WONG DUNG v. THE QUEEN
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CACC000650/1977
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
CRIMINAL APPEAL No. 650 OF 1977
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| BETWEEN | ||
| WONG DUNG | Appellant | |
| and | ||
| THE QUEEN | Respondent |
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Coram: Zimmern, J. in Court.
Date of Judgment: 11th August 1977.
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JUDGMENT
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1. In this case the appellant WONG Dung 72 years of age was charged with unlawfully and maliciously wounding one NG Ka-kau. At the hearing before the learned magistrate NG Ka-kau gave evidence and his evidence was supported by his companion CHAN Shu-yung. They both said that the appellant picked up a spade in a field and struck NG Ka-kau. The appellant in his defence said otherwise. He said he had been assaulted by NG Ka-kau and he used the spade in self-defence. The learned magistrate in his clear statement of finding said he believed the prosecution witnesses and convicted the appellant. However when this matter came before me on appeal Crown Counsel Mr. Nople handed up to me the brief Facts of the Case admitted by NG Ka-kau when he pleaded guilty to an assault charge before another magistrate. I cite the relevant passage of his admissions. "The victim was not satisfied with some of the terms and he refused to move out. Both of them had a heated argument. In the heat of the argument both of them fought together. The victim took up a spade from the ground and attacked the defendant. The defendant kicked the victim's chest with his feet." This passage directly contradicts the evidence of P.W.1 and P.W.2 and supports the evidence of the appellant. I am quite certain that if the learned magistrate had had the benefit of seeing this statement, he would not have accepted the evidence of P.W.1 and P.W.2. That only leaves the matter whether it was reasonable for the appellant to use the spade in his self-defence in that fight. I have seen the spade. NG was at that date a robust man of 29. The appellant was a fragile man of 72. In my opinion by using that spade the appellant was using no more force than was necessary. The appeal is allowed, conviction quashed and sentence set aside.
| ( A. Zimmern ) | |
| Judge of High Court |
Representation:
Cheng Huan (DLA) for Appellant
Nople for Crown