HKSAR v. Chong Kai Hoi

HCMA001060/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1060/97

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Coram: The Honourable Madam Justice Beeson in Court

Date of Hearing: 25 February 1998

Date of Judgment: 25 February 1998

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J U D G M E N T

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1. The Appellant appeals against conviction in the Magistracy on three counts, one of indecent assault; one of assault occasioning actual bodily harm and the third of common assault. He also appeals against sentences of 14 days for indecent assault; 9 months for the assault occasioning actual bodily harm and 3 months for the common assault. The sentences were ordered by the Magistrate to be consecutive.

2. The facts of the incident were that the female victim had both her breasts grabbed by the Appellant as he walked past her in the corridor of a karaoke lounge. The woman raised the alarm and went back to her friends in order to take some action against the Appellant. The group went to the room where the Appellant was with his friends. Shortly afterwards the Appellant and his group came out and assaulted the victim's group. In the course of this struggle the female victim of the Indecent Assault was hit on the head with a hard object and sustained injuries. One of her male friends was also assaulted by the Appellant's group.

3. There were lengthy grounds of appeal put before the court, the main ground being that the Magistrate erred in law in convicting the Appellant upon the charges without giving any consideration, or proper consideration, to the defence case. Other grounds were that he erroneously rejected defence evidence and that wrongful identification was never properly dealt with in his findings or elsewhere.

4. This was a comparatively simple trial although it stretched over two days. It was basically necessary for the Magistrate to consider the credibility of the witnesses for the prosecution. The appellant's defence put forward by himself and his common law wife was a simple one. There was a denial of the indecent assault, although an admission of an accidental bumping because the corridor was narrow and, further, that he had been in his own karaoke room thereafter until such time as he left the premises. Although he and his group had heard the sound of what appeared to be a fight in the corridor, the fight had nothing to do with them and did not impinge on their entertainment.

5. The Magistrate gave his reasons for verdict at the end of the trial and summarised them in his Statement of Findings. He was satisfied that the Appellant had indecently assaulted the victim by grabbing both her breasts and that he was followed to a karaoke room by the victim and two of her friends and soon afterwards he was amongst the group who burst out of the room and assaulted the victim of the indecent assault as well as one of her male friends.

6. The Appellant was represented throughout the trial and the witnesses were exhaustively cross-examined by defence counsel. The important points as well as the discrepancies did not pass the Magistrate by. He reminded himself of the desirability of corroboration in respect of the indecent assault, and said although there was none in this case that he was satisfied that the woman was telling the truth about the incident and accepted her evidence. He was satisfied in respect of the other two charges that the assaults had taken place as the prosecution witnesses had said. The Magistrate was well aware of the discrepancies, and actually rejected the evidence of one of the prosecution witnesses in its entirety. Further he examined the possibility that the victim and her companions may have been colluding in the evidence they gave in court.

7. It is not correct that the Magistrate did not consider the Appellant's defence but the Appellant's defence was so simple that the Magistrate did not have to consider much more than general questions of credibility. It was submitted that the question of identification was a major one that was not dealt with by the Magistrate. I note the question of identification was not one on which the defence counsel relied in his final submission to court. This was not a fleeting glance situation where the Magistrate needed to give himself a full Turnabout direction but the Magistrate was fully aware of the need for care. The evidence made it clear that the victim of the indecent assault had the Appellant in her sight and under her view for a considerable period of time as had her companions, and that she was well able to identify him when the other assaults occurred. I am satisfied that the Magistrate took all necessary matters into account. I find these convictions safe and dismiss the appeal against conviction.

Appeal Against Sentence

8. It was submitted that the Magistrate failed to consider mitigation advanced on the Appellant's behalf and ignored the gap in the Appellant's previous record, giving too much prominence to two previous convictions for violence. I do not consider that either of these grounds was substantiated. The Magistrate had various sentencing factors put before him and the Appellant did have two convictions for violence. The Magistrate did not say he relied on them but simply mentioned them factually when passing sentence. It was submitted also that the sentence of three months for the common assault charge was excessive and that the Magistrate failed to consider whether the sentence, even if appropriate, should run concurrently to that for the A.O.A.B.H. charge. It was further suggested that the Magistrate failed to consider alternative sentencing options, including a suspended sentence.

9. Having considered the mitigation and the Magistrate's reasons for sentence I consider that all these sentences are of appropriate length. The sentence of 14 days imprisonment is at the low end of the suggested range of sentence for offences of indecent assault. The assault occasioning actual bodily harm was a serious one and aggravated, as the Magistrate rightly thought, by the fact that it resulted because the victim was attempting to pursue a complaint to police about the earlier indecent assault. The medical report indicates that the victim suffered a 4 cm haematoma with 2 cm laceration on the top of her head and that this required 3 stitches. Other injuries were swelling over the right eyebrow region; superficial abrasion over the right face; swelling and bruise on the left lower jaw and swelling on the left face.

10. The second and third charges resulted from deliberate attacks organised by the Appellant together with his friends and acquaintances and the starting point of nine months taken by the Magistrate for conviction after the trial is entirely appropriate. The Magistrate noted that the Appellant did have previous convictions for violence, the most recent being an assault occasioning actual bodily harm in 1991. The Magistrate stated when sentencing that he realised that the incidents the basis of the charges took place at about the same time, at the same location. He considered that charge one was different in kind from charge two although the victim was the same and that charge three, although a similar offence to charge two, had a different victim. He ordered that all the sentences be consecutive on that basis.

11. While I accept that the Magistrate's assessment of the individual sentences is correct it does not appear that he considered the question of totality in this case. After looking at the circumstances of the case and the sentences, considerations of totality make it appropriate that the sentence on the common assault run concurrently with that for the assault occasioning actual bodily harm. The sentence on the indecent assault should run consecutively. Accordingly I order that the sentence on the C charge run concurrently to that on the B charge; the total sentence would therefore be 9 months and 14 days. The appeal against sentence otherwise is dismissed.

Representation:

Lily Tse, S.G.C., for D.P.P.

Robert Buchanan, inst'd by M/s. Augustine C.Y. Tong & Co. for Appellant