HKSAR v. Hsu Shau-ru Tom

HCMA001071/2002

HCMA 1071/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1071 OF 2002

(ON APPEAL FROM ESCC 1872 OF 2002)

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Coram: Deputy High Court Judge Line in Court

Date of Hearing: 14 January 2003

Date of Judgment: 14 January 2003

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J U D G M E N T

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1.This is an appeal against conviction for common assault. The appellant today appears in person as he did in the Magistrate's Court.

2.The background giving rise to his conviction was this, that he lived in a room in a boarding house as did the complainant in the case. There was a corridor off which small rooms lead and they all shared a common bathroom.

3.The prosecution's case below, based on the evidence of their 1st witness, was that in the morning she heard the noise of her shoes being disturbed. She had left those shoes outside her door in the corridor. She immediately opened the door to see the appellant in the corridor about to go into the bathroom to take a shower. She said that she asked him why he always bullied her. She claimed that this disturbance to her shoes had occurred on previous occasions. She told the Court that the appellant then picked up one of the slippers in the corridor and threw it at her and that it landed on her leg and caused a red mark.

4.She shared her room with another lady. That lady was called to give evidence. She said that at the time she was sitting on the bottom bunk in the room and the 1st witness had half opened the door. She said she did not see the appellant throw the slipper but she saw a slipper arrive and hit her room mate and fall to the ground.

5.The defendant gave evidence. He said that he went in for a shower and was in the bathroom when he heard the loud and agitated voice of a female in the corridor. Accordingly, fearing that something was up, such as a fire or something of that nature, he ceased to shower and went out to look into the corridor, and he found the 1st prosecution witness there making the noise.

6.His case was that having established there was no fire, and not knowing why she was making the noise, he went back in and continued to have the showering until he was disturbed by a police constable who had been summonsed there by the 1st prosecution witness.

7.From that brief summary of the facts, it will be apparent that the issues the Magistrate had to decide were ones of credibility - who was telling the truth. Of course, the appellant is quite entitled to come here today and rehearse the same arguments to me that he did before the Magistrate, seeking to persuade me to take a different view. However, the uphill task he faces is this, that the Magistrate was in a much better position to make the judgment on credibility because she saw and heard the witnesses. I can only judge on the full transcript that I have, read together with the Statement of Findings of the Magistrate. It is a much harder job for me to do. It really comes to this, that unless the appellant can demonstrate that there was something wrong in the judgment of the Magistrate, he will not persuade me to alter the Magistrate's ruling.

8.Let me turn to what he does advance. He has made his submissions today calmly, politely and reasonably before me. The first point he makes is that he says "there was no motive for me to act in the way that is alleged against me; we were strangers, there was just a woman upset in the corridor; I do not know why she has chosen to say this against me". In fact the Magistrate dealt with the question of motive in her Statement of Findings and she said this:

"One cannot criticize PW1 for believing that the Appellant was the one who had disturbed her shoes on this occasion, purely on the basis that he was the only person in the corridor when she opened the door just having heard the noise. I was satisfied that there was some irritation between the two of them, sufficient for an incident of this type to take place."

9.In my judgment, that finding made by the Magistrate is not open to any attack, she was entitled to come to that view and she gives in her Statement of Findings good reason for holding it.

10.The second point made by the appellant was that the shoe had not been dusted for fingerprints and thus there no evidence to connect him by fingerprints to the shoe. He said that in the police station, he volunteered to give his fingerprints so that this matter could be investigated.

11.Again, the Magistrate was aware of the point in question and she said that it did not affect her judgment, so it was a matter she took into account. Of course, it goes without saying that in cases of this nature, things are not sent off for fingerprinting. That is a fact of life.

12.The Respondent here today makes the good point that it is not every touching that does leave a fingerprint, and anyone who is familiar with fingerprinting knows that to be the case. It is right to point out that, of course, the absence of fingerprint evidence does not establish that the appellant's fingerprint was not in fact on the slipper in question. So again, I regret to say that I find there to be nothing in this point taken alone or with the other points the appellant makes, which would lead me to exercise my powers in his favour.

13.The third point he raised is that he wanted to call the inspector who had been in charge of the investigation and the Magistrate declined him an adjournment in order to do that.

14.In my judgment, the Magistrate was quite right to do that because the only reason the appellant wanted the inspector called was to establish that the slipper had not been tested for fingerprints and his fingerprint had not been found to be on it. That point was raised before the Magistrate fully and squarely, and he did not need the inspector for it. I have re-explained that to the appellant today, who reasonably I think, now accepts that was the position.

15.The fourth point he makes is this, that the evidence of the 2nd prosecution witness who saw the arrival of the shoe was "impossible". He did seek to say that the evidence below was that the door was only opened by a very narrow margin that he indicated with his hands some six inches or so. In fact we have the benefit of a full transcript of what took place in the Magistrate's Court, and having checked that, the evidence was that the door was half way open. That came from the 1st prosecution witness. The 2nd prosecution witness said that that lady, the first one, was standing in the doorway. Accordingly, given the fact that it was a small room leading off its doorway, I can see nothing impossible in the evidence that the 2nd prosecution witness gave that she saw the arrival of the slipper in question. She never purported to say that she saw anybody, this appellant or anyone else, throw it.

16.Accordingly, having dealt with those four points, I regret to say they do not persuade me to exercise my powers in the appellant's favour and the order I make today is one confirming the conviction entered below.

Representation:

Ms Jasmine Ching, GC of Department of Justice, for the HKSAR

The Appellant, HSU Shau-ru Tom, in person