HKSAR v. SUNG YAU CHI

HCMA480/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 480 OF 2005

(ON APPEAL FROM KTCC 1253 OF 2005)

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J U D G M E N T

1.  In this case, the appellant appeals his conviction for fighting in a public place.  He is a 59 year old man with a previously clear record.  He is a retired civil servant.  It is quite clear he is a respectable gentleman and that the conduct alleged against him would be quite out of character. 

2.  The magistrate was fully aware of that and made the proper allowance for that good character, nonetheless he was sure that on this occasion the defendant had been guilty of the offence with which he was charged.  He made the point that even 59 year old gentlemen with such good characters are not immune from temper tantrums.

3.  The magistrate was unable to say, because the evidence did not disclose it, what caused the loss of temper and he accepted the evidence given by two prosecution witnesses that the appellant, outside a restaurant, banged on its glass window and spat at its door.  This caused the first prosecution witness, an employee of the restaurant, to follow him out and ask what was going on, his inquiry being met with abuse, then violence and a fight in which the appellant was the aggressor.

4.  The magistrate accepted the version of events given by that first prosecution witness and he also relied on the second prosecution witness, a customer at the restaurant, who confirmed the story told by the first witness.  It is right to point out that the second witness was not completely independent because he had known the first witness, having worked with him previously for some six years.    The magistrate bore that in mind.

5.  The defendant gave evidence.  Basically he said that he was just fanning himself with a newspaper because it was stuffy and that this likely touched on the restaurant premises’ front and no more than that.  He denied the spitting and he said that he was not the aggressor in the contact that then took place between himself and the first prosecution witness and that he was just defending himself. 

6.  The relation of those brief facts reveals that this was a question for the magistrate to determine who was telling the truth and of course the magistrate has the enormous advantage over me of having seen and heard the witnesses give their evidence. 

7.  Today, the appellant makes three points before me:  He says that the first prosecution witness was not reliable, and that he demonstrated that by saying there was no need to chase after him and he could have been asked right outside the premises what was going on; secondly, he said there were a number of other waiters working at the restaurant and he would not have dared act in the way alleged because they would have hit him; and thirdly, he says that he was just defending himself.

8.  None of those matters raise any doubt in my mind as to the correctness of the conviction or the findings of the magistrate.  There are some grounds of appeal which had been settled by his solicitor.  One prays in aid of his character, and I have dealt with that.  One prays in aid a lack of any motive to act as alleged against him, and again I have dealt with that by relating the way the magistrate approached the matter. 

9.  The other two grounds set out in the grounds of appeal settled by the solicitor really rely on a mixture of some discrepancies that occurred in the evidence and some factual points as to what was likely in the circumstances.  As regards to those factual matters, if there was a finding that PW2 was a witness of truth and not someone who was deliberately putting his head together with the first prosecution witness dishonestly to support him, they disappear.  There is no reason at all on the evidence to think that PW2 would behave in such a way or did behave in such a way, and the finding of the magistrate that he was an honest witness is one that I judge to be solid. 

10.  The discrepancies were dealt with in detail by the magistrate and I agree with his judgment that they were minor and to be expected when honest witnesses relate later in court the events of an incident such as this.

11.  It is in those circumstances that my order is that the appeal be dismissed.  There was a solid statement of findings from an experienced magistrate, Mr Stephen Smout, which demonstrates that he dealt with all the issues at the trial with great care, and he puts his finger on what was at the heart of the case when he says that the evidence of the appellant did not have the ring of truth about it and, in particular, as he says, he did not believe the appellant’s testimony as to PW1’s alleged extreme reaction to the defendant’s newspaper making contact with the glass panel of the restaurant when all the defendant was doing, according to him, was just fanning it in the air to try and create some air because he felt stuffy.