LAU CHAU v. THE QUEEN

CACC000375/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.375 OF 1968

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Between:
	LAU CHAU	Appellant
	AND
	THE QUEEN	Respondent

Coram: Mills-Owens J.

Date of Judgment: 7 August 1968

 

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JUDGMENT

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1. In this case I allowed the appellant's appeal from a conviction in the Magistrate's Court of assault causing actual bodily harm in respect of which he was fined $100 and bound over, for reasons given orally. I now state those reasons.

2. In his findings and decision the learned Magistrate said:- "I did not consider that it could be held that the defendant was acting in self-defence ....". A direction in such terms to a jury would be plainly bad as indicating that the onus of establishing self-defence lay on the defence or as failing to indicate that any reasonable doubt whether the defendant was acting in self-defence must lead to an acquittal (see R. v. Chan Kau⁽¹⁾, correcting a misleading statement in former editions of Archbold; R. v. Lobell⁽²⁾; and R. v. Wheeler⁽³⁾). I felt obliged to take the view that this equally applies to a Magistrate's decision.

3. On the evidence also, as it appeared to me, there was room for considerable doubt. The victim was admittedly struck on the back of the head with a hammer in the course of an altercation between him and the appellant. The appellant said in evidence that the victim attacked him with the hammer, that the victim was accompanied by two others, that he (the appellant) warded off the blow, the hammer fell to the ground and he (the appellant) then picked it up, threw it at the victim and his companions and ran away. The victim, in giving evidence, denied that he was armed with the hammer and denied also that he was accompanied by others. The learned Magistrate held that the assault took place while the two of them, the victim and the appellant, were alone and that the appellant 'picked up a hammer' and struck the victim with it. But the victim himself had said, in evidence, that he rushed out into the street, carrying the hammer, intent on 'teaching him (the appellant) a lesson' because the appellant had bullied his brother. As he said, he put the hammer down before struggling with the appellant, but the fact remains that this was the weapon used and that the victim was the aggressor and on the offensive. There was also evidence from a police officer to the effect that the victim was, in fact, accompanied by others, whom the officer named. The appellant was amply corroborated by two defence witnesses, one of them being apparently an independent witness, in his version of the affair. Neither of these two witnesses was cross-examined and the Magistrate did not express any doubt as to their evidence. Their evidence and that of the appellant was entirely consistent with the appellant's statement to the police. At the least, in my view, there was considerable room for doubt as to which version was correct, that of the victim or that of the appellant.

4. In these circumstances I allowed the appeal against conviction.

 

 

	(R.H. Mills-Owens)
	Puisne Judge

 

7th August 1968.

 

Representation:

Shears instructed by P.H. Sin & Co. for appellant.

Penlington, Crown Counsel, for respondent.

 

 

(1) (1955) A.C. 206

(2) (1957) 41 Cr. App. R. 100

(3) (1967) 1 W.L.R. 1531