THE QUEEN v. YEUNG WAI KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 831 OF 1995

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JUDGMENT

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1. The appellant was convicted on 17th May 1995 of two charges of wounding and one charge of assaulting a police officer and a 4th charge of claiming to be a member of a triad society.

2. The case arose out of a fracas outside a premises in Taipo where the victims, three police constables, had been drinking for some considerable period of time before they left the premises. Outside the premises, they were attacked by some young men who were interfering with a motor vehicle and were then approached by two men, one of whom was alleged to be the appellant and a fight took place in which the police constables were injured.

3. The learned magistrate set out in his findings very clearly the evidence for the prosecution and the evidence for the defence. The appellant did not give evidence on his own behalf but called one witness who, on the evidence, was known to the defendant was not in his company that night. There was no cross-examination indicating which she had a particular connection with the defendant. Her evidence was in direct contradiction with that of the Crown. The learned magistrate having set out the evidence for the prosecution and the defence and having reminded himself of such matters as the direction in Turnbull and various limitations in respect of the evidence for the prosecution said:-

"... Having seen and heard all the witnesses. I was satisfied that all the prosecution witnesses were honest witnesses."

This is the sole evaluation of the evidence for the defence and by implication, the magistrate did not believe the defence witness.

4. I have been referred to a number of authorities on this matter and in particular to that of the R. v. Lee Tat Choi, Criminal Appeal No. 304 of 1988. That was a case similar to this in as much as the evidence did not just involve evidence for the Crown and evidence for a defendant but was a situation where an independent third party gave evidence for the defence which was in conflict to the evidence of the Crown Bewley J. said:-

"Madam Wong's evidence was unsatisfactory in several respects and I agree with Miss Chan that she should have heard the shouting, if indeed there was any shouting. But the important thing is that, on the face of it, she was an independent witness and she saw the cigarettes. There is thus a real and crucial conflict between her evidence and that of the officers. That, in my judgment, is a matter that should have been evaluated by the magistrate, as indicated by the authorities cited. It is very different from the usual case, in which the conflicting evidence is provided by the arresting officers and the defendant. In that situation there is not much more that a magistrate can say other than that he believes the police and disbelieves the defendant."

5. This is also a matter of an independent witness whose evidence should have been evaluated by the magistrate who should have set out upon what basis he believed the evidence for the prosecution and disbelieved her evidence. Accordingly, the appeal against conviction is allowed and the sentences set aside.

6. Mr Cheung for the Respondent applies for a retrial in this matter. This was a serious assault in circumstances where perhaps it is fortunate that grievous injuries were not sustained. It is, in my view, in the public interest that the matter be properly dealt with and I grant an order for retrial.