THE QUEEN v. LAM CHUN HUNG

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 698/90

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BETWEEN

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JUDGMNT

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Hon. Sir Derek Cons, Ag. C.J.:

1. LAM Chun-hung (the "Defendant") was convicted in the South Kowloon Magistrates Court, by the magistrate Mr. Morley, of the offence of occasioning actual bodily harm and sentenced to three months' imprisonment.

2. One night in February earlier this year the Defendant had apparently arranged to meet a friend by the New Jade Restaurant in Nathan Road.The evidence before the Magistrate was that at about 1.30 in the morning, his friend arrived there by taxi. Getting out of the taxi he caused minor damage to the door, but on being reprimanded by the taxi driver, seems to have lost his temper. He kicked the door in and he swore at the taxi driver. The Defendant came over to see what was happening and on the encouragement of his friend he attacked the taxi driver. He hit him and then both he and his friend pushed the driver down onto the front seat and carried on hitting him. They continued to do so until the police fortunately arrived. Each of them then fled in different directions. The Defendant was apprehended by a constable in Carnarvon Road, who was the fourth prosecution witness. Two other police officers gave evidence before the magistrate. They are witnesses no. 2 and 3 and had been more concerned with the friend than with the Defendant at the time.

3. The evidence which the Defendant gave below was that he was at the scene but left when the police came. He had not taken part, he said, in the attack. He was identified though as having done so by the taxi driver and the three police officers. The magistrate discounted as worthless the evidence of the taxi driver. He had, the magistrate said, only a fleeting glimpse while being the subject of a violent attack which may have affected his senses.

4. As to the second and third witnesses, the other two police officers, he said this:

        "P.W.2, P^.W.3 and P.W.4 then gave their respective accounts. They described seeing the closing stages of the attack on P.W.1 from their different viewpoints. P.W.2 identified the (Defendant) as one of the attackers. This identification was also made in circumstances far from ideal, but it was supported by P.W.4's evidence. P.W.3 similarly identified the (Defendant) as one of the attackers, and his identification is open to the same criticism, but has the same support from P.W.4's evidence. The identifications of the (Defendant) by P.W.2 and P.W.3 were both made on the basis of a short period of observation of a man who was acting violently, at night, albeit that Nathan Road is adequately lit."

Later he said PW4 was a vital witness so far as the identification of the Defendant went.

5. The Defendant applies today to have the conviction set aside. Mr. Macrea, on his behalf, has filed and argued perfected grounds of appeal. As I understand them they are based on two premises, firstly, that the evidence of all three officers as to identification is the same; and secondly, that the magistrate rejected the evidence of the first two police officers. The argument then follows that as the identification of the other two officers was rejected, any conviction based on the evidence of the fourth prosecution witness must necessarily be unsafe and unsound.

6. With respect, it seems to me that both premises are false. The magistrate did not reject, as I read his judgment, the evidence of the other two police officers, that is to say, he did not reject it as worthless as he did the evidence of the taxi driver, although I am confident that hat their evidence been the only evidence against the Defendant, he would not have thought it sufficient to found a conviction. And then the evidence of the fourth prosecution witness was not the same as that of the other two officers. His evidence was that he had the Defendant under observation from the time of crouching by and hitting someone inside the taxi until he caught him in Carnarvon Road. In his case it was not a question of identification from visual features, as it was in the case of the second and third prosecution witnesses. The only question was whether his evidence was to be accepted. The magistrate found him a careful and accurate witness and he believed him. Thus, I find no merit in the appeal against conviction and it is refused.

7. As to sentence, the Defendant is 30 years old and single. He has a clear record. He works as a captain in a seafood restaurant. He had been hoping to emigrate to Canada, but may have some difficulty in view of this conduct. That however is not relevant to sentence.

8. With regard to sentence, the magistrate said this:

       "The assult, committed in the early hours of the morning, was prolonged and sustained. It was of considerable violence, and only ceased when the police arrived. The (Defendant) struck the first blow, at his co-accused's invitation, without really knowing much about what was happening. He showed that he was willing to act in a thuggish way at his friend's request, whatever the circumstances. I felt that in those circumstances, a prison sentence had to be passed; it has to be known that this sort of conduct is simply not acceptable."

9. I would agree with the remarks passed by the learned magistrate, but at the same time it seems to me that three months, bearing in mind his clear record and his other personal circumstances, is too heavy. I shall therefore allow the appeal against sentence and substitute therefore a sentence of only one month.