THE QUEEN v. WONG CHI MAN

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JUDGMENT

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Kempster, JA (giving the judgment of the Court) :

1. On 17 July 1989 in the Tuen Mun Magistracy Wong Chi man, who is 23 years of age, was convicted after trial by Mrs Livesey of common assault, fined $2,000 and ordered to pay $500 by way of costs pursuant to sections 97 and 69 respectively of the Magistrates Ordinance (Cap 227). He appeals against his conviction and, alternatively, his sentence. These appeals come before us by the direction of Penlington JA, sitting as an additional judge of the High Court, made pursuant to section 118 (1) (d) of the Magistrates Ordinance.

2. The particulars of the offence, as recorded on the Certificate of Conviction, are that on 15 January 1989 at the Sheung Tsuen Playground, Shek Kong, Pat Heung, in the New Territories, the appellant assaulted Cory Mead. Common assault is an indictable offence within the meaning of section 2 of the Magistrates Ordinance because it is a "crime or offence for which a magistrate is authorised or empowered or required to commit the accused person to prison for trial before the court".

3. That this is so derives from the terms of several statutory provisions including section 72 of the same ordinance which reads : -

"In every case where a complaint is made to or an information laid before a magistrate alleging the commission of any treason, felony or indictable misdemeanor or other indictable offence over which the magistrate has jurisdiction, then, if the accused is not then in custody, it shall be lawful for the magistrate to issue his warrant to apprehend the accused and to cause him to be brought before a magistrate to answer to the complaint or information and to be further dealt with according to law; …"

4. Turning next to section 40 of the offences against the Persons Ordinance (Cap 212) we find that : -

"Any person who is convicted of a common assault shall be guilty of a misdemeanor triable summarily, and shall be liable to imprisonment for one year."

5. These provisions fall to be construed in the light of section 89 of the Interpretation and General Clauses Ordinance (Cap 1) which reads : -

"Where any provision in any ordinance creates, or results in the creation of an offence, the offence shall be triable summarily only, unless -

 

…….

 

(c)    the offence is declared to be a "misdemeanor triable summarily"- "

-as by section 40 - and then : -

6. Accordingly the offence of which the appellant was convicted was an indictable misdemeanor and not, therefore, requiring complaint or information to be made or laid "within six months from the time when the matter of such complaint or information respectively arose", pursuant to section 26 of the Magistrates Ordinance.

7. There is another obstacle to the first ground of appeal which depends upon the lapse of time since the making of any complaint or the laying of any information. That is the provision, by section 27(4) of the Magistrates Ordinance, that '"amend' includes the substitution of another offence in place of that alleged in the complaint, information or summons'".

8. On the day of hearing the appellant had appeared to answer a charge of assaulting William Taylor, thereby occasioning actual bodily harm, contrary to section 39 of the Offences against the Persons Ordinance but, at the outset, this was amended, within the meaning of section 27 just recited, to the lesser charge of common assault. Later that day, after the close of the prosecution case, the charge was further amended to substitute for the name of the victim, given as 'William Taylor', that of 'Cory Mead'. 17 July 1989 was one day more than six months after 15 January of that year allowing for the fact that "month" means calendar month and that the 15 January itself does not count. Interpretation and General Clauses Ordinance sections 3 and 71(1)(a).

9. In the light of sections 26 and 27(4) of the Magistrates Ordinance we have to look to the time when the unamended process was initiated by complaint or information. This was not later than 11 July 1989 when the appellant was charged on the information or complaint of Detective Senior Inspector Eugene Yue; within the six month period. On that day he pleaded not guilty before Mr de Souza.

10. Mr Lok, who represented the appellant, wisely conceded in the course of argument that the first ground of appeal could not be sustained. We therefore pass to the second ground by which it is contended that the conviction was unsafe and unsatisfactory.

11. As soon as she was required so to do the magistrate prepared a Statement of Findings pursuant to section 114(b) of the Magistrates Ordinance. In that document she described the evidence of the prosecution witness Taylor to the effect that at about 7.30 p.m. on the day in question, together with a number of companions, he was present in the playground and was approached by three young men who were holding iron bars. The area was illuminated by floodlighting from the adjacent football pitch. When a blow was aimed at one of his companions they all sought to flee and it was at that stage that he claimed to have recognised the appellant among a large number of other potential assailants who by then were blocking all avenues of escape. He said that he recognised the appellant because he had been chased by him before and so was able to identify him at a parade held on 6 June by reference to his face and size. Since Taylor claimed to have seen and heard the appellant pursuing Cory Mead holding an upraised iron bar with both hands and shouting obscenities the magistrate was entitled, if she accepted that evidence, to convict the appellant of assault. No question of battery arose. This was because Cory Meal must have apprehended immediate and unlawful violence, Fagan v Metropolitan Police Commissioner [1969]1 QB 439 at p 444.

12. Today Mr Cross, for the Crown, has brought to our attention the facts that in his witness statement Taylor had claimed to be able to identify only one of the assailants, who was wearing a yellow jacket, and that on an earlier occasion he had identified a youth other than the appellant. These matters, rather strangely having regard to the successive amendments of the charge, were not canvassed before the magistrate. Neither we nor counsel are aware whether or not Taylor's statement was made available to the barrister then appearing for the appellant.

13. We are satisfied that in the light of this information and of the absence of relevant cross-examination the appellant's conviction, depending as it did on identification, must be regarded as unsafe and unsatisfactory.

14. We allow the appeal, quash the conviction, set aside the sentence and, pursuant to sections 118 (1) (d) and 119(1)(d) of the Magistrates Ordinance, direct that the case be heard de novo before a different magistrate. Whether the Crown, in the circumstances, elects to proceed will be a matter for the prosecuting authorities.