THE QUEEN v. LEUNG SIU TONG

BETWEEN :

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JUDGMENT

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Preliminary

1. The appellant ("D.1") appealed against his conviction on two charges of common assault. In each instance, he was originally charged with his wife, LIN Ke ("D.2"), with taking part in an unlawful fight in a public place. D.2 was acquitted by the magistrate at the conclusion of the case, but D.1 was convicted of common assault.

2. During the trial, D.1 appeared in person and D.2 was represented by a solicitor. D.1 elected to give evidence on his own behalf, though D.2 did not do so.

Evidence

3. The first charge related to an incident which occurred on 7th June, 1986, and the second to a similar incident, on 9th July, 1986, both at Kwai Chung.

4. In relation to each charge, the main witness was HEUNG Kwok Ping ("P.W. 1") an employee of both defendants.

5. In relation to the first charge, his evidence was that a dispute arose between the defendants on the evening of 7th June. When D.2 asked D.1 for some items to be returned to her, D.1 struck D.2 on the face with his right hand. P.W.1 also saw D.1 holding an iron bar and hit D.2 on her eye, causing a bruise.

6. On the second incident, P.W.1's evidence was that, about 4 p.m., he was with the two defendants at the same newspaper stall when a dispute broke out between them, with regard to some magazines which D.2 refused to give to D.1.

7. Again, he says, he saw D.1 hit D.2 on the back. D.1 then struck him and again hit D.2, this time on her eye.

8. Some supporting evidence was given by P.C. 16003 ("P.W.2") in relation to the first incident. Having been called, he and another police officer went to the Helena Restaurant where they found D.1 and D.2 both slightly injured, D.2 having swollen lips and an injury to the left side of her face. He seized an iron bar which he found there.

9. Another police officer ("P.W.3"), gave evidence that he went to the Helena Restaurant about 4.20 p.m. on 9th July. On his arrival D.2, in the presence of D.1, told him that D.1 had struck her. She was covering the corner of her left eye with her hand while saying this.

Grounds of Appeal.

10. Mr. Pedruco, who argued the appellant's case with considerable skill, relied on a number of grounds.

11. The first ground was that the magistrate was wrong to admit in evidence the testimony of P.W.3 that D.2 had told him in the presence of D.1 that D.1 had hit her.

12. In my view, this evidence is admissible in accordance with the principles set out by Lord Wilberforce in relation to evidence admissible as part of the res gestae in the Privy Council case of R. v. Ratten^(l). The relevant portion of this judgment was repeated at p.329 of WONG Wing-chun v. R.⁽²⁾.

13. I find that this evidence falls within the third category of circumstances in which evidence that would otherwise be hearsay evidence is admissible.

14. The second ground was that the magistrate was wrong not to afford D.2 an opportunity to look at the contents of the statements that were used by P.W.1 to refresh his memory.

15. It was pointed out that an examination of these statements would have shown a number of significant differences between them and the evidence which was given at the trial by P.W.1.

16. This ground could be of substance if there is placed upon a magistrate an obligation, whenever a witness refreshes his memory from an earlier statement, to call for that statement, examine it against the evidence which has been given, and either himself question the witness or pass the statement to a defendant with the suggestion that he should do so himself.

17. There is no such rule. Nor do I think that it can be a ground of appeal that, had an examination taken place during the trial of an earlier statement, this might have afforded to the defendants material upon which they could have cross-examined P.W.1 more effectively.

18. It was next argued that the magistrate wrongly permitted D.2's solicitor to cross-examine P.W.1 in a manner unfair to D.1. It was complained that counsel for D.2 had asked a large number of leading questions of P.W.1, all of which were designed to extricate D.2 and to damn D.1.

19. No doubt this was the case. This was a cut throat defence, in which each of the defendants, either by questioning, by evidence or by necessary implication, was attempting to lay the blame for the fighting which tool place on the other.

20. D.2's solicitor would have been failing in his duty had he not used the opportunity, when cross-examining P.W.1, to try to shift the blame for the blows which were struck onto D.1. There is no substance in this ground.

21. The final ground was that the magistrate failed to resolve a number of inconsistencies in P.W.1's evidence.

22. Counsel pointed to several instances in which, under cross-examination, P.W.1 had shifted his ground.

23. However, although it may be that when directing a jury, a judge ought to assist them, in assessing the credibility of a witness, by pointing to such inconsistencies, it must not be forgotten that a magistrate is performing the functions of both judge and jury. As a general practice a magistrate would be well advised to mention in his statement of findings that he recognizes that there are inconsistencies in a witness' evidence, and made it clear that, notwithstanding them, he accepts the evidence,

24. I do not, however, regard this omission as fatal to the conviction, which is based on an acceptance of the evidence of P.W.1; a further acceptance of the evidence of P.C.19618, which in his view destroyed the credibility of D.1; and a clear rejection of the evidence of D.1 wherever it conflicted with that of the prosecution.

25. The magistrate comments -

"Judging from his demeanours in the witness box, I had no doubt ....... that he was a hot-tempered and impatient man. I am not impressed by his evidence at all."

26. These were two outbreaks of minor violence between a husband and wife, whose relationship seems to have been a fragile one. In relation to each incident each party, while admitting that a fight of some kind took place, blamed it all on the other.

27. Leaving all technical questions on one side, it was for the magistrate to decide whether the wife hit the husband or the husband hit the wife. He found in favour of the wife in each case and I can see no reason to disagree with this conclusion.

28. The appeal against conviction is refused.

(1)    [1972] A.C. 378

(2)    [1978] H.K.L.R. 326, 329