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The Queen v Lam Hau Hing And Others

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date07 February 1990
Year1990
Judgement NumberHCMA1512/1989
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA001512/1989 THE QUEEN v. LAM HAU HING AND OTHERS

HCMA001512/1989

Mag. App. No. 1512/89

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HEADNOTE

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AFFRAY - elements of charge Counsel seeking indication as to sentence before plea. Wrong for Magistrate to give a defendant before plea expectations which are not fulfiled after guilty plea entered. Need for Magistrate to keep an accurate record of such pre trial discussions.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1512 OF 1989

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BETWEEN

THE QUEEN Respondent

AND
LAM HAU HING 1st Appellant
TAM KWOK FAI 2nd Appellant
FU HO KIU 3rd Appellant
LI KAI SUN 4th Appellant
WONG CHI HUNG 5th Appellant
LAU KIN CHUNG 6th Appellant
LOK HANG WAI 7th Appellant

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Coram: Hon. Ryan J. in Court

Date of hearing: 7 February 1990

Date of delivery of judgment: 7 February 1990

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JUDGMENT

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1. The 1st, 2nd, 4th, 5th, 6th and 7th appellants pleaded guilty before Mr G.A. Andree-Wiltens to a charge of affray. They were each sentenced to two months' imprisonment. The 6th appellant pleaded guilty to a wounding charge under section 19 of the Offenses Against the Persons Ordinance and was sentenced to 6 months' imprisonment. The 3rd appellant pleaded not guilty to a charge of affray but was convicted after trial and sentenced to 3 months' imprisonment. The 3rd appellant now appeals against conviction and all of the appellants appeal against sentence.

2. I dismissed the appeal against conviction but allowed the appeals against sentence. I now give my reasons for having done so.

3. The brief facts were that 15 off duty police officers attended a Brandy Promotion dinner at the Sun Yick Restaurant on the 11th May 1989. The appellants were among a group at another table at the dinner. Shortly after 11 p.m. there was an exchange between one of the group and a waiter. Some of the police party tried to mediate, an argument developed and the appellants' group, stirred on by Chan Chi Ho, a narcotics agent for the Philippine Government (who later absconded while on bail) attacked the police party with chairs and bottles. The 6th appellant hit one of the police officers on the head with a bottle causing a larceration. He seems to have been the only casualty.

4. The 3rd's appellant appeal against conviction.

In his Statement of Findings, the Magistrate had this to say:

"There is no question that anyone of reasonable firmness at the Restaurant at the time would have been in terror - in grave fear of injury, either from bottles or chairs. The fact that the police had to draw their revolvers, proves this."

5. The defence complain that the Magistrate was wrong to draw this inference, there being no evidence from a by-stander other than PW1, DPC Leung who gave no specific evidence of having been in terror at the time. DPC Leung gave detailed evidence of the incident and of the fracas having developed to a stage where the assailants advanced on him in such a way as he felt the need to draw his revolver.

6. In Bruce John Plastow (1988) Cr. App.48, the Court of Appeal considered the ingredients of the charge of affray. Walkins, L.J. at page 51 had this to say:-

"We turn therefore to see what are the ingredients which the prosecution had to prove with regard to affray. They had to establish that:-

(i) There was unlawful fighting or unlawful violence used by one or more persons against another or others; or there was an unlawful display of force by one or more persons without actual violence and;

(ii) The unlawful fighting, violence or display of force was such that a by-stander of reasonable firmness and courage (whether or not present " or likely to be present) might reasonably be expected to be terrified.

That we have taken from the most recent authority on the subject which is the Attorney General's reference (No. 3 of 1983) (1985)80 CR.APP.R. 150, (1985) Q. B.242 in which the Lord Justice Lord Lane gave the judgment. That case did not involve a consideration of whether or not the conception of terror embraced not only a single by-stander but also his feelings for another by-stander or even for a person involved in the fighting itself. It was concerned with the point as to who was capable of being held to be, in any given circumstance, a by-stander. It was held that a person actually involved in the fighting could be a by-stander along with others. In the course of giving judgment, the Lord Chief Justice included a reference to observations of Lord Reid in Taylor v. D.P.P. [1973]57 Cr. Appr.915; [1973] AC 964. In the course of his speech at p. 97 and pp. 989, 990 respectively Lord Reid said:-

'The question of terror does not arise in this case but as it was much referred to in argument and is an essential element of the offence, I think that I must say a word about it. Undoubtedly, if people are present, it is not necessary to prove by their evidence that they were terrified. It is enought if the circumstances are such that ordinary people like them would have been terrified. I say 'would' not 'might' have been, but I am much more doubtful about suggestions in some cases that no one but the combatants need be present at all or even with in earshot .. that it is enought that, if some one had been present, he would have been terrified. As terror is an essential ingredient of the offence, I think that there can be no difference in principle between violence in a public or a private place. But that is a matter which can be decided when it arises.'"

7. The Magistrate had before him...

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