THE QUEEN v. CHONG PING KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1095 OF 1991

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BETWEEN

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J U D G M E N T

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1. This is an appeal from a decision of Mr. D'Almada Remedios when the appellant was charged with taking part in an unlawful fight in a public place. This is a criminal charge contrary to Section 25 of the Public Order Ordinance and like all criminal charges has to be proved according to the appropriate standard of proof. I do not set out all of the facts of this matter. It was an altercation that arose after there had been a dispute on a driving incident. The I appellant said that his car had been followed by this light goods vehicle and that when he got out the driver of the light goods vehicle was holding a weapon in his hand, a pair of pliers or pincers.

2. The Prosecution witness who was on board that goods vehicle accepted in his evidence, in cross-examination, that when the driver did alight he was carrying this weapon, which he later exchanged for a long wheel brace, or tyre socket. The appellant said that this man behaved in an aggressive manner and he only reacted after he had been hit. The Magistrate when he looked at the evidence, said that he did not believe the appellant that this other driver was holding a pair of pincers, and he said "I accepted the evidence of PW1 that he held nothing in his hand". The Magistrate was quite wrong about that. Further he made additional errors later on in his judgment, when he said "I do not believe that D1 held a pair of pincers", and on that basis he made his findings. He did not address himself as to the correct standard of proof and merely said that the appellant was an unreliable witness and when one's evidence conflicted with the other "I accept the other". This, in my judgment, was a conviction that should not have taken place and the appeal for a number of reasons is successful. I should add the Crown having had these matters pointed out by Mr. Mackenzie Ross do not oppose this appeal which is allowed with costs to be taxed if not agreed.