HKSAR v. Cheung Kam Wah

HCMA001120/2000

HCMA 1120/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1120 OF 2000

(ON APPEAL FROM NKCC 4592/2000)

____________

____________

Coram: Hon Beeson J in Court

Date of Hearing: 21 November 2000

Date of Judgment: 21 November 2000

_______________

J U D G M E N T

_______________

1. The Appellant appeals against his conviction on a charge of Wounding under section 19 of the Offences Against the Person Ordinance, Cap.212. He also appeals against a six months Hospital Order made under section 45(1) of the Mental Health Ordinance, Cap.136. The Appellant was not represented at his trial, having declined legal representation and he appeared on his own behalf on this appeal.

2. The Appellant was the erstwhile tenant of the victim of the charge. On the day of the offence, the victim was attacked without warning by the Appellant who was holding at the time a 7-foot long piece of angle-iron. The Appellant at trial admitted that he had intended to hit the victim with the bar. As the result of a struggle the victim sustained a wound to his forehead which needed suturing.

3. The matters that the Magistrate correctly decided were in dispute were whether the Appellant had actually struck the victim on the forehead, the nature of the struggle itself and whether or not, as Appellant put it, the victim had invaded the Appellant's mind.

4. The Magistrate having examined the matters in contention found that the Prosecution evidence ruled out self-defence which had been suggested by the Appellant and considered the attack had taken place as the victim had stated. The Appellant, who gave evidence, described in some detail his thought processes relating to the incident and the Magistrate divined from this that the Appellant was delusional on various matters. The Magistrate found the attack had taken place as the victim said and specifically that the Appellant had not been acting in self-defence. He found that the attack was both malicious and unlawful and convicted the Appellant.

5. On appeal the Appellant repeated some of what he said before the Magistrate. He said that he kicked the victim once in self-defence as, if he had not done so, he himself would have lost his life. According to him, the victim fell and bumped himself on the ground which caused his nose to bleed. The Appellant said the reason for his kick was that the victim owed him fifty dollars. That sum related to an alleged over-payment of the rental charge for the room he rented from the victim.

6. I am satisfied that the Magistrate treated this case correctly and that he was justified in convicting the Appellant on the evidence before him. In considering the sentence, the Magistrate had before him two psychiatric reports; each of those psychiatrists confirmed that the Appellant was delusional. They concluded that he was suffering from paranoid schizophrenia and had a high propensity for violence. Each recommended a six months Hospital Order in Siu Lam Psychiatric Centre. Clearly given the circumstances of the case and the Appellant's condition as these psychiatrists found it, that was an entirely proper sentence.

7. This appeal against conviction and appeal against sentence are dismissed.

Representation:

Miss Vinci Lam, GC for DPP

Cheung Kam Wah, Appellant in person