HKSAR v. NG CHUEN KAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 978/97

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of common assault and sentenced to a fine. He appeals against his conviction. The particulars of the charge are:-

"NG Chuen-kai, you are charged that on the 5th day of December 1996, on the pavement outside Kai Tsui House, Siu Sai Wan Road, in Hong Kong, you assaulted Chan Kwok-shu."

2. The complainant, who was PW1, was a notorious and persistent illegal hawker with about ten previous convictions for the same offence of illegal hawking. In respect of the present incident, he was charged and pleaded guilty to hawking without licence and obstructing the roadway. PW2 is his wife. They were engaged in illegal hawking when a team of officers of the Urban Services Department arrived and arrested them. The appellant was a member of that team.

3. What happened at the time of the arrest was set out by the magistrate in his reasons at p. 106 of the transcript:-

" At this time Chan was placed under arrest and whilst he was under arrest the whole thing turned quite nasty as Chan wanted to get money out of one of his handcarts to provide for bail. His wife also got into an argument with a female Urban Services officer over the seizure of buckets.

There is no doubt that while under arrest Chan had to be restrained and to this end he was pressed up against the iron railing which separates the road from the footpath by a number of USD officers. The prosecution alleges that while being so pressed he was hit on the head two or three times by the defendant with a walkie-talkie radio."

Apart from the complainant and his wife, several bystanders also gave evidence that they saw the appellant hitting the complainant with the walkie-talkie.

4. The appellant went into the witness box and called two witnesses. He denies hitting the complainant with the walkie-talkie. He says that he himself was hit when the complainant threw a punch at one of his colleagues and when he missed, his backhand swing struck the appellant around the mouth area. Mr. Ng Chung-kwong, the officer in charge of the operation, gave similar evidence in support of the appellant's case. Another witness, Mr. Leung Kwok-keung, an assistant hawker control officer, was unable to see the incident as his glasses were smeared in the course of the arrest.

5. The magistrate accepted the evidence of the prosecution witnesses and disbelieved the appellant and his witnesses. He found the charge proved.

6. Mr. King, who appears for the appellant, argues a number of grounds of appeal. I need only refer to two of them. Ground 7 complains that:-

"The Learned Magistrate failed to direct himself in relation to the Defendant's good character and 30 years service with the Urban Services Department. A direction both as to propensity and credibility was essential upon the facts of this case."

The law on this topic is well settled. It was held by the Court of Appeal in R. v. Fok Tin-yau Criminal Appeal No. 305 of 1994 that there was no rule that, in cases where the accused's credibility was in issue, a judge in the District Court had to set out the way in which the accused's good character had been considered. In the absence of some contrary indication, it would be assumed that the judge had properly assessed the character evidence. The Court of Appeal, however, agreed that whether such a direction has to be given depends entirely upon the circumstances of each case and cited with approval the judgment of Mortimer, J., as he then was, in R. v. Chan Wu-nam Criminal Appeal No. 274 of 1992 in which he said:-

"But in this particular case, having regard to the vital importance of credibility to the defence and the reliance placed upon it and especially having regard to the point made in the defence that the applicant may have been acting as an innocent dupe throughout, it was incumbent upon the District Judge to carefully evaluate and in these circumstances as to set out the effect which the applicant's good character and age had upon his mind."

The Court of Appeal also considered the judgment in R. v. Wong Chi-wei [1994] 1 HKCLR 94. Without in any way departing from these authorities, it would be better in this particular case if the magistrate had made some reference to the appellant's good character in his reasons in view of the vital importance of the issue of credibility upon which guilt or innocence so much depends.

7. The only other matter I would briefly mention is Ground 5 which reads:-

"The Learned Magistrate failed to have sufficient regard to the absence of any injuries on PW1."

I was told that the walkie-talkie was a bulky and heavy object weighing about one pound. If the complainant was hit two to three times by the appellant with such an object with moderate or indeed any force on the head or the forehead, one would expect some injuries such as abrasions, bruises, swollenness or marks. The absence of any evidence of injuries or any logical explanation is, in my view, a matter of concern.

8. In all the circumstances of the case. The conviction cannot be regarded as safe and satisfactory. This is sufficient to dispose of the appeal without dwelling on the other grounds. Accordingly, I allow the appeal, quash the conviction and set aside the sentence. The fine and costs, if paid, will be refunded.