HKSAR v. Lo Ki Fai

HCMA000080/2000

HCMA80/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.80 OF 2000

(ON APPEAL FROM SPCC 6981 OF 1999)

--------------------

--------------------

Coram: Hon Gall J in Court

Dates of hearing: 29 March 2000

Date of judgment: 29 March 2000

----------------------

J U D G M E N T

----------------------

1. The appellant was convicted on 7 December 1999 of assault occasioning actual bodily harm and was sentenced to a period of nine months' imprisonment. He now appeals both the conviction and the sentence.

2. The facts as found by the magistrate were that on 7 September 1999 at the pavement opposite Wang Hong House, Wang Tau Hom Estate at Wong Tai Sin, the victim to this assault, one Chan Chun Wa, was hawking toilet paper from a vehicle parked at the side of the road. Whilst he was working, four persons approached him and after a few words were spoken, they assaulted him. He said that one of them was the appellant and that he had seen him approximately 20 times since July 1998. The appellant was also a hawker of toilet paper and apparently there were some conflict between the two given that they both hawk the same product in the same area. The victim Mr Chan said that the appellant used fists to assault him. They were standing face-to-face, close together and that the three other people also assaulted him.

3. The second witness was the wife of the victim, Madam Cheng, who said that her husband was attacked by four persons. She had seen the appellant before. She identified him as having sold toilet paper in the same area and that she saw him from a distance on this occasion of some 20 feet. She saw four men hit her husband. The last witness was an employee of the first two witnesses aged 16 years. He said that six to seven males, including the appellant, approached Mr Chan, spoke to him for a short while, the attack then commenced. He said that he saw the appellant used his fists to strike Mr Chan, he was at a distance of some 30 to 35 feet from the incident but walked closer to 20 to 22 feet during the incident.

4. The magistrate was concerned about a number of matters and approached them in this way :

"I considered all the evidence. I approached the evidence of all 3 prosecution witnesses with caution. I took into account the inter-relationship of the witnesses. PW1 and PW2 were husband and wife whilst PW3 was effectively their young employee. Furthermore I considered whether or not PW1 and PW2 might have their own purpose to serve in testifying in the way they did; the appellant was a business competitor. Nevertheless all 3 prosecution witnesses impressed me to be honest witnesses. PW1 conceded that he was unhappy that the appellant hawked the same product in the same location which I believed was a mark of his honesty. There was a discrepancy between PW1 and PW2 on the one hand and PW3 on the other hand as regards the number of assailants. PW1 and PW2 both testified there were 4 whereas PW3 testified that there were 6 to 7. In my view this discrepancy was not significant and I was satisfied came about because of an honest but mistaken over-estimate by PW3."

The magistrate therefore considered carefully matters raised by the appellant in this appeal and approached the discrepancies, the issue of the grudge and the relationship between the witnesses in an entirely proper fashion. The magistrate also considered the question of identification, he said this :

"The case against the appellant rested essentially on the identification of the appellant by the 3 witnesses as having participated in the assault. I warned myself of the dangers of relying on identification evidence and directed myself in accordance with the principles set out in the case of Turnbull when evaluating their testimony. Honest witnesses, though convinced that they are right, have been known to be completely and utterly mistaken on the issue of identification. Nevertheless I was satisfied that the identification evidence of each of the 3 witnesses was of high quality and could safely be relied. As far as PW1 and PW2 were concerned, the appellant was not a stranger to them. They had seen him often before; in the case of PW1 about 20 times since July 1998. They both had a name for him; 'Bald-Headed boy'. On the material date both PW1 and PW2 saw his face, PW1 for about 20 seconds and PW2 for about 1-2 minutes."

He went on to deal with the lighting conditions. He held that it was not a fleeting glance and that their identification was a safe identification. He also considered the circumstances in the identification by PW3 and was satisfied that that was also a safe identification.

5. At the commencement of this appeal, the appellant raised before me the question of calling evidence of persons to say that he was not present. The appellant was advised of the law in respect of calling witnesses on appeal and the test that would be applied to the calling of such evidence. I offered an adjournment to the appellant to enable him to obtain statements and to prepare an argument on that matter, the offer was declined. The appellant was represented at trial. The appellant further complains that he was not shown a copy of the medical report of the victim at the time of trial. I am satisfied, since he was represented by a lawyer at that hearing, that the circumstances of the medical report would have been made known to him. In any events, the nature of the injuries were not at issue and nothing in this appeal hangs upon it.

6. The magistrate has approached this matter with care and has considered it in detail. All the matters raised by the appellant as to the ability of witnesses to see what occurred and their identification, and all the other matters raised by the appellant were considered and dealt with by the magistrate. There was nothing in his approach which I can criticize and the appeal against conviction is dismissed. The appellant further appeals sentence.

7. The assault to the victim was one by four men with fists. The magistrate was satisfied that the appellant took a full part in that attack. The victim was found, upon examination, to have pain and tenderness over the right face, right upper chest wall and the back. An X-ray of the spine indicated a collapse of part of the spine. The provisional diagnosis was multiple injury with collapse of L1 of the spine. The victim was in a brace for some three months. The magistrate said this in arriving his sentence :

"I took a serious view of the circumstances of this offence. The appellant had resorted to violence to discourage a business competitor from competing with him. Those circumstances in my view merited a substantial sentence of imprisonment. Moreover this could not be described as impulsive; it was clearly planned in advance. The appellant arranged for 3 other males to join him in an attack on a business competitor. It was a cowardly attack involving 4 persons assaulting one individual. Further I believed I had to take into account the serious consequences to the victim. He had spent 3 days in hospital and, more than 2 months after the event, was still suffering from pain in the head and waist. He had to wear a waist support and would continue to do so until the end of 1999."

The magistrate took into account the family circumstances and the background report he obtained in respect of the appellant. He took as a starting point nine months' imprisonment and found no mitigation of any substance to justify a reduction.

8. That was an entirely appropriate starting point and there was no mitigation. The appeal against sentence is dismissed.

Representation:

Mr Simon Tam, SGC, for HKSAR

Appellant in person