HKSAR v. Chan Siu Nga

HCMA001093/2001

HCMA 1093/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1093 OF 2001

(ON APPEAL FROM ESCC 2822 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 20 November 2001

Date of Judgment: 20 November 2001

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J U D G M E N T

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1.This is an appeal against conviction and sentence.

2.The appellant was convicted after trial of an offence of wounding contrary to Section 19 of the Offences Against The Persons Ordinance, Cap.212.

3.The facts of the case as found by the learned magistrate were that the victim of the offence PW1 and her female friend PW2 had just left a 7-11 store in Wanchai when the appellant approached them holding a 6 inch knife. PW1 and the appellant had a history of bad blood between them. The appellant walked up to PW1 and hit her on the head with the handle of the knife some three or so times. The appellant then ran off. PW1 sustained an injury to her head as a result of the attack which required sutures.

4.I will deal with the appeal against conviction first. PW1 and PW2 gave evidence as to the above facts and were accepted as witnesses of truth by the learned magistrate. The appellant had given evidence to the effect that both, she and PW1 were prostitutes and in competition with each other. She said she had taken some of PW1's customers from her and for that reason, on this particular occasion PW1 and PW2 had chased her and hit her. She said eventually PW1 was pushed away by some men and that PW1 may have been injured then. According to the appellant these events made PW1 angry and for that reason PW1 eventually succeeded in framing up the appellant although the appellant had in fact been the person who called the police and reported the matter to them.

5.In support of her general ground of appeal that the conviction was unsafe the appellant today complains that the magistrate did not take into account that PW1 and PW2 and perhaps the police witnesses were biased against her and had colluded in framing her up.

6.In that regard, the magistrate, it is clear had in fact dealt with that allegation of the appellant at trial. He had said this:-

"PW1 it is clear had known the appellant for a number of years, and it was very clear that there was some prior history between them, but I am of the view that this in no way caused her to concoct a story or to collude in any way with PW2 in framing the appellant

PW3 is the police officer and he was also an honest and believable witness. He gives an account of what the appellant had said to him upon her arrest and caution. I am further satisfied that neither he, nor PW1-2 showed any bias in the giving of their evidence that would effect their recall of what actually happened at the scene. They did not all collude together with a view of framing the appellant."

I am satisfied the learned magistrate properly took this aspect of the appellant's case into account. There is no merit in that particular aspect of the appellant's appeal.

7.At the end of the day, the real issue before the learned magistrate was that of the credibility of the witnesses who gave evidence. Those witnesses so far as the events that took place outside the 7-11 store were concerned were PW1 and PW2 and the appellant herself. Effectively, it was the word of PW1 and PW2 against the word of the appellant. The magistrate was plainly aware of this and he assessed the evidence of PW1 and PW2 and the appellant with some care.

8.So far as the credibility of PW1 and PW2 was concerned the learned magistrate said this:-

"From the outset I can say that I found PW1, PW2 to be honest and believable witnesses with respect to their evidence of the incident. I accept what they say with regard to it. Each of them gave a clear account of what they saw the appellant do in assaulting of PW1 and I accept that."

9.So far the evidence of the appellant herself is concerned the learned magistrate said this:-

"I had also heard and carefully considered the evidence of the appellant. I was not impressed with her in the witness box. I did not believe her version of events and I reject it. I do not believe her contention that she did not assault PW1 and in fact was the victim herself as she had relayed to PW3."

In short, the learned magistrate was perfectly aware of the issues which were before him in the trial. At the end of the day, he accepted the evidence of PW1 and PW2 and rejected that of the appellant. He was entitled to do so. He gave reasons for his decision in that regard. He was in the best position to assess the credibility of the witnesses. There can be no criticism of his findings in that regard. The appeal against conviction is dismissed.

10.As far as the appellant's appeal against sentence is concerned she says that the six-month sentence of imprisonment imposed upon her is too severe.

11.The magistrate was aware that the victim of the assault sustained a wound requiring stitches and that that wound was inflicted by way of multiple blows with a knife handle. As he correctly said in his reasons for sentence this was a serious matter which would normally warrant perhaps a sentence somewhere between nine and twelve months after trial.

12.He took into account, without specifying them, the circumstances of the whole of the case, and I accept from that that he therefore took into account the same matters of provocation raised by the appellant before me today. She asserts that her fight with the victim was in large part provoked by the actions of the victim herself. It may well have been that that the magistrate took into account when taking a starting point of sentence of six-months imprisonment. He found that there were no factors available in mitigation and accordingly that starting point of sentence became the final sentence imposed on the appellant.

13.There can be no criticism of the magistrate's approach to sentence. He took into account all of the matters before him. He, in the circumstances of the case quite properly concluded that a sentence of imprisonment was required rather than any other form of punishment. The quantum of that sentence of imprisonment cannot be criticized, indeed, to some extent it could be considered to be quite lenient.

14.There can be no reduction in respect of any aspect of the appellant's previous history or good character. Prior to this offence she had been convicted on three earlier occasions of fighting or assault.

15.Accordingly, the appeal against sentence is also dismissed.

Representation:

Mr W D Moultrie, S.G.C. of the Department of Justice for the Respondent

Appellant in person