R. v. YEUNG CHI CHUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1516 OF 1996

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J U D G M E N T

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1. The appellant was convicted after trial of the offence of assault occasioning actual bodily harm. He now appealed against conviction.

2. The case arose out of a dispute between the victim (PW1) and DW1. They were cohabitees and had a child. They separated on 30th August 1996 but the child remained with PW1. On the morning after their separation, the appellant went to the premises of PW1 with two men intending to get the child back. They had a dispute with PW1, as a result a struggle followed and PW1 was injured. PW1's version of how he was injured was that the appellant and the other two men had assaulted him as he tried to prevent them from taking away the child. The appellant's version was that PW1 had armed himself with a pole and waited outside the premises and he assaulted him and his men. They had to defend themselves. Subsequently they restrained PW1 and took away the child.

3. The magistrate was faced with these two versions of what happened. The magistrate in his findings said this :

"I concluded that PW1 had probably been less than entirely frank and had not told me the truth when he had denied using a pole against the Defendant and the other men and similarly perhaps when he had told me that he had been punched by the Defendant. Nonetheless the Defendant told me in his evidence that upon his arrival with the other men at PW1's home and his being asked them by PW1 what he was doing there, he had said that he wanted the child. Not surprisingly perhaps, PW1 had lost his temper and attempted to ward them off with a pole/rod. At that stage the Defendant said that he and the other 2 men had retreated slightly whereupon PW1 had lowered the rod only to waive it again in fear. The response of the Defendant and his companions was not to retreat but to advance to try to disarm PW1 and to overpower him whilst one of them removed the child. They succeeded in each respect."

The magistrate then said :

"The precise truth I believed lay somewhere between the 2 versions but perhaps more in line with the Defendant's than PW1's. In his record of interview the Defendant had said that it was only after they had told PW1 that they wanted to take the child away that PW1 had armed himself with an iron water pipe. Fearing that PW1 would hit them with it he and his companions had 'grasped him together'. The Defendant denied having ever struck PW1 with the iron water pipe. I accepted all of that as true."

The magistrate found that there was no necessity justifying the seizing of the child and the wresting of the pole from PW1 and restraining him constituted an assault.

4. From what has been said by the magistrate, the magistrate was unable to say he was sure of PW1's evidence that he had been attacked by the appellant and his companions. The magistrate accepted the appellant's version that he did not hit PW1 with an iron pipe. The magistrate had apparently accepted the appellant at the time was in fear of being hit by PW1 and with his companions went up to grasp PW1.

5. Mr Cheung, counsel for the appellant, submitted that the magistrate had reservations in the prosecution case. The crux of the defence was self defence and the magistrate had not given sufficient weight to that defence.

6. From the findings, the magistrate could not have been sure about the prosecution case that PW1 had been punched and kicked and that the appellant and his companions were not acting in self defence. The conviction is unsafe and unsatisfactory. The appeal is allowed and the conviction is quashed. The sentence is set aside.