HKSAR v. LAI CHEONG NANG AND OTHERS

HCMA 763/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 763 OF 1999

(ON APPEAL FROM ESCC 1503/1999)

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J U D G M E N T

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1. These Appellants appeal against their convictions on a charge of Common Assault for which they were convicted in the Magistracy in June 1999 and now appeal against those convictions on the basis, first that the Magistrate erred in law in that his findings were inadequate and failed to canvass issues, or deal with salient points, conflicts and inconsistencies in the case, or evaluate the evidence, or demonstrate that evidence in the case had been evaluated in a proper manner. The inherent improbabilities in the evidence were set out in detail by counsel in his skeleton argument.

2. The second ground, which is a minor one, is that the Magistrate stated that he had observed the demeanour of all witnesses very carefully but omitted to state what conclusions, if any, he drew from such observation.

3. The further ground of appeal is that the Magistrate's treatment of the Defence case was general, vague and wrong and that he did not deal with the prosecution case properly.

4. The major ground is that the Magistrate's Statement of Findings were inadequate. Having considered the Statement of Findings and considered the case, I agree that they were inadequate, in fact so poor that it was impossible to find out what the case was about without going right through the whole of the transcript.

5. It is quite clear that the Magistrate did not take any responsibility at all for preparing a proper Statement of Findings. It is well-known from the case of the R v. Chong Kam Sau Mag App 859 of 1985 that:

"the Magistrate should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The Magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore, will enable an appellate court to perform its duty."

6. The formal Statement of Findings is merely four simple sentences in which the Magistrate refers those interested to his findings which were given in an open court at the end of the trial. However, when one turns to that material, it is rambling mishmash of speculation and indirection, which certainly does not help an appellate court to assess what the case was about, or why these convictions are safe.

7. In the circumstances, I allow the appeal against conviction in respect of all three defendants.