HKSAR v. Cheng Lai Kwan

HCMA000792/1998

HCMA792/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 792 OF 1998

(On appeal from TMC 1939 of 1998)

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Coram: Deputy Judge Gill in Court

Date of hearing: 10 March 1999

Date of judgment: 10 March 1999

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J U D G M E N T

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1. On 3 August 1998, N Mitchell Esquire, magistrate, presided over a trial of two women, designated D1 and D2, who had pleaded not guilty to the charge of fighting in a public place. After the evidence, he found D2 not guilty and acquitted her.

2. Then for D1 he amended the charge to one of common assault of D2. D1, given the opportunity to adduce further evidence or have witnesses recalled, declined the need, whereupon the magistrate found her guilty and ordered that she be bound over to keep the peace for 12 months in the sum of $1,500.

3. She appeals that conviction on unspecified grounds and sentence because it was too severe.

4. The prosecution case relied principally on the evidence of a security guard, who said he observed the two women engaged in what he described as fighting for about 20 minutes. But asked to explain, he said it comprised the appellant kicking and hitting D2, whilst D2 just stood there. Then D2 fell to the ground and retaliated by throwing her slippers at the appellant.

5. Medical reports produced revealed superficial injuries suffered by both. There were cautioned statements in which each complained the other was the primary offender whilst she acted in self-defence. Each gave evidence to that effect.

6. In his reasons for verdict, the magistrate did not believe the appellant when she said she was acting in self-defence, finding that to be inconsistent with the account of the security guard, whom he did believe. He did not wholly believe D2 as to her account either, but was not satisfied that the prosecution had made out her actions were not in self-defence.

7. This all led to his acquitting D2, but convicting the appellant of the amended charge she now complains of.

8. Prior to finding the appellant guilty of common assault the magistrate had to resolve disputes of fact as to what happened, before making his own findings of fact. He had the advantage of hearing the evidence as it was given, and observing the witnesses as they gave it. He was at a material advantage to this, the appellate court, in this regard.

9. He chose to reject much of the evidence of those who were materially involved and to rely on that of the disinterested observer whom he found credible. He explained why he did so. An appellate court will be slow to interfere with findings of fact arrived at on this basis and will likely do so only if the court of first instance has mis-directed itself or otherwise arrived at conclusions which, on the evidence, it ought not to have.

10. In this case, I find no fault with the magistrate's findings and how he came to them.

11. The appeal is groundless, and the conviction is upheld.

12. I come to the sentence. The magistrate said he did not regard this as the most serious of cases, recognising that feelings were running high. On that basis, he imposed the bind-over. Far from finding the sentence too severe, I think, if anything, it was too lenient. The security guard whose evidence the magistrate relied on said it all lasted 20 minutes, and D2 was struck 10 times. This amounted to a sustained attack. Even though the appellant has stayed out of trouble for 10 years, she does have a record of previous offending of a similar nature, diminishing the mitigating factor of previous good character.

13. Her appeal against sentence is also dismissed.

Representation:

Mr David CHAN, Senior Government Counsel, for HKSAR

CHEUNG Wai-wah, Appellant, in Person