R. v. CHAN TAK SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 763 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction. The appellant was convicted by a magistrate of the offence of unlawfully fighting in a public place. He is said to have taken part in a fight with one Tang Lai Kau on 17th January 1996 outside the Sun Chui Commercial Complex in Shatin. Tang pleaded guilty to the offence before the appellant's trial.

2. The prosecution case was supported by the evidence of Man Tung Shing. He said that on the afternoon of 17th January 1996, he and others, obviously all known to each other, were gathered by the park at Sun Chui Estate in Shatin. He knew Tang, and he saw Tang accuse the appellant of disturbing his attempt to fill in a betting slip. They abused each other with foul language, and the appellant then hit Tang who hit back. The appellant fell, got up and rushed to Tang and the two of them engaged then in a fight, exchanging blows. This witness intervened, telling them to stop as they were all Kai Fongs. The police appeared and the two antagonists made counter-allegations.

3. The next witness for the prosecution was Tang. He did not, it seems from the notes of evidence, seek to minimise his role in the affair. He said that he rushed at the appellant and told him to shut up. An argument developed and the two fell into a fight. He hit the appellant, and the appellant hit him.

4. An important piece of evidence came from one of the police officers who arrived at the scene. He said that he questioned the appellant who told him that Tang had hit him and that he had fallen. He was asked if he had hit Tang and he said that he had.

5. The appellant was represented by a duty lawyer. He gave evidence. His account was entirely different from that of the first two prosecution witnesses. According to his account, it all started when Mr Man kicked someone called Siu, and he, the appellant, remonstrated with Man. Tang then intervened and hit the appellant who fell. The appellant stood up and abused Tang with foul language, but Tang hit him again and in using his hand to ward off Tang's blows, the appellant says that his hand hit Tang's face. He says that he had never told the police that he had hit Tang.

6. The man Siu then gave evidence for the appellant but did not say what the appellant expected him to say. He said that no one had hit him, Siu. He said nothing which assisted the appellant's case.

7. The appellant has presented a letter to me in support of his appeal, and has addressed me this morning. He used to be a policeman and was a person with a clear record. He says that Man and Tang concocted the case against him and that Siu feared telling the truth in court.

8. The magistrate has given careful reasons for verdict. The fact is that he was very impressed with the evidence of Mr Man, and he disbelieved the appellant. He took into account the fact that the appellant had been a police officer with a clear record.

9. It is not for me to assess the credibility of the witnesses. The magistrate has done that and come to the conclusion to which he is entitled to come. He has also made no error as to law.

10. The appellant tells me this morning that the witness Tang had a previous conviction or convictions. That is a matter which did not emerge at the trial below, but the appellant was represented and was in possession of that fact which is a fact which he could have conveyed to the barrister representing him.

11. In the circumstances of this case, there is no justification on appeal for upsetting the conviction and the appeal against conviction is dismissed.

12. There is also an appeal against sentence. The magistrate fined the appellant $2,000 and ordered him to pay costs in the sum of $2,000 and also bound him over in the sum of $4,000 to be of good behaviour.

13. The appellant is aged 49 with no previous convictions. He complains that the defendant Tang was fined only $1,000, having pleaded guilty and is aggrieved by the disparity in sentence. It is trite law that where sentences are imposed by different tribunals for the same offence, a disparity does not become objectionable, so long as the penalty imposed by the tribunal whose decision is under appeal is an appropriate penalty. I cannot say in the circumstances of this case that the fine imposed is manifestly excessive or wrong in principle although it seems to me to be slightly on the high side. Nor am I in a position to say that there was anything wrong in principle with the award of costs that the magistrate made or that that award was unreasonable. To that extent, the appeal against sentence is dismissed.

14. However, as far as the bind over order is concerned, Mr Veltro for the Crown very properly puts forward to me the contention that the magistrate had no jurisdiction to do as he did. This was not a case of a bind over order where the prosecution case does not go forward, and the appellant is discharged. The magistrate had jurisdiction to make a bind over order after trial, but not without the appellant's consent, and not in conjunction with a fine. So that part of the magistrate's order is set aside.

15. The appellant tells me that he is now unemployed. He was employed as a taxi-driver at the time that he was sentenced, but his licence has been suspended for six months from May. That means that he will not be in a position to obtain employment until some time in November of this year. Accordingly, I shall order that the fine and the costs be paid within six months from today.