THE QUEEN v. NG SIU-YAU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGIST ACY CRIMINAL APPEAL No. 659 OF 1989

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BETWEEN

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JUDGMENT

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1. The appellant pleaded not guilty in the Ma gist rate's Court to a charge of common assault. For the prosecution, two witnesses gave evidence and the appellant also gave evidence. Although two witnesses gave evidence for the prosecution, the central issue as to whether the appellant did assault the complainant lady depended on an assessment of the credibility of the lady and the appellant. The learned magistrate, having seen and heard those two witnesses, came to the conclusion that the lady complainant was telling the truth about the details of the assault and the appellant was not and he convicted the appellant.

2. The appellant now appeals against that conviction. He does not appeal against the sentence which was imprisonment for a month ordered to run consecutively with the activation of a suspended sentence of imprisonment for four months. Before me on the appeal, the appellant has not put forward any grounds which would warrant interference with the conviction.

3. At the trial the appellant was unrepresented and he remains represented today. However, Mr. Pang who appears for the respondent has demonstrated the proper approach which should be adopted by a counsel in these matters. Through his alertness and on his initiative, it has been made known to me that the prosecution witness gave evidence which was quite seriously at variance on some material matters with what she had told the police. These matters were not, of course, illustrated in cross-examination of the complainant at the trial. Had they been it is unlikely that the magistrate would have been able to confidently conclude that the truth was solely on the complainant's side and the result of this, of course, is the learned magistrate may well not have convicted in those circumstances.

4. It seems to me that although there was a trial properly conducted and with which no fault can be levelled at the magistrate's decision to convict, nevertheless from I have been told there would be a blot on our system of our administration of justice if I were to allow such a conviction to stand.

5. Accordingly, I allow the appeal and quash the conviction. It is the sort of case in which I think the interests of justice do not require a re trial so I do not order one. I allow the appeal, quash the conviction, set aside this sentence, set aside the order activating the suspended sentence and order the appellant's immediate discharge.