YEUNG CHI WAI v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 1036 OF 1987

__________________

_______________

J U D G M E N T

_______________

1. This is an appeal against a conviction for fighting in a public place, contrary to section 25 of the Public Order Ordinance; Cap.245.

2. The 2nd accused pleaded guilty and the 1st accused, who is the appellant today, pleaded not guilty: The Prosecution called two witnesses, a security guard (PW1) and the 2nd accused (PW2). PW1 gave evidence of trying to mediate in a dispute between PW2 and the appellant and that he then saw them fighting with their fists. PW2 gave evidence, admitted that he hit the appellant first but claimed that the appellant fought back. He used his fists while the appellant used his feet. The appellant gave evidence, denying his involvement in the fight but said that he was trying to defend himself by warding off PW2's blows.

The learned magistrate, in his decision, stated, inter alia:

" .... I find no reason to disbelieve D2, whom I found a forthright and candid witness. D1 gave his evidence well and is an articulate young man but I found that I could not be persuaded that the course of the incident was as he described it. " (emphasis added)

And in his Statement of Findings, he stated, inter alia:

" .... Of the two the other defendant was the more believable and with the rather poor backing up of the security guard I found that I was satisfied ... " (emphasis added)

3. Counsel for the Crown very properly pointed out that the words I have emphasized used by the learned magistrate in his decision and the Statement of Findings were somewhat unfortunate as they tended to give the impression that the appellant was required to prove something, that the learned magistrate may have preferred the evidence of the 2nd accused to that of the appellant. I do not think the learned magistrate made an elementary error as regards the onus of proof but I agree that the wording used was unfortunate and gives the wrong impression. I have reluctantly come to the conclusion that in view of the wording used that the conviction is unsafe and unsatisfactory. The appeal is allowed. The conviction is quashed and the sentence set aside. Fine and costs, if paid, to be refunded to the appellant.