HKSAR v. Chan Koon Fu

HCMA001119/2002

HCMA 1119/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1119 OF 2002

(ON APPEAL FROM TMCC 2788/2001)

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Coram: Hon V. Bokhary J in Court

Date of Hearing: 29 January 2003

Date of Judgment: 29 January 2003

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J U D G M E N T

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1.This appeal against conviction and sentence arises out of proceedings before J T Glass, Esquire in the Magistrate's Court in Tuen Mun last autumn.

2.The Appellant faced, and pleaded not guilty to, two charges, being Charge 1 and Additional Charge 5, of administering poison or other destructive or noxious thing so as to inflict grievous bodily harm, contrary to section 22 of the Offences Against the Person Ordinance, Cap. 212. He pleaded not guilty to both charges, but the Magistrate convicted him on both charges, and sentenced him to concurrent terms of 15 months' imprisonment on each charge, making a total of 15 months' imprisonment.

3.Both charges relate to what happened at a home for the elderly (which I will refer to as "the Home") in Yuen Long. The Appellant was the supervisor of the Home; a Mr Lo Kin Yee was a kitchen worker at the Home; and a Madam Ko Ah Kam was an inmate at the Home. Both charges relate to the administration, at the Home, of a poison or other destructive or noxious thing, namely Thioridazin, to Madam Ko so as to inflict grievous bodily harm on her.

4.Under Charge 1, Mr Lo and the Appellant were charged with having done that together on 27 September 2000. Under Additional Charge 5, the Appellant was charged with having done that on his own one day earlier on 26 September 2000.

5.Initially the appeal against conviction was in respect of both Charge 1 and Additional Charge 5. But the Appellant has since abandoned his appeal against his conviction on Charge 1. The facts which he found and the evidence on which he found them are set out at great length in the Magistrate's Statement of Findings. I do not propose to repeat these facts. Nor do I propose to recite counsel's arguments which I have of course considered in full.

6.There was evidence on which the Magistrate could conclude, as he did, that at the time and place mentioned in Additional Charge 5, which is now the only charge which his appeal concerns, Thioridazin has been administered to Madam Ko so as to inflict grievous bodily harm on her. There was evidence which the Magistrate was entitled to accept and on which to conclude that the only reasonable inference is that it was the Appellant who did that and that he did it unlawfully and maliciously. The only point which has caused me some concern at one stage is as follows. At the beginning of paragraph 56 of his Statement of Findings, the Magistrate said:

"I found the administration of the 2 x 100 mg Thioridazin on 26 September was the cause of this very low blood sugar level..."

However, the professor called by the prosecution had said this in evidence (at p. 580 D-E of the transcript):

"I don't know of a connection between Thioridazin and low blood sugar. It's not a ... to my knowledge, it's not a recognised connection."

7.Is this fatal to the Magistrate's conclusion? The rest of paragraph 56 of the Magistrate's Statement of Findings reads as follows:

"... and it was this dose of the drug which had caused PW1 to have a relapsed after breakfast into an unconscious state. This I found was an unknown consequence of the drug on PW1. I found there was no other reasonable explanation for the blood sugar level fall because PW1 was, I found, fit and healthy when she entered the home and she was not under any treatment. This was confirmed by the hospital report on her. I also found PW1's medical condition was being monitored whilst she was cared for by the SWD and there was no such report of any medical condition upon her arrival at the home and I found there would have been such if she had suffered any such condition."

8.In all the circumstances, I do not think that the question of low blood sugar involves anything which vitiates the Magistrate's conclusion or renders it unsafe or unsatisfactory. The appeal against conviction is dismissed.

9.The Appellant's counsel has indicated that he would not pursue his appeal against sentence if his appeal against conviction on Additional Charge 5 was dismissed. The appeal against conviction has been dismissed and the appeal against sentence must also be dismissed.

Representation:

Mr Kenneth C W Chik, instructed by Messrs Anthony Ho & Co., for the Appellant.

Mr W S Cheung, SADPP of the Department of Justice, for the Respondent.