HKSAR v. CHEUNG KAM FUK

HCMA302/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.302 OF 2000

(ON APPEAL FROM TMCC 2582/99)

---------------

-------------------------

J U D G M E N T

-------------------------

1. The appellant was convicted on 13 March 2000 of an offence, contrary of section 19 of the Offences Against the Person Ordinance of unlawfully and maliciously inflicting grievous bodily harm upon one Yu Chi Fai. On 27 March 2000, he was sentenced to four months' imprisonment.

2. The prosecution arose out of an incident that took place on 17 July 1999 at a premises in Yuen Long. At that date, the appellant and his wife were separated. At about 12 o'clock that morning, the appellant went to the premises and knocked on the door, his wife opened the door, and it was the evidence of the appellant that he saw a male (PW1, Yu Chi Fai) inside, not wearing upper garment, who had tattoos and who held a can of beer. An altercation took place between the appellant and PW1, which resulted in a kick by the appellant to the jaw of PW1, resulting in serious injuries. It was the evidence of the wife who gave evidence for the appellant that PW1, was at the time her boyfriend. It was the evidence for the prosecution that upon entry and without further preliminaries, the appellant launched an attack upon PW1 and kicked him in the jaw causing the injuries.

3. The second witness for the prosecution was a police sergeant who arrived and who said that he questioned the appellant. Having cautioned him, the appellant said that on a moment of impulse, he kicked and injured that man. He went on to say that he was wrong and asked for a chance. No issue was taken as to that statement either, as to its accuracy or as to its voluntariness. The appellant in evidence testified that after entering the premises, PW1 walked over to him and, after several verbal exchanges, PW1 pushed the appellant and the struggle took place between them. During the course of struggle, PW1 fell on the floor and the appellant kicked him, not realizing, he said, that he was kicking the face. He raised unequivocally a defence of self-defence.

4. The appellant raises two matters on appeal. Firstly, he argues that the magistrate erred in failing to evaluate or sufficiently evaluate the evidence, and in particular the evidence of the appellant and his witness and, secondly, that she erred in that she failed to apply the proper test in respect of the burden of proof with regard to the issue of self-defence. A third and general ground of appeal is that the conviction is unsafe and unsatisfactory.

5. To deal with the second ground first, the magistrate in her Statement of Findings said this :

"3. I carefully considered the evidence of the Defendant. If there had been struggle between PW1 and the Defendant in the way as described by the Defendant then PW1 would at least suffer injuries in other parts of his body apart from his face and neck as described under PW1's Medical Report [Exhibit P2]. I did not rule the Defendant to be a credible and reliable witness. I reject his evidence.

4. I also carefully considered the evidence of the Defence Witness. Nevertheless, I did not find her as a credible witness. I rejected her evidence.

5. I carefully considered the evidence, and there were nothing in the evidence which could cause me to conclude the Defendant acted for self-defence by kicking the left jaw of PW1 once.

6. In reaching my verdict, I bore in mind the burden and standard of proof and that the burden of proof never shift. The burden throughout was on the prosecution."

6. It is a matter of concern that in paragraph 5, the magistrate appeared to have evaluated the evidence upon the basis that it was for the defendant to show self-defence, whereas the proper test to be applied was to evaluate the evidence and determine whether upon that evidence the prosecution had proved that the appellant did not act in self-defence. Miss Yang argues for the respondent that the reasons should be read in overall terms, the weight of the evidence and the magistrate's statement that she bore in mind that the standard and burden of proof never shift, and that the words in paragraph 5 should be read as meaning that the magistrate found that the issue of self-defence had been negated by the prosecution. Unfortunately, that is not what paragraph 5 says and I must have concerned to as whether the magistrate adopted the proper test in determining whether the issue of self-defence had been negated by the evidence of the prosecution.

7. In respect of the first ground, the magistrate said this in her evaluation of the evidence :

"1. I carefully considered the evidence of PW1. When I considered the evidence given by PW1, I bore in mind he had previous conviction records which related to his credibility and whether he was a person who tended to be violent. I was satisfied so I was sure that PW1 was witness of truth. I accepted his evidence. The injury suffered by PW1 as described in his Medical Report [Exhibit 2] corroborated his evidence, i.e. how his left side of jaw was kicked once by the Defendant.

2. I also carefully considered the evidence given by PW2. I was satisfied so I was sure that PW2 was also a witness of truth. I also accepted his evidence."

8. I have already quoted the magistrate's consideration of the evidence of the appellant and his wife, the witness for the defence. I accept that in normal cases, often little evaluation is necessary by a magistrate of the evidence of witnesses, and indeed in many cases, there is little that the magistrate can do to set out the reasons why a particular witness is believed because it is the magistrate's impression having heard the evidence.

9. In this case, however, there were varying and competing interests between various witnesses in this matter. For example, the wife of the appellant, having admitted that the victim was her boyfriend, had a particular interest at the time the incident took place. By the time the trial took place, she had reunited with her husband and her interest had changed. The victim, having been found in premises late at night drinking with the wife of the appellant, may well have an interest in confronting the appellant who had a similar interest in the same circumstances.

10. This case was one that cried out for some setting out of the reasons why the witnesses for the defence, both the appellant and his wife, were not believed. As Mr Pickavant points out in his address, there were factors such as the fact the appellant remained at the scene and caused the police to be called to come to the scene. It was on his instruction that they were called. The appellant guided the police to the scene and co-operated throughout. That a further statement or opportunity was not given to the appellant to give his side of the events. In fact, the sergeant in his evidence said that the version that he accepted at the time was that given by the wife.

11. It is desirable that an analysis of the evidence be given in these circumstances where the evidence of the appellant and the defence witness was rejected. I do not intend that this be a prescription for Statement of Findings in all cases. It is only in a limited number of cases where special circumstances such as this prevail, where a further evaluation is desirable.

12. Given what I have said both about the Statement of Findings concerning the test applied to the issue of a self-defence and the desirability of an evaluation of the evidence in the circumstances of this particular case, I am not satisfied that the conviction can stand. This appeal is allowed and the sentence is set aside.

13. I am told by Mr Pickavant that the appellant is anxious for a retrial in this matter should I allow the appeal. It is not, of course, for an appellant to pick and choose what order a court shall make, however, in all the circumstances given the severity of the injury to the victim, a retrial in this case is appropriate and a retrial is ordered.