R. v. NG SHUK CHI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.240 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of criminal damage on 14th August 1995 and he was bound over in the sum of $1,000 and to pay $500 costs.

2. The Appellant now appealed against conviction.

3. The evidence against the Appellant was this : PW1 parked his vehicle in the Kennedy Road/Garden Road carpark. He saw the Appellant

nearby kicking up rubbish. A coca cola can landed near PW1. He said :

"I saw the Appellant kicking objects again. A stone came up; that stone fell onto windscreen of my vehicle. Fell on the wiper. I went over to have a look at my car. I saw scratches on windscreen."

4. Another witness who was nearby saw the Appellant kicked a stone and it landed on the windscreen of the vehicle of PW1.

5. There was no other evidence of damage to the windscreen. No photographs of the damage alleged to have been caused by the stone were produced.

6. The Appellant's evidence was he was a gardener and he was cutting leaves at the location. Then PW1 alleged that he had damaged his car. He went to have a look at the car and he saw no scratch marks on the windscreen. PW2 told him there were mud dots; otherwise the screen was fine. He was told to pay compensation which he refused. He denied kicking the rock and damaging the car.

7. The magistrate found he kicked the rock and the windscreen was damaged. He said : "Small scratches were apparent" in his statement of finding.

8. Mr Wong for the Appellant submitted that there was no real evidence of damage to the windscreen. The magistrate's finding that the scratches were apparent was not based on evidence. There was also no evidence that the stone landed at the place where the scratches, if any, occurred. In any case, the Appellant had a clear record and the magistrate had not adequately considered this issue in determining the case.

9. Miss Crabtree for the Crown accepted that there was no independent evidence of damage to the screen. The issue of good character was not put before the magistrate but she submitted that it would be dangerous for the magistrate to raise that himself.

10. Based on the evidence of PW1, the magistrate found the Appellant kicked up a stone which landed on the screen causing scratches on the screen. There was no evidence of the scratches alleged to have been caused by the stone. There was no evidence if there were or were not scratches on the screen before the stone landed on it. There was no evidence to support the magistrate's finding that the small scratches were apparent. Proof of damage to the screen was unsatisfactory. The conviction was not safe and satisfactory. The appeal is allowed. The conviction is quashed and the sentence set aside.