Chan Wah v. The Queen
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CACC000984/1977
IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION -----------------
----------------- Coram: Mr. Commissioner Liu, Q.C. in Court Date of Judgment: 30th November 1977 ----------------- JUDGMENT ----------------- 1. The appellant was charged with another man that on the 17th June 1977, inside the Kwok Dao Restaurant at Tai Po Road, they did take part in an unlawful fight. 2. The prosecution called two friends of the appellant's co-accused, and they both testified that the appellant was seen fighting with his co-accused. Their evidence was accepted by the learned Magistrate who described them as honest witnesses. 3. The appellant elected to and did give evidence, and he explained that on the day in question over the use of a restaurant telephone, he was attacked by his co-accused and some of his friends and that the incident led to both parties being taken to a police station and thereafter charged with the present offence. 4. In the Magistracy, the co-accused of the appellant pleaded guilty with a plea of not guilty taken from the appellant, hence these proceedings before the learned Magistrate. 5. For the purpose of this appeal, evidence relating to the other matters ventilated in the Court below has little significance. Mr. Sanquinetti, counsel for the appellant, submitted that an issue of self defence had been raised by implication at the trial. I do not propose to dwell on counsel's contention, certainly not for want of respect, as this appeal turned on another point of great persuasion. Suffice it for me to say that I find myself at variance with that submission of counsel. 6. Returning to the evidence of the appellant: he told the learned Magistrate that he did not retaliate and did not assault his co-accused nor any of his friends. Both counsel at bar were of one voice that the appellant has not been recorded as claiming to have made no effort in defending himself. The learned Magistrate in his elaborate Statement of Findings concluded, and I quote:
In the cross-examination of the brother of the appellant, the following questions and answers transpired:
There is no real divergence of opinion as to the proper interpretation of this series of questions and answers that according to his brother, the appellant defended either himself or his brother in the course of his brother's retreat. 7. The proceedings before the learned Magistrate were well modulated, the evidence at the trial generally well evaluated and the written findings well reasoned. It is therefore not without regret on my part that this appeal on matters, in all other respects, of an admirable process of judicial investigation and evaluation falls to be decided on one passage in the conclusion of the learned Magistrate. 8. It is evident that the learned Magistrate relied heavily on an alleged denial of self-defence by the appellant. It was claimed by the appellant that he never assaulted or attacked his co-accused; nor did he retaliate. Nowhere in the notes of proceedings, as conceded by the Crown, did the appellant ever assert that he failed to react in self-defence. Thus, in judging the appellant's credibility the learned Magistrate took into account a matter unsupported by the recorded evidence. We know not what view the learned Magistrate would have taken of the appellant's credibility had his evidence been interpreted in the way as we all understand it today. For this reason, it would be unsafe and unsatisfactory to allow the conviction to stand. 9. I have been invited by counsel for the Crown to invoke the proviso, but I do not find sufficient justification to accede to that invitation. 10. It remains for me to say that this appeal must be allowed, and I do so allow it. Consequently, I order that the conviction be set aside and the orders for the fine and costs quashed. If they have been paid by the appellant, they must be returned to the appellant.
Representation: Mr. Polson, counsel for the Crown/Respondent. Mr. Sanguinetti instructed by Director of Legal Aid for Appellant. |