THE QUEEN v. CHAN CHUN CHING

Headnote

Evidence - demonstration by witness - a description of the demonstration should appear in the record.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1721 OF 1988

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J U D G M E N T

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1. The appeals against convictions for appellant assaulting a policy officer contrary to section 80 Cap. 232, and disorderly conduct n a public place contrary tot section. 17(B)(2) of Cap, 245.

2. The police officer had written out a traffic ticket and placed it under the windscreen wiper of the appellant's car. The officer left and continued his patrol. Later he returned to the vicinity of the car. The appellant was standing beside the car and an altercation took place, the appellant using foul language. The prosecution case was that they were both standing beside the car when the appellant opened the door in such a way that it would have struck the officer, if the officer had not warded it off with his hand, which suffered an abrasion. That was the subject matter of the assault charge.

3. About 10 11 persons gathered around and some of them expressed sympathy with the appellant, one of them said 'Bloody cops good at nothing except booking vehicles. That is the subject matter of the second charge.

4. When I read the papers, before the hearing of the appeal, I could not visualize the scene at the time the door was opened. There was no sketch. From the oral evidence I found I could not place the appellant and the officer; in relation to each other and to the car. When the appeal came on for hearing I discovered that both crown counsel and the appellant's counsel had the same difficulty as I had. Together we tried to put the scene together, but could not satisfactorily do soy for example from part of the officers evidence it a appeared that when the door was opened, the officer must have been within the arc that would be traced by the opening door.  From another part of the evidence it would seem difficult and awkward for the appellant to have used the door handle to open the door, if the officer was in that position, and if the door was hinged at the rear, as cardoors nowadays invariably are, except for some large limousines intended to be chaffeur driven.

5. In the circumstances crown counsel, not surprisingly, could not support the conviction and I find the conviction unsafe and unsatisfactory, and I set it aside.

6. While giving evidence the officer demonstrated part of the incident. The magistrate simply noted that he demonstrated, but did not describe the demonstration. A demonstration is part of the evidence, and the record should include a description of the demonstration. That description should be read out to the parties, so that they can take issue with it if they think it incorrect.

7. A magistrate should remember that the record he keeps is not intended merely for his own convenience, but is the official record of the case and should be kept in such a manner as to enable an appeal court to fully appreciate the evidence. If a sketch would be helpful, the magistrate can properly ask the witness to make a sketch.

8. Crown counsel also felt unable to support the conviction on the disorderly conduct charge, as it did not appear from the evidence that there was any likelihood of injury to a person or damage to property, see R. v. Kam Magistrates Cr. Appeal 930 of 1983. I agree.

9. Both appeals are allowed and the convictions and sentences set aside.