Common Assault and the Incredible Witness

In a “one-on-one” situation, allegations are easily made but difficult to rebut. Thus, the credibility of a witness is of utmost importance.

In ESCC 1341/2021, Mr Gordon Chan represented a defendant who was charged with assaulting a solicitor. He was acquitted after trial as the magistrate found that the solicitor was incredible. The solicitor was the defendant’s legal representative in a High Court civil action, which was dismissed due to the omission of the solicitor.

The solicitor alleged that one evening in his office room, he was slapped on the head by the defendant who was there to discuss a settlement agreement for the dismissed High Court action. There were no witnesses and the solicitor suffered no physical injury.

In such a situation, the credibility and reliability of the solicitor formed the sole issue of the case. One obvious problem is whether he is more credible by his profession, another his experience with the legal system.

The higher courts reiterated time and again that witnesses of special status, e.g. a police officer or a solicitor here, are not more credible. All witnesses must be on a level playing field. The court cannot consider the consequences to a witness if he was found to be dishonest. (See Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600)

In this case, the evidence of the solicitor in the courtroom was contradicted by his written statements, his initial complaint to the police at the scene, and even the medical report. It also transpired that the solicitor called for an ambulance to the hospital whilst meeting the defendant only one week before the alleged assault took place.

More importantly, the subject matter in the High Court action concerned is in the scale of billions of dollars. The learned Magistrate accepted that the solicitor may be motivated by the fact that the dismissed action may result in a substantial professional liability, but the parties failed to settle after an extended period. However, if the defendant was arrested then he would be prohibited from contacting the solicitor.

This case highlights the inherent challenge faced by a defendant in a “one-on-one” case and especially against a witness who is traditionally regarded as more credible.

Common Assault and the Incredible Witness
Gordon Chan avatar
Gordon Chan, Esq

Barrister of the High Court of Hong Kong. Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.

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