THE QUEEN v. LAU YUN-KWAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 319 of 1984

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JUDGMENT

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1. This is an appeal against conviction on charges of obstructing a police officer and resisting arrest.

2. The magistrate is required to make a finding on the facts, and that he has not done. Section 114(b) of the Magistrates Ordinance says that "when a notice of appeal has been given to the magistrate's clerk, the magistrate whose conviction order or determination is the subject of the notice of appeal shall prepare a signed statement of his findings on the facts and other grounds of his decision..." There may be cases, indeed perhaps not uncommon, where it might be sufficient for a magistrate to simply say that he accepts a prosecution witness or witnesses and rejects the evidence given for the defence. It is for a magistrate to make findings of fact and those findings of fact are normally not subject to challenge. Here however there were conflicts between the evidence given by the two prosecution witnesses and, in particular, I find some of the evidence given by the second prosecution witness, who was at all times with his colleague, somewhat strange. He says, for instance, when being asked what the defendant said when finally arrested and he replied "I could not hear what he said". As he must have been with the defendant at the time I find that puzzling.

3. I think probably the proper course is for me to remit the case back to the magistrate for proper findings of fact. I am however a little concerned as these are not particularly serious offences and the incident occurred some three months ago. The defendant was represented in the court below by a solicitor. He is represented by counsel before me and I am somewhat reluctant to adopt a course which must inevitably result in further costs. In view of that I will not remit the matter back. The appeal is allowed. The fine, if paid, to be refunded.