THE QUEEN v. FONG KUN NANG

IN THE SUPREME COURT OF HONG HONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 430 of 1989

--------------

BETWEEN

------------------

JUDGMENT

-------------------

1. The Appellant was convicted in the Magistrates Court after trial on a charge alleging assault occasioning actual bodily harm. The charge arose out of an incident in a rural area in the New Territories one afternoon early this year.

2. There were only two witnesses. The person who was alleged to have been injured in the course of the assault and the Appellant The allegation by the injured person was that he was working in his field when the Appellant appeared and began to throw stones at him.

3. It appears that there had been a dispute between the parties for quite sometime prior to this and as a result of the stone throwing, the prosecution witness was injured on his forehead to the extent of bleed.

4. The Appellant's case was that the prosecution witness did suffer an injury, that he did see stones in the vicinity, that he picked up one stone but that he had not assaulted the prosecution witness. The Magistrate accepted the evidence of the prosecution witness and in his Statement of Findings mentions that one factor which influenced him was that the appellant made an allegation in his evidence which had not been put to the prosecution witness in crossexamination.

5. The Appellant was unrepresentated at the trial. The learned Magistrate in accepting the evidence of the prosecution witness convicted the Appellant, bound him over in the sum of $1,000 to be a good behaviour for one year, and ordered him to pay costs of $500.

6. Mr. Wu who represents the Appellant today relies on two main grounds of appeal. The first is that the Appellant being unrepresented should have been given assistance in putting forward his defence before the Court, assistance which stopped short of entering into the arena but which was sufficient to enable the unrepresentated Appellant to know what the procedure was and what he was expected to do in order to put his case before the Court.

7. Mr. Wu submitted that, since the Magistrate did not explain the purpose of cross-examination, it smacked of unfairness to rule against the Appellant's credibility on the basis of a failure to comply with the procedure which an advocate would have followed had the Appellant been represented.

8. The second ground of appeal is that the Magistrate did not give the Appellant the opportunity to address the Court at the conclusion of the evidence. The record does not indicate any such opportunity was given.

9. In support of the second ground Mr. Wu relies on a number authorities which I need not mention because Mr. Pang, who appeared for the Respondent, concedes, on the basis of the decisions in The Queen v. Ng Yuk Ying [1987] HKLR 1236) and The Queen v. Siu Yeung Lung, (Magistracy Appeal 444 of 1983) that a conviction will be quashed where there has been a failure to allow a Defendent to address the Court.

10. Mr. Pang did not concede the point about the failure of the Magistrate to explain the purpose of cross-examination. On the authorities which have just mentioned, it seems to me that there is no other course for me to follow consistently of with those decisions than to allow the appeal and quash the conviction and that I do. Mr. Pang has however made an application for an order for re-trial which Mr. Wu has opposed.

11. The guiding principle to be followed in deciding whether or not to order a re-trial after a conviction has been quashed in circumstances such as these is whether a re-trial ought to be ordered in the interests of justice?

12. Mr. Pang points out that the offence of assault occasioning actual bodily harm is a serious offence, one more grave than common assault such that a re-trial ought to be ordered.

    Mr. Wu, on the other hand, whilst acknowledging that the offence is a serious one, nevertheless points out that the learned Magistrate, after convicting the Appellant, took a very lenient view because he discharged him on entering into a recognisance to be of good behaviour for one year. It is to be noted that this is a case of one’s word against another's, a case not serious enough to warrant the risk of conflicting rulings an credibility. It is a case in which I think the interests of justice would be served if it comes to an end now.