Shum Hung v Tam Fun

Judgment Cited authorities (1) Cited in Precedent Map Related
Judgment Date11 November 1961
Year1961
Judgement NumberCACC338/1961
CourtCourt of Appeal (Hong Kong)
CACC000338/1961 SHUM HUNG v. TAM FUN

CACC000338/1961

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.338 OF 1961

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BETWEEN

SHUM Hung

 Appellant
AND
TAM Fun Respondent

Coram: I.CC. Rigby, S.P.J

Date of Judgment: 11 November 1961

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JUDGMENT

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1. The appellant, a Police Corporal of 15 years' service, was convicted by the Magistrate, Mr. Sanguinetti, on two minor charges of causing wilful and malicious damage to property and using abusive language in a public place whereby a breach of peace might be occasioned. On the first charge he was fined $15.00 and ordered to pay $1.00 compensation, and on the second charge, without any conviction being recorded, he was discharged conditional upon him entering into a bond, in his own recognizance, in the sum of $250.00 for a period of three months. He now appeals against the decision and findings of fact of the Magistrate.

2. The facts of the case are briefly as follows:-

3. On the 23rd of June the complainant, a female hawker, pleaded guilty before the Magistrate, Mr. Sanguinetti, to a charge of hawking without a licence. She was cautioned and discharged. Whilst still before the Magistrate she made certain complaints concerning the conduct of the appellant at the time she was arrested on the charge of hawking. The learned Magistrate asked her if she wished to make a formal complaint against the appellant. Upon her intimation that she did wish to do so, he put her on affirmation and recorded her complaint. According to the Magistrate's record, upon being satisfied as to the "bona fides of the complaint", he directed that summonses be issued against the appellant on the two present charges and a further charge of assault, and further directed that the summonses be returnable on the 30th of June, that is to say, in a week's time.

4. Summonses are, of course, normally issued by a Magistrate upon an unsworn complaint or information being laid before him. Since the Magistrate had taken the somewhat unusual - but, I would hasten to add, in no way improper - course of having the complaint made upon oath before him and had satisfied himself as to the "bona fides of the complaint", it might have been better to have made the summonses returnable before another Magistrate rather than himself. But Mr. Bodilly, Crown Counsel, appearing on behalf of the appellant, most properly in my view, has withdrawn any allegation or suggestion of impropriety or bias in the fact that the learned Magistrate himself tried the case after having heard the original complaint of the complainant.

5. The complainant is a hawker who apparently lives and stays and carries on her business in the street outside No.72 Fa Yuen Street, which is in the immediate vicinity of the Victoria Theatre, Kowloon. At about mid-day on the 22nd of June the appellant was on duty. Part of his duty was apparently to clear away hawkers in that particular area. According to the complainant, she had just finished her business of selling noodles and had packed up, or was in the process of packing up, her utensils when the appellant appeared on the scene. In furtherance of his task of removing the hawkers the appellant, according to the complainant's evidence, deliberate kicked over one of her kerosene tins which contained two empty eating bowls. He then picked up the tin and turned it upside down with the result that the two bowls fell out and were broken. He then picked up two further tins which contained drinking water and poured the contents on the ground. When she remonstrated with him he abused her in obscene language and then instructed the Police Constable with him to take her to the Police Station. According to her evidence, she complained of the appellant's conduct both to the Police Constable who took her to the Police Station and to the Police at the Police Station. Her evidence was uncorroborated. When asked by the Court if she had any witnesses she replied in the negative,...

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