THE QUEEN v. TSE PAK HANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 887 of 1988

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J U D G M E N T

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1. The Appellant was charged with two offences, one of assault occasioning actual bodily harm and the other of claiming to be a member of triad society.

2. He pleaded not guilty to both charges. Three witnesses gave evidence at the trial, one for the prosecution and two for the defence. There was however other evidence put before the court pursuant to section 65C of the Criminal Procedure Ordianance, namely the evidence of a medical practitioner who examiner the complainant some 24 Hours after the alleged assault.

3. The only witness for the prosecution was the Complainant. His evidence briefly was that, at some, time before the incident out of which these charges arose, he had occasion to sack another employee at the restaurant where he worked. Subsequently, that employee came back to the restaurant with, among others, the appellant, The Appellant then attacked the complainant, claimed that he was a member of a triad society and inflicted injuries on the Complainant.

4. The appellant gave evidence that there was an incident during which the complainant was attacked but that his role was not as a participant in the attack but as a mediator who attempted to prevent the attack on the Complainant. The Appellant also called a witness a fellow employee of the complainant at the restaurant. That witness confirmed the Appellant's version of the incident.

5. During cross-examination of the complainant it was put to him that during the incident he, the Complainant, had bumped the Appellant, that as a result the Appellant had fallen to the ground, that a chair had fallen on top of him, that the Complainant had removed the chair and then helped the Appellant to his feet. The Complainant agreed with that. The witness called by the Appellant also confirmed that the Complainant has so acted.

6. In his Statement of Findings tale learned magistrate mentioned that the Appellant's version was supported by that witness. Although he made a specific finding that he did not believe the Appellant, he nowhere said that he did not believe the witness who was called on behalf of the Appellant, nor did he make any reference to the concurrence between what the Complainant said in cross-examination in the evidence I have just referred to and the evidence of the witness called by the Appellant. This is not a case where the magistrate was faced with only two witnesses, one putting forward one version and the other putting forward a contradictory version, a conflict capable of being resolved simply on the basis of the impression created by the demeanour of the witnesses.

7. Here there was in the evidence itself a matter which required resolution by the magistrate before he could come to a conclusion beyond reasonable doubt that the complainant's story was truthful and reliable. The failure of the learned magistrate to demonstrate why he did not accept the evidence of the defendant's witness which coincided with what the Complainant said in cross-examination and which was consistent with the Appellant's case makes the conviction unsatisfactory. It is therefore unnecessary, as it was unnecessary for Mr. Eddis, to go through all the grounds of appeal because it is practically conceded by the Crown that the appeal must succeed.

8. I allow the appeal and quash the convictions and sentences.