THE QUEEN v. CHONG KAM-SAU

HEADNOTE

                        Magistrates 'findings'-requirements.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 859 OF 1985

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BETWEEN

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JUDGMENT

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1. I have given orally my reasons for rejecting the second ground of appeal, it is unnecessary to put them in writing. I allow the appeal on the first ground, for reasons which I put in writing for the information of the learned magistrate. The charge is assaulting a police officer. There were four prosecution witnesses and four defence witnesses. The learned magistrate's findings consist of five pages of typescript in which he repeats in detail the evidence of the witnesses. That is followed by the following :

"Giving full weight to the evidence of the defendant and his three witnesses I was satisfied from the evidence of P.W.2, P.W.3 and P.W.4 that in fact the defendant assaulted Police Constable 20413 by pushing him in the chest with his hands."

2. The requirement for proper 'findigns' are set out in R. v. Ma Wai Shuen Cr. App 949/78, R. v. Lam Kam Ming Cr. App. 607/78, R. v. Lai Yuk Kui [1981] H.K.L.R.691. As I said in Lam Kam Ming's case the reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty.

3. In this case, there was a fracas during the course of which an aquarium, belonging to the appellant, was smashed. The prosecution case was that it was due to the defendant assaulting the police. The defence case was that it was caused by the police themselves, not deliberately, but accidentally. In the circumstances it was a case where police officers might feel they had personal interest in the case. Additionally one of the defence witnesses was a 12-year old boy who apparently was a completely independent witness. In these circumstances the findings are inadequate and I allowed the appeal and set aside the conviction and sentence.

Representation:

Neil B. Owen, Solicitor of Hampton, Winter and Glynn, for the appellant.

I.G. Cross, Acting Senior Assistant Crown Prosecutor, for the respondent.