THE QUEEN v. LAM WAH KUN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1646 OF 1990

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BETWEEN

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JUDGMENT

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1. The two appellants were convicted on a charge of assault occasioning actual bodily harm and were each bound over for 12 months and ordered to pay $1,000 costs. They now appeal against conviction.

2. The 1st appellant was the manager of Wing Cheung Noodles Shop which was owned by his father-in-law 2nd appellant, the son of the owner, was one of the staff.

3. On the evening of the 30th July 1990, they were both on duty, the restaurant being crowded with customers. At about 11 p.m., three young men, PW1, PW2 and another man came to the shop to order beef balls.

4. It was the evidence of PW1 that he placed the order and waited inside the premises whilst his two friends waited outside. He became impatient with the delay and proceeded to tell the 1st appellant who was cooking in the kitchen to hurry up. He also knocked on the glass partition between the customer's area and the kitchen.

5. The 1st appellant initially ignored him but when PW1 persisted with his behaviour, the 1st appellant told him to keep quiet or he would hit him. PW1 responded to the 1st appellant's threat by using foul language and telling the 1st appellant to come and do it. PW1 agreed in cross-examination that he and his friends had been drinking beer earlier that evening. It was PW1's evidence that the 2nd appellant then came at him a knife and the 1st appellant with a chair, and that the 1st appellant proceeded to use the chair to hit him on the head causing an injury with requiring three stitches. He then said that the police arrived and that he was taken to hospital. He also said that his friends had come into the shop only after he had been hit and was about to run. He agreed in cross-examination that he had held a stool or a table which he had thrown to the ground at the time when he was being hit. He also agreed that his friends had hit on the top of tables and stools and that he and one of his friends had pushed the shoulders of the 2nd appellant from the front but only after he had been hit. He denied that either he or his friends had tried to hit the 1st appellant with a stool and he denied that they had left the shop pursued by the appellants and had tried to get into a taxi.

6. PW2 gave evidence of having gone to the shop with PW1 and another friend and of having waited outside the shop while PW1 waited inside for his order. He said he only went into the shop after he heard the noise and that he had seen PW1 sitting on the floor, bleeding from the head. He denied that he had hit the top of tables and stools, he denied that he had pushed the 2nd appellant. He denied that he had tried to punch the 2nd appellant and to hit the 1st appellant with a stool. He claimed that when he had entered the shop; he had seen the 2nd appellant holding a knife, he did not see how PW1 came by the injury to his head.

7. A police officer, PW3, said in evidence that he had seen a crowd around the shop and had stopped to investigate. He said he had not been stopped by the appellants but he did agree that the three men were being chased by the 1st appellant and that it seemed that same they were getting into a taxi although he could not be sure of that. He agreed the appellants had made a complaint to him at the scene about the behaviour of the three men.

8. The 1st appellant gave evidence that PWI had complained about the delay and had knocked on the glass partition. It was his evidence that he had told the 2nd appellant that the beef balls were cold but that the 2nd appellant had replied that the man wanted the order in any event. Having regard to the disturbance being created, he supplied the order and then heard a noise in the restaurant. He went to the customer's area and found the three men complaining vigorously that the beef balls were cold. He saw the 2nd appellant being pushed and he therefore went to telephone 999 for police assistance.

9. In cross-examination, PW2 had agreed that he had seen the 1st appellant make a phone call. While making the call, the 1st appellant said that he saw the 2nd appellant run into the kitchen, chased by PW2. He was trying to punch him. The 1st appellant then had a bowl of beef ball thrown onto his neck and PW2 threw a chair at him. He says he picked up a chair and fended off PW2's attacked. PW2 then threw a chair at the glass partition causing it to crack. Then the three men went out of the shop pursued by the 1st appellant still holding a chair and the 2nd appellant. He says that he attracted the attention of the police officer and had lodged the complaint to the police officer about the men's behaviour. He said that he had pursued them because he had already telephoned 999 and he wanted to identify the men to the police when they arrived. He did not say how PW1 came by the injury.

10. The 2nd appellant gave evidence much to the same of effect. He denied that he had ever held a knife during the incident. The defence relied on therefore was that the incident had been started by the three men and that the appellants had acted in self-defence.

11. The first ground of appeal is that the Magistrate wrongly placed the burden of proof on the appellants, or alternatively, adopted the wrong approach in that he found the prosecution had discharged its burden of proof before considering the evidence of the defence. In his statement of findings, the Magistrate having decided PWl was a reliable witness whose evidence in all material aspects had been corroborated by PW2 and PW3, stated "Under the circumstances, I found the Crown has discharged its burden of proof, I then turn to consider the defence case". It is the defence submission that it comes from the statement of findings that the Magistrate had decided that the prosecution case had been proved beyond a reasonable doubt before he considered the defence case. After dealing with the credibility of the appellants, the Magistrate went onto say : "In the circumstances, I do not find the evidence from the Defence succeeds in raising any reasonable doubt in the Crown's case". He did therefore have in his mind, that the Crown had to prove its case beyond a reasonable doubt. The statement of finding is unhappily worded, in respect to the burden of proof, but I am satisfied that the Magistrate was aware of the burden and the standard of proof which the Crown had to achieve.

12. The other grounds of appeal relate to the failure of the Magistrate to properly consider the evidence and, in particular, the inconsistency in the evidence of the prosecution witnesses. As I have said, in the statement of findings the Magistrate recorded that the evidence of PWI had been corroborated in all material aspects by PW2 and PW3. It needs to be mentioned again that PW1 in cross-examination did agree that he and his friends had hit the top of tables and stools and that the 2nd appellant had been pushed by them. PW2 denied that these events had taken place. Given that this was the basis of the appellants' defence, that the fracas had been started by PW1, PW2 and the other man, banging tables and chairs and pushing the 2nd appellant, it was a clear inconsistency between the two witnesses which needed to be addressed by the Magistrate. This he did not do.

13. It was PW2's evidence that he only went into the shop after he heard a noise and that he then saw PWI sitting on the floor bleeding from the head, that he helped him up, and then the police arrived. He in no way corroborated, in all material respects, the evidence of PWI as to what had happened in the shop.

14. Both PWI and PW2 denied attempting to flee the scene by taxi. The evidence of PW3 was that although he could not be sure, there was a taxi approprimately two feet in front of PW1. He also confirmed that he saw the 1st appellant giving chase. His evidence was more corroboration of the account given by the appellant's as to what had happened at the latter stages of the incident than of the prosecution witnesses.

15. The Magistrate convicted the 2nd appellant on the evidence of PWl and PW2 that the 2nd appellant had been holding a knife. In his statement of findings, he had this to say : "I found in the circumstances of D2's presence, his act of holding a knife and the words of threat that he uttered were such that there could no other inference but that they were acting in concert in the assault of PWl".

16. In cross-examination, both PW1 and PW2 agreed that their written statements to the police officer PW3 made shortly after the incident made no mention of the 2nd appellant holding a knife. When this was drawn to their attention in cross-examination, both claimed to have told PW3 about the knife, it being PW1's evidence that PW3 had asked him to let the matter rest.

17. This was a matter of some significance but the prosecution did not endeavour to obtain from PW3 clarification about this matter. The Magistrate in his statement of findings made no mention of this issue which was an important matter in respect of the case against the 2nd appellant and also in deciding upon the credibility of PW1 and PW2.

18. The Magistrate also made no reference in assessing the credibility of the appellants to the evidence of the 1st appellant that he had, when a fracas started, rung 999, evidence which was to a degree corroborated by PW2, nor to the fact that it was the 1st appellant who immediately lodged the complaint with the police officer about the behaviour of the three men in the shop. There was no evidence from PW1 or PW2 that they had at the time complained to PW3 of an unprovoked assault Upon PW1 by the appellants.

19. The Magistrate in assessing the credibility of the appellants stated in his findings that he wondered how PW1 could have known the beef balls were cold when the order was said to be in a container in a plastic bag. This was not a matter that had been put to the appellants and it was wrong for the Magistrate to speculate about it.

20. There can be no doubt that PW1 sustained an injury in the course of the fracas, but as the issue of self defence had been rasied, the onus was on the prosecution to prove beyond a reasonable doubt that the appellants had not acted in self defence. If he had specifically dealt with the matters to which I have referred, the Magistrate may well have found that the Crown had not achieved this standard of proof.

21. I find myself left with a lurking doubt as to whether justice has been done in this case and I therefore proposed to allow the appeals by the 1st appellant and the 2nd appellant against conviction and to set aside the verdicts.