LEUNG CHI-WING v. THE QUEEN

Criminal law - fighting in a public place - whether one of four defendants acting only in self-defence - short statement of findings omitting reference to self-defence - whether conviction unsafe and unsatisfactory - Held: 1. Ideally statement of findings should have referred to self-defence but each statement of findings must be considered in relation to the evidence adduced; 2. The other conclusions recorded in the Statement of Findings together with the evidence adduced clearly established that the appellant's participation was not limited to acts in self-defence; 3. Appeal dismissed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 196 of 1985

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BETWEEN

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JUDGMENT

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1. The appellant was convicted with 3 other defendants of fighting in a public place contrary to Section 25 of the Public Order Ordinance, Cap.245 and fired $1000. From that conviction he now appeals. The evidence established that on 14th October 1984 at the Cooked Food Stall Market at Sui Man Road, Chaiwan a fight developed involving all 4 defendants.

2. The first three defendants were brothers and operate the Choi Kee Cooked Food Stall. The appellant, who was the 4th Defendant in the Court below, works at the nearby Chak Kee Cooked Food Stall operated by his father. A dispute developed as a result of customers of Choi Kee occupying seats owned by Chak Kee.

3. The prosecution called Madam Cheng Yiu-wah, who at the time was seated at another cooked food stall. She is also at times a customer of Choi Kee and Chak Kee and knows their staff including all 4 defendants. The other civilian witness called by the prosecution was Mr. Chow Yee-ling who at the time was assisting his mother who operates the Wai Pik Cooked Food Stall which was also in the same locality.

4. The learned Magistrate accepted the evidence of those two independent witnesses as to what occurred finding that all 4 defendants fought with fists; that the other defendants poured hot water over the appellant; that at a later stage of the fight the appellant, after he was scolded with hot water, left the scene but returned shortly thereafter armed with a hammer which he wielded.

5. The learned Magistrate accepted that the appellant was badly scolded by the hot water. Two doctors were called who gave expert evidence as to the seriousness and extent of the appellant's injuries. The appellant remained in hospital for more than 2 weeks. The other defendants suffered minor injuries and were discharged from hospital on the same day as the offence after treatment.

6. The defendants all gave evidence. The first three defendants blamed the appellant. The appellant blamed the first three defendants. The evidence of the two independent civilian witnesses was clearly important. Madam Cheng stated that the fight had already commenced when she gave it her attention and that the first thing she saw was the appellant being assaulted. She also stated that the appellant hit some of the other defendants with his fists. Further, she later saw the appellant run to his stall and return with a hammer which she stated he used. Mr. Chow stated that the appellant started the oral dispute but when force was first used he merely saw the appellant and another of the defendants fighting. He likewise saw the appellant go to his stall and return to the scene with a hammer. The evidence as to whether he used the hammer to hit anyone was conflicting but under cross-examination Mr. Chow stated that although it was wielded by the appellant he did not see it strike anyone.

7. From the evidence of these two witnesses it was clear that the appellant first approached the defendants to complain about the use of his stall's seats after which a fight commenced. It is equally clear that the appellant suffered by far the more serious injuries and that the 1st and 2nd defendants played a leading role in injuring him.

8. The appeal was principally based on the ground that the appellant was attacked by the other defendants and that any force he used was in self-defence which was reasonable in the circumstances. On self-defence generally I was referred to Chisam (1963) 47 Cr. App. R. 130, Vaughan v. McKenzie (1968) 1 Q.E. 557, R. v. Julien (1969) 2 .Ail E. R. 856, Palmer v. R. (1971) 55 Cr. App. R. 223 and R. v. McInnes (1971) 3 All E.R.295. which I have considered. The issue of self-defence, Counsel for the appellant points out, was raised at the trial both in the appellant's evidence and in his Counsel's submissions. Counsel for the appellant criticised the magistrate's statement of findings for its one page brevity and in particular for the magistrates failure to record whether he considered the issue of self-defence before reaching his finding of guilt.

9. The one page statement of findings does demonstrate what at times would be an enviable economy of expression. However, it is true that there is no express finding in respect of self-defence. I was referred to Abdul Rahman Bux v. The Queen Cr. App. No.756/81 and Chu Fat Sun v. The Queen Cr. App. No.40/80 and in particular the statement of Addison J. in the latter judgment:-

"Again, where the law requires the magistrate should have regard to certain matters, such as corroboration or as to the dangers in accepting identification evidence, such should also be adverted to lest it be thought they have been overlooked."

10. However, an important thrust of that judgment is that a statement of findings should not amount to a long recitation of the evidence adduced at the trial. In relation to the issue of self-defence it is argued that the learned magistrate should have expressly referred to it in his Statement of Findings and as he has not it should be inferred that he failed to consider it or failed to give it the weight which the evidence demanded should have been given to that issue.

11. With respect, I agree with Addison J. that the matters he mentions should, when relevant, be expressly included in a Statement of Findings. Ideally, it was desirable for the learned magistrate in this case to have referred to self-defence. In the absence of any express reference what is the position? The consequences of any omission from a Statement of Findings, of references to matters such as self-defence, always depends on the facts of each case. In this appeal if the appellant had not left the scene even if only for a short period, to obtain a hammer, the position would have been much more difficult. For in that event the evidence may well have been sufficiently consistent with self-defence that if that defence were rejected, the learned magistrate should have given his express reasons for its rejection.

12. In this appeal the facts are quite different. The action of the appellant during the fight of leaving the scene, obtaining a hammer and then returning, is powerful evidence that the appellant at that stage was not acting in self-defence but was voluntarily participating in the fight. This factor was clearly a major issue considered by the learned magistrate for after recognising that the appellant suffered the more serious injuries he goes on to find:

"... but this does not detract from the evidence that he took an active part in the altercation and was able at one stage to return to his stall and arm himself with the hammer."

13. I am satisfied that the evidence as adduced at the trial and found by the learned Magistrate, clearly negates the possibility that the appellant's participation was only in self-defence. I reject the appellant's submission that in all the circumstances of the case the conviction was unsafe or unsatisfactory. The appeal is accordingly dismissed.