Case against waiter lacked teeth, judge rules

Assault conviction quashed on appeal because vital piece of evidence was absent

PUBLISHED : Thursday, 04 September, 2014, 3:51am
UPDATED : Thursday, 04 September, 2014, 5:20am

A waiter convicted of punching a customer and knocking out his two front teeth has had his name cleared on appeal - because the teeth in question were not produced as evidence.

High Court judge Mrs Justice Judianna Barnes Wai-ling quashed Chung See-kwing's conviction for assault causing actual bodily harm and his two-month prison sentence, citing insufficient evidence.

The judge said the customer, Cheung Chong-tat, had told how Chung's punch caused two teeth - in previously good condition - to fall out.

"If a punch could cause two front teeth to fall out, the force must be very strong," Barnes wrote in her judgment, released yesterday. From this, she inferred that the person who received the punch must have suffered injuries to the lips or mouth. However, the prosecution failed to show that Chung received such injuries in the original case at Fanling Court.

"I do not understand why the two teeth, being such an important piece of evidence to support the case, were not submitted to the court during the trial. It caused doubts as to whether [Cheung] had returned to the scene and looked for his teeth," the judge wrote.

She had no doubt that Cheung had lost the teeth, but said there was no proof that the loss was caused by Chung's actions. The conviction was therefore unsafe and both conviction and sentence should be quashed.

The lower court had heard that Cheung was drinking beer with friends on September 19 last year in the Sheung Shui restaurant where Chung worked. He claimed the defendant appeared drunk and punched him several times before fleeing. He reported the case to police and was examined in hospital that night.

But Chung claimed his accuser had been unhappy with him because he had turned off the television. The waiter said Cheung had, in fact, approached him and punched him, receiving injuries only when he fought back. Medical evidence showed both parties were injured.