defence witnesses. On page 8 of the transcript, the appellant, when asked: "Is the box carried by you when working?", said: "Yes, I had to bring the wooden box and wooden stands." On page 10 of the transcript DW2, when asked: "Who carries P1 (i.e. the wooden box) around?", said: "Nobody especially but usually Chan Kin does so." This is certainly in conflict with the evidence given by the appellant.

5. The learned magistrate having heard and seen the witnesses came to the conclusion that they were evasive. He found them evasive because they did not notice the where about of the wooden box before the occurrence of the injury and that they said they did not notice the second argument at the road junction at all. The latter event took place after the public light bus had driven past DW2 and the appellant and after DW3 ran past both of them. They were not performing the survey at the time. When the public light bus could drive past them they must have finished the survey for the time being. The only reason why the complainant's vehicle was stopped was for the purpose of the survey which was conducted by the appellant and DW2 at a spot uphill and a little ahead of DW3. The complainant's vehicle had to drive past them and DW3 had to run past them before the second argument took place.

6. In my opinion there is ample ground for the learned magistrate to find that the defence witnesses were evasive as to the actual event of the case and that they did not tell the whole truth. For this reason I cannot find any fault with the learned magistrate in not giving any credit to the defence witnesses or concluded that they had been evasive and that they were not independent witnesses.

7. Throughout the statement of findings he gave consideration to the version put up by the prosecution as well as that put up by the defence. He came to the conclusion that the complainant's version as to how he received the injury was consistent with the nature of the injury. He found the defence witnesses, including the appellant, were not in a position to explain what happened throughout the incident while they were clearly in a position to do so. It is true that in the latter part of his statement of findings the magistrate said that none of those witnesses could be said to be independent, and he was satisfied that the evidence of the complainant was true account as to how he came by the injury. This does lend colour that he came to his conclusion in accepting the complainant's version by rejecting the defence evidence. However, prior to his saying so he did find that the complainant gave an account of how he received the injury which was consistent with the nature of the injury. This is to be distinguished from the case of LEU LEUNG in Criminal Appeal 699 of 1968 in which the statement of findings was that

"I came to the view that DW1's evidence was unreliable and not to be believed. I therefore accepted the evidence adduced on behalf of the respondent as being a true version of the events leading to the appellant's arrest and found him guilty of the 2 offences with which he was charged."

In that case the basic reason for accepting the complainant's evidence was founded on a rejection of the defence evidence as unreliable. In this case the learned magistrate found the complainant's version consistent with the events. Having come to the conclusion that there was a prima facie case, he found that the defence evidence was not sufficient to tip the scale of balance. In the circumstances the appeal should be dismissed.

Representation:

Miss J. Leong (Peter C. Wong & Co.) for appellant.

Mr. Hawkes, C.C. for respondent.