R. v. CHAN CHI SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 804 OF 1996

^{______________________}

^{______________________}

^{______________________}

J U D G M E N T

^{______________________}

1. The appellant was convicted by a magistrate after trial on 7^th June 1996.

2. The facts alleged by the prosecution were that on 25^th March 1996 the appellant, together with one Poon Man-sang, attended a dispute in respect of a labour matter. After the court hearing in respect of that dispute, the witness Poon alleged that at the road junction of Nathan Road and Bute Street, Mongkok, the appellant struck him on the left shoulder with his right fist forcefully. The witness said he immediately went to a shop and dialled 999.

3. The appellant raises a number of matters in this appeal. The first one was that the magistrate was biased against him. The reasons he gives for that is that he may have been rude to the magistrate and as a result the magistrate did not deal with him fairly and properly.

4. The second major ground of appeal is that an incomplete transcript was kept by the magistrate in respect of this trial. I will link these two grounds of appeal together. Firstly, the magistrate is not obliged to keep a verbatim note of every word which is said in a trial. He is obliged to keep such note as properly reflects those matters relevant to the hearing and relevant to the issues before him. Full opportunity has been afforded the appellant in this case to challenge the transcript. He has done so in respect of an exchange he had with the magistrate concerning whether or not a witness was present in court and the desirability of an adjournment to call that witness. Whilst that exchange is not noted, it is quite clear from the transcript that the magistrate granted an adjournment to enable the appellant to call that witness.

5. Upon the adjourned hearing, the appellant had changed his mind and did not wish to call the witness. In the circumstances, the lack of a note of the exchange between the appellant and the court over that adjournment are not relevant to the issues which the court had to decide.

6. The balance of the transcript has not been contested. Although the appellant at one point, during one of the part-heard days of this hearing said that he would do so. The challenge never emerged. An inspection of the transcript together with the reasons for his findings given by the magistrate does not on the face of it reveal any bias or prejudice by the magistrate against the appellant. Alleged bias or prejudice against a judicial officer is a serious matter and one which requires positive evidence on the face of the record, or from some other source before it can be sustained. There is nothing here and this ground must fail.

7. The next ground of appeal is that the prosecution witness lied and at the time of the prosecution the appellant was not able, because the magistrate did not permit him, to bring in considerable amount of background concerning the matter before the Labour Tribunal.

8. The matter before the magistrate at this hearing was whether or not at a particular place in Mongkok, with the intent to do so, the appellant struck a blow to PW1. The reasons or motive for it are not matters which need concern the magistrate. His interest is whether the elements of the offence are made out and whether from the evidence that he has heard, he is sure the blow is struck and that was an intentional blow. He was so satisfied.

9. A further ground of appeal is that the magistrate did not understand the appellant. The transcript follows a logical progression, it records questions and answers, the findings addressed the transcript in a proper fashion and there is nothing on the face of the record to indicate the magistrate did not understand.

10. The next ground of appeal is the appellant's concern that the magistrate found that he did not believe the appellant. The magistrate was in a position where he had two witnesses giving evidence. His first concern was to decide whether or not he was sure, having heard both witnesses, that the prosecution witness was telling the truth. He looked to the evidence of the appellant to decide whether or not it cast doubts upon the evidence given by the prosecution witness whom he accepted as "a decent straightforward man" and "I was impressed with Mr Poon and was quite satisfied that he was an honest witness whose evidence I could rely on." On the other hand, he did not accept the evidence of the appellant. He said -

"... the defendant was not an impressive witness. He was voluble and exciteable, volunteering unlikely reasons as to why PW1 had made his evidence up (for example, the suggestion that the Labour Tribunal case had been transferred to the District Court and that therefore PW1's superiors would be unhappy and that therefore PW1 had made up an allegation of assault)."

These are matters which he was entitled to take into account.

11. The appellant goes on in this ground to argue that the findings of the magistrate are illogical in as much as the appellant had said in chief -

"PW1 is trying to frame me because he is scared because the case is transferred to District Court. He knows his boss will be unhappy.

I saw him quarrel with the people.

He was very angry about me."

Quite clearly the magistrate drew the inference from that evidence that the appellant was arguing either with the tribunal officers or with somebody from PW1's company at the tribunal hearing. In cross-examination, the appellant testified that the quarrel had been between PW1 and a Philipina maid who was another claimant at the Tribunal.

12. The learned magistrate clearly drew the inference that he did from the evidence-in-chief because the only relevance that such an argument would have had was if the argument related to the issue then before the Tribunal. An argument with a fellow claimant would not fall into that category. As a result of that, he came to the conclusion that the appellant was making up his evidence as he went along. He found the appellant not to be a reliable witness. He completed his reasons by saying -

"The burden of proving all the elements of the charge beyond all reasonable doubt lay with the Prosecution, the defendant did not have to prove anything. I was satisfied on Mr Poon's evidence that they had done so and convicted the defendant."

That was a proper approach and I cannot say that the magistrate has been in any way derelict in his duty. The appeal against conviction is dismissed.