R. v. CHAN KWAI TIM and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.110 OF 1996

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J U D G M E N T

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1. Both Appellants were convicted of common assaults, blackmail and resisting arrest. In addition, the 1st Appellant was convicted of claiming to be a member of a triad society. They were each sentenced to a total of one month imprisonment. They appealed against their convictions.

2. The prosecution evidence was that there was a quarrel between the two prosecution witnesses PW1 and PW2 and a Mr Wong. One of the witnesses PW1 paged the 2nd Appellant. The two Appellants together with other persons then arrived at the scene of the quarrel after the police had arrived. The 1st Appellant then demanded the 2nd witness PW2 to pay $2,000 as travelling expenses for going there which the witness agreed to pay. When the money was not paid, the two Appellants arranged to meet the witnesses in a villa. When the two witnesses duly arrived one after the other, there was an argument over the demand for money during which the witness was assaulted by the 2nd Appellant. When the matter was not resolved, the 1st Appellant claimed he was a member of "Shui Fong", a triad society. A demand of $3,000 as compensation was made by the Appellants which PW2 eventually agreed to pay.

3. The defence case was that the $2,000 was money which the witness had borrowed from the 2nd Appellant. There was a dispute over a mahjong game during which there was a struggle. The 1st Appellant denied having claimed to be a member of Shui Fong. The 1st Appellant claimed that she had been assaulted by the police.

4. The first ground of appeal was that the prosecution failed to disclose at the trial to the defence the previous convictions of the two prosecution witnesses. The prosecution witnesses could not be cross-examined on their previous convictions and this deprived the magistrate of the opportunity of assessing the credibility of the two witnesses in the light of their bad character. Further, the medical reports on the injuries suffered by the two Appellants had not been produced. The conviction was unsafe and unsatisfactory.

5. Mr Veltro for the Crown, very fairly, conceded that the two prosecution witnesses have a number of previous criminal convictions and the medical reports in question were never put before the magistrate. He agreed this was an irregularity and the Crown was not in a position to oppose the appeal.

6. The magistrate in his findings stated in effect that he believed the evidence of the PW1 and PW2 and rejected the evidence of the defence. The decision was purely based on the credibility of the witnesses. Having regard to the 1st Appellant's defence that she was assaulted by the police, the medical report was relevant to the charge of resisting arrest. Had the magistrate been aware of such evidence, he might or might not have reached the same conclusion as he did. In the circumstances, the convictions of both Appellants are unsafe and unsatisfactory. The Appellants have already served their sentence and in view of this, there should be no retrial and the Crown has not sought one either.

7. The appeal against conviction by each Appellant is allowed and the convictions quashed.