THE QUEEN v. CHEUNG CHI WAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 160 OF 1991

____________

BETWEEN

_____________

___________

JUDGMENT

___________

1. The Appellant was the second of three defendants charged with Assault Occasioning Actual Bodily Harm. They all pleaded not guilty and were tried together.

2. The alleged victim of the assault said in evidence that at the time he was working as a security officer with Wing On Security Co at the Houston Centre in Tsim Sha Tsui East. At about 2:30 p.m. on the day in question he was asked by his supervisor to report to the manager (D1) at his office in East Ocean Centre. He went. There was an argument which led to ill telling him that he was dismissed and ordering him to return his uniform and other Company property. As he was leaving D1's office the appellant pushed and grabbed him from behind and put him in an arm lock. Others joined in assaulting him including D3. During the attack he was hit on his chest and pressed to the ground and a telephone and an ashtray were knocked from a desk to the floor. Eventually the police came and he was later medically examined.

3. The medical evidence revealed that he had tenderness over his chest, bruises and redness over his right hand, no injuries to his neck or back but an X-ray disclosed that he had two fractured ribs.

4. The Appellant anti the other two defendants gave evidence. The Appellant's evidence was that he heard the argument between the victim and D1, that during it the victim became irrational, behaved abnormally and threatened DI by saying : "So be it. I will not work, any more. When you finish work I will ambush you and chop you to death". He said that he then warned the victim "not to be impolite" to DI otherwise he (the Appellant) would call the police. Dl then asked the victim to return his uniform and other company property and told him he was dismissed. The victim then clenched his fists and ran towards D1. The Appellant tried to prevent him reaching Dl whereupon a struggle developed between him and the victim. With the assistance of D3 who came to help they managed to subdue him and Dl gave instructions for the police to be caller.

5. The learned magistrate found Dl and D3 not guilty. With regard to the Appellant he said :

 

"… although [the Appellant] may have acted merely to prevent the victim approaching D1 ... I find that [the Appellant] had acted in a manner grossly exceeding whatever force that may be reasonable to stop the victim from getting to D1. I also find that [the Appellant] was the person who was responsible in causing the injuries of the victim. I thus find [the Appellant] guilty as charged ...."

6. In his appeal against conviction the appellant relies on three main grounds. The first relates to the cross-examination of the Appellant and D3. Each had made a "witness statement" some weeks after the incident and many weeks before being charged. The complaints are that that they had not been proved to be voluntary statements, the Defence had not been made aware of them before their production at the trial and the learned magistrate made use of them in assessing the credibility of the Appellant and D3.

7. Mr Leung, for the Respondent conceded that the statements should have been disclosed to the Defence but he referred to the fact that the cross-examination was limited to a minor inconsistency in each case for which each witness gave an explanation. No objection was taken to the cross-examination at the time and the record indicates that the learned magistrate appears to have accepted the explanations and dismissed the matter from his mind. Irregular as the conduct of the prosecutor was; I accept Mr Leung's submission that it had no effect on the outcome of the trial and that this case is distinguishable from Tsang Po Man (Cr. App. 948/79).

8. The second main ground contends that the victim's account was inherently unbelievable whilst the account of the Defence withesses had credibility. There should therefore so it was submitted be a lurking doubt about the correctness of the conviction arising from the learned magistrate's apparent neglect to consider properly the whole of the evidence.

9. There would be substance in this contention had the learners magistrate reaches his verdict through total acceptance of the victim's evidence. But he clearly did not do that. He accepted neither the victim nor the Appellant as witnesses telling the whole truth. He accepted the evidence where they agreed rich each other, that is, the common ground that them was an application of force by the Appellant to the victim. He was also prepared to accept that the Appellant "may have acted merely to prevent the victims approaching Dl". But the medical evidence and the Appellant's observable superior strength over the victim, persuaded him that toe Appellant had exceeded the bounds of lawful force. I no not see now I can interfere with that conclusion.

10. The third ground is the "roll-up" ground that in all the circumstances the conviction is unsafe and unsatisfactory. As the circumstances relied on are those in the first and second grounds, it follows that this ground has no substance.

11. The Appeal must therefore be dismissed.