HKSAR v. YU KAM CHIU

HCMA 549/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 549 OF 2000

(ON APPEAL FROM KTCC 860/2000)

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J U D G M E N T

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1. This Appellant appeals against his conviction in the Magistracy on a charge of Fighting in a Public Place. Of various grounds put forward in the Perfected Grounds of Appeal the chief one was that the Magistrate had failed adequately to assess, interpret and evaluate the evidence, in particular, that he had failed to resolve discrepancies between the two prosecution witnesses, PW1 and PW2.

2. This incident took place in the public area of an estate and the fighting resulted from a minor quarrel over the use of a table.

3. Having considered the Magistrate's Statement of Findings and such of the transcript as was available to me, I am satisfied that the Magistrate did consider the discrepancies in this case; he recognised them and specifically dealt with them in the Statement of Findings.

4. The second ground of appeal was that the Magistrate erred by indicating in his findings that there was a burden on the defence in establishing the defence of self-defence. Having considered all the material relating to self-defence, I am satisfied that the Magistrate was well aware of his responsibilities in assessing this defence and he found specifically that the prosecution had negatived the defence by its evidence.

5. The other ground of appeal was that the Magistrate appeared to accept that foul language was a sufficient reason or excuse for assaulting another person; in other words, that considerations of provocation were brought into play. Having considered the transcript referring to this area, I am satisfied that the Magistrate was using the word "provoked" in the ordinary sense of "being annoyed" and was not stating that this was a case of provocation in the legal sense.

6. I find no evidence, despite the suggestion from Appellant's counsel, that the Magistrate interfered in the cross-examination of witnesses. There was an abrasive discussion between defence counsel and the Magistrate when Appellant was asked whether he was going to give evidence or not. This appeared to be due to the Magistrate's inexperience and, possibly, his misunderstanding of his duty to clarify from a represented defendant whether or not he wished to give evidence. I do not consider this resulted in any injustice to the Appellant, who had been advised by experienced counsel as to his rights and had indicated he was not intending to give evidence.

7. I can see no grounds for interfering with the conviction and I dismiss the appeal.