HKSAR v. Tsang Kin on

HCMA001313/2000

HCMA1313/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1313 OF 2000

(ON APPEAL FROM TWCC 2381 OF 2000)

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

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

Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 31 January 2001

Date of Judgment: 31 January 2001

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

J U D G M E N T

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

1. This is an appeal against conviction and sentence. The appellant was convicted after trial of an offence of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap.212. He was sentenced to nine months' imprisonment.

2. The facts of the case as put before the learned magistrate and as accepted by him were that the appellant and the victim lived in neighboring cubicles at the same address.

3. On the charged date at that address the appellant had accused the victim of playing some sort of trick upon him. Both of them went to the rooftop of their building to discuss the matter. As the victim was leaving the rooftop the appellant had attacked him, striking him with his fists, and kicking him at least once, causing various injuries to his head, including gashes to his eyebrows which subsequently required suturing.

4. I will deal firstly with the appeal against conviction.

5. At trial the only real issue was whether the victim's injuries were or may have been inflicted upon the victim as the appellant tried to defend himself from an attack launched by the victim. In other words, the substantive issue confronting the magistrate was the defence of self-defence. The only substantive ground of appeal against conviction relied upon by the appellant before me is that the magistrate accepted the evidence of the victim wrongly, and wrongly rejected the case of the appellant as put to the victim in cross-examination.

6. At trial the appellant, who was unrepresented, did not give evidence but conducted his case by way of cross-examination of the prosecution witnesses. That case, as put, was denied by the victim.

7. It is true that the only direct evidence against the appellant at trial came from the victim. The learned magistrate was quite aware of this and reminded himself of the danger involved in this particular case in relying upon the evidence of one witness alone.

8. Further, the magistrate dealt carefully in his findings with the appellant's case as put in cross-examination of the victim. At the end of the day, he accepted the victim as a witness of truth. He considered him to be an honest and reliable witness, doing his best to assist with an accurate account of the incident, and believed him. He was entitled to do so. No sensible reason has been advanced before me today which suggests that finding of the magistrate was unsafe or in any way unsatisfactory.

9. Accordingly, the appeal against conviction is dismissed.

10. I now deal with the appeal against sentence. The learned magistrate, in taking a starting point of sentence of nine months' imprisonment, took into account that the 50-year-old victim was physically no match for the appellant. The magistrate described the victim as being "malnourished, slightly built and generally weak". The appellant was aged 37 years at the time of the assault and was described by the magistrate as being of "wiry but strong build", and I might add from my own observations that the appellant is a relatively big person.

11. The magistrate took into account the severity of the injury suffered by the victim which included the separate lacerations above each eyebrow, which each required two to three stitches.

12. In his evidence, the victim had said that he had been rendered unconscious as a result of the appellant's attack, and had been hospitalized, albeit no doubt briefly and for the primary purpose of suturing his wounds. The victim said he had been attacked with punches and kicks as he turned to leave the presence of the appellant.

13. Whilst no weapon was used, this was a case of a serious physical assault by a physically superior person involving fists and at least one kick. The starting point adopted by the magistrate was, while perhaps on the high side, nevertheless proper for an offence of this type and severity.

14. Nothing of any substance was advanced in mitigation. The appellant has had a long history of offences of serious violence, and no reduction could be given for good character. Accordingly, the starting point of sentence was not reduced.

15. In the end result, the sentence of nine months' imprisonment could not be said to be too severe. It was a proper reflection of the severity of the assault.

16. The appeal against sentences is dismissed.

Representation:

Mr. Vincent Wong, SGC of the Department of Justice, for the Respondent

Appellant in person