HKSAR v. Leung Kiu Yan and Another

HCMA000807/1999

HCMA 807/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 807 OF 1999

(On Appeal from NKCC 8945 of 1998)

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Coram: The Hon. Madam Justice Beeson in Court

Date of Hearing: 25 November 1999

Date of Judgment: 25 November 1999

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J U D G M E N T

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1. These Appellants appeal against their conviction on a charge of Affray for which each was sentenced to a Community Service Order of 180 hours.

2. The circumstances were effectively those of a running fight; police came upon the affray and gave evidence about what they had seen during the course of the incident.

3. The 2nd Appellant claims that the Magistrate erred in failing to consider medical evidence that was before him, medical evidence which was not disputed by the prosecution and which the Magistrate failed to consider in the context of his defence, given in court, that he collapsed when he arrived near the Apple Shop, the ultimate venue of the fighting incident. Appellant also submitted that the Magistrate failed to evaluate this evidence which supported the defence case and also severely undermined, according to the Appellant, the evidence of PW1 and PW3, the police officers, as to the Appellant's involvement in the fighting. Appellant also argued that the Magistrate had unfairly rejected his evidence that he collapsed when he arrived at the shop and that in the circumstances the verdict was unsafe and unsatisfactory.

4. The 1st Appellant, who represented himself at the appeal, did not have any specific grounds of appeal other than the general grounds, but submitted that he had been wrongly identified as taking the part that he was said by the police to have taken in the incident. He pointed out that as he was found to have no injuries when he was medically examined, how was it that he could have taken part in the incident.

5. I have looked at the Magistrate's Statement of Findings and have also considered the exhibits before the court, including the medical reports. It is quite obvious that the Magistrate took a great deal of care in analysing this case. In particular, he paid attention to the evidence of the police officers. He examined and resolved the inconsistencies resulting from the police evidence and also examined the inconsistencies that arose between accounts of the police and the civilian witness. He had before him a statement of the 4th Defendant, the present 2nd Appellant, giving his account of what had happened on that night and he was entitled to reject, as he did, that evidence.

6. In my view, although it might have made for a more detailed Statement of Findings if the Magistrate had commented on the individual medical reports of each of the parties, in the case of the 2nd Appellant, the medical report was irrelevant in view of the account given by the Appellant at the time of the hearing and also in relation to the account that he had given to the police in his statement.

7. I see no basis for upsetting the Magistrate's findings on these convictions. Similarly with the appeal of the 1st Appellant, there was nothing that this Appellant has raised before me which gives me any concern about his conviction. Both the appeals are dismissed.

Representation:

Mr. Alex Lee, S.G.C. for D.P.P.

Mr. Victor W.T. So, inst'd by Yu Hung & Co for 2nd Appellant - D4 LAM Ping-chung

LEUNG Kiu-yan, 1st Appellant, in person