THE QUEEN v. LAU LAU KAI

IN THE SUPREME COURT OF HONG KONG

Appellate Jurisdiction

MAGISTRACY APPEAL NO. 54 OF 1993

________________

________________

J U D G M E N T

________________

1. The appellant was convicted before a magistrate of a charge of common assault. He was bound over to be of good behaviour for a period of 12 months in the sum of $2,000. The appeal is against conviction only.

2. The matter arose out of some arguments between the appellant and PW1, a salesgirl of a shop selling garments. The appellant having bought two pairs of trousers complained that they were too short, and after the shop was unable to replace them with trousers of the right length he demanded a refund. This, PW1 refused and the appellant at that moment pushed PW1 around causing her to bump against the mirror behind her desk. The appellant also threw the telephone set at her and slapped her at her neck. The police was called.

3. The appellant gave evidence. It was his case that he reasoned with PW1 after she was unable to provide him with the trousers that would meet his requirements. In the course of doing so, PW1 threatened to call the police and accused him that he had forced her to open the till. In the face of the threat, he decided to dial “999” but PW1 pulled the telephone wire off its socket and used the telephone set to hit him.

4. Essentially, this is a case of the words of PW1 against those of the appellant. It is therefore vital that the magistrate had to be satisfied so that he was sure that PW1 was telling the truth before be could convict. But towards the end of the statement of findings, the learned magistrate made findings which have caused me anxiety. At p.30 of the appeal bundle, he said:

“Having seen and heard witnesses I am inclined to accept PW1’s testimony in preference to Defendant’s version.”

This is clearly a wrong direction in law and Mr. Cheung, Senior Crown Counsel, very fairly and properly, indicated he was unable to support the conviction.

5. Accordingly, the appeal against conviction must be allowed and the order binding over the appellant set aside.