The Queen v. Chiu Sai Chung and Others

Case No.CACC 862/1983

Court

Court of Appeal

Date28 Jul 1983

Judge—

Case Document

100%

CACC000862/1983

IN THE HIGH COURT

1983 No. 862

(Criminal)

BETWEEN

	THE QUEEN	Respondent
	and
	CHIU SAI CHUNG	1st Appellant
	LEE HAU FU	2nd Appellant
	WONG YU TONG	3rd Appellant

----------

Coram: Jones J.

Date: 28th July, 1983.

__________

JUDGMENT

__________

1. On the 23rd May 1983 the three appellants and the fourth defendant who has not appealed were convicted at the Fanling Magistrate's Court of assaulting a police officer in the due execution of his duty contrary to Section 63 of the Police Force Ordinance Cap. 232. Each appellant was sentenced to three months' imprisonment suspended for twelve months and fined $1,000.

2. The appellants originally appealed against conviction and sentence, but to-day they abandoned their appeals against sentence.

3. The evidence for the Crown was that on the 29th March 1983 a group of police officers went to the Wang Chau fishery market in Yuen Long to carry out a raid in connection with illegal gambling activities. Three police officers went into the market whilst three of their colleagues laid ambush outside. PW3 one of the constables who went into the market chased D5 who is not concerned with this appeal and enlisted the support of two other police officers PW1 and PW2. PW1 and PW2 pursued D5 to a tin shed where he fell down. A crowd which included the three appellants gathered and an altercation took place between them and the police officers. During the altercation, PW1 was assaulted by the three appellants and D4. PW1 was later treated at Pok Oi Hospital and was found to have minor injuries to his cheek and chest. All the appellants gave evidence denying that they assaulted PW1. A1 and A3 said that they saw D5 being pursued by PW1 who fell over a fish barrel, that PW2 and PW3 caught D5 who was pushed to the ground, and when PW1 arrived he assaulted D5.

4. The learned magistrate found that PW1 was acting in the due execution of his duty and was assaulted by the three appellants and D4.

5. In his reasons he dealt first with the prosecution evidence as follows:-

"There were discrepancies in the prosecution evidence. It was strongly argued that because of these, the prosecution witnesses were mutually exclusive and could not be believed. I did not find them so. They gave every impression of being police officers who had been involved in a confrontation with an angry crowd, and who made their observations over a period whilst persons in that crowd, and in particular the Defendants, were milling around them. That there was a confrontation, involving foul language, is not in dispute. Had these officers agreed in every detail of their evidence it would no doubt have been argued, and more cogently, that they must have agreed their evidence. It came as no surprise to me that there were discrepancies, and it seemed to me that no one officer's evidence would, if believed, necessarily exclude that of another."

6. The learned magistrate referred to the demeanour of the appellants as unconvincing. He went on to analyse certain parts of the evidence which he accepted and other parts which he did not accept. The issue was essentially one of fact to be determined on the credibility of the witnesses.

7. The thrust of the appeal was directed to whether the learned magistrate adopted the proper standard of proof beyond all reasonable doubt and the correct burden of proof.

8. The specific grounds of appeal were:-

"	(i)	At Page 5 paragraph (e) of his Statement of Findings the learned magistrate stated: 'Since I could not accept the main point of the defence case ... I could find nothing in the defence case to make me think there was any reasonable doubt that P.W.1 was assaulted by all of the first four Defendants'. In so stating the learned magistrate wrongly held that unless he positively accepted the evidence called by the defence, that evidence could not raise a reasonable doubt.
	(ii)	At Page 5 paragraph (e) of his Statement of Findings, the learned magistrate stated: 'I further accepted the evidence in particular of P.W.1 as to the assaults on him. As I have said, there was nothing in the evidence of the other prosecution witnesses to make me disbelieve him'. In so stating the learned magistrate wrongly held that once he had accepted the evidence of the first witness for the Crown, it was necessary for the Defence to disprove such evidence.
	(iii)	At Page 4 paragraph (b) of his Statement of Findings, and in his Judgment at page 43 of the Court record, the learned magistrate stated that he did not find the defendants 'convincing'.
	(iv)	On numerous occasions throughout his Judgment and Statement of Findings the learned magistrate based his findings of fact upon evidence of the Crown which he did 'accept', and evidence of the Defence which he 'did not accept'. In so doing he did not apply the proper standard of proof beyond reasonable doubt."

9. Mr. Bell who appeared for the appellants cited several authorities in support of his submission. The first was Leu Leung v. R.⁽¹⁾ where Huggins J. (as he then was) referred to the following passage in the learned magistrate's Statement of Findings:-

"	"I came to the view that D.W.1'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."

10. That was clearly a misdirection: the question before the learned magistrate was whether he believed the evidence for the prosection and the fact that he disbelieved the evidence for the defence did not necessarily mean that he had to believe the evidence for the prosecution." The appeal was allowed on the grounds of this misdirection.

11. In R. v. Pau Wing Shing ⁽²⁾ the Court held that it is not the correct approach in a criminal case to determine guilt or innocence on the basis of deciding which of two stories the Court should believe. This case was cited with approval in R. v. Lok Chi Wai ⁽³⁾ and Khou Kwok Wai v. R^.(4).

12. These statements of the law are clearly correct. However, did the learned magistrate adopt the wrong test?

13. It was submitted by Mr. Bell that the learned magistrate did not make a specific finding that he believed the evidence of the prosecution witnesses. However, I do not agree. His findings clearly indicate that on the material issues he accepted the Crown evidence.

14. Mr. Bell levelled criticism at the learned magistrate's findings that as he was unable to accept the appellant's evidence that PW1 had fallen over and assaulted D5, no reasonable doubt could arise that PW1 had not been assaulted.

15. At the end of the prosecution case, there was a case to answer with the result that if the evidence was accepted, a reasonable jury, if properly directed, could convict. The evidence of the appellants then became evidence in the trial to be assessed in the same manner as that of the prosecution witnesses. If their evidence was believed or raised a reasonable doubt with regard to the truth of the prosecution evidence, they were entitled to an acquittal. Having considered their evidence the learned magistrate did not find that they had raised a reasonable doubt.

16. At the end of the day, the learned magistrate was left with two versions. He could accept either that of the prosecution or that of the appellants or reject both. Having considered the whole of the evidence, after observing the demeanour of the witnesses, and taking into account the various discrepancies he found the charge proved.

17. In my opinion, the learned magistrate did not adopt the wrong approach either to the burden or to the standard of proof that was required.

18. The appeals against conviction are therefore dismissed.

( B.L. Jones )

Judge of the High Court

(1) C.A. 699/1968

(2) (1970) H.K.L.R. 47

(3) (1973) H.K.L.R. 577

(4) C.A. 91/1977

Representation:

Mr. A. Bell (H.M. So & Co.) for Appellants.

Mr. F.C. Whitehouse (Legal Department) for Crown/Respondent.