HKSAR v. Cheung Kwok Ting

HCMA000546/2003

HCMA546/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.546 OF 2003

(ON APPEAL FROM KCCC 4443 OF 2003)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 2 July 2003

Date of Judgment: 2 July 2003

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J U D G M E N T

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1.This is an appeal against conviction and sentence. The 71-year-old appellant was convicted after trial of an offence of assault occasioning actual bodily harm that involved a blow struck by him to the forehead of the female victim (PW1) at the end of an argument between them. He was fined $4,000.

2.The facts of the case as found by the magistrate were that both the appellant and the victim were newspaper vendors who had, many years ago, worked together on the business of the newspaper vendors' union which represented newspaper vendors in Hong Kong. The appellant had been the chairman at that time and the victim his secretary. Initially their relationship had been amicable but had eventually turned sour.

3.In recent years, they had apparently a series of arguments arising out of their earlier working relationship. On the occasion of the present incident, there had been another such argument when they had met while collecting their newspapers from a distributor on a public street.

4.Following that argument, the victim had commenced to leave when the appellant came up to her and struck a blow to her forehead with what she believed may have been one of the crutches he used following an accident some few years ago in which he lost his lower left leg.

5.The magistrate in arriving at these facts had rejected the appellant's evidence and accepted that of the victim's.

6.The appellant's case had accepted as common ground that there had been an argument between the appellant and the victim but was that he had struck the victim in self-defence after she had commenced to hit him or that he had done so while attempting to ward off the victim's blows.

7.As the magistrate says in arriving at his decision, the case was basically the appellant's version of events as given in his evidence against the victim's (PW1's) as given in hers. The magistrate made this assessment of the appellant's evidence :

" The Defendant gave evidence, when assessing his evidence, I took into account of what he told the police upon arrest, which was consistent with what he told me at the trial. I found that he did not tell me the truth, his evidence was unreasonable and unbelievable; for example, if he had been attacked by PW1 as alleged, causing him bleeding on his foot, they [he] would have told the police and sought medical treatment. I rejected his evidence on the part which had been challenged by the prosecution."

8.The magistrate then proceeded to carefully evaluate the evidence of PW1 :

" When I assessed PW1's evidence, I took into account that they both had grudges to each other for years and this incident was rising out from a dispute on the same issue. I took into account of the possible conflict of interest and the possible danger involved.

I found that PW1 was an honest and truthful witness. I was satisfied that she told me what she experienced without mistake, misunderstanding or exaggeration. Her evidence was reasonable; she was a fair witness. She was unshaken under cross-examination. (.....) I accepted her evidence and placed full weight on it."

9.The appellant before me today argues that the magistrate did not properly take into account that he is a person restricted to crutches and accordingly would have been unlikely to be able to approach the victim after their argument and strike her. He says also that if he had struck her with his crutches, her injury would have been worse. As it was the victim's forehead was, according to the medical evidence, only bruised. I do not think there is any merit in the appellant's criticisms of the magistrate's reasoning. The appellant's disability does not apparently prevent him from working as a newspaper vendor. He is not immobile. Nor would the nature of the object he struck the victim with necessarily determine the extent of her injury. That would primarily depend upon how hard the victim was struck.

10.In my view, the magistrate's findings were proper and are not in any way undermined by the appellant's criticisms. The magistrate is in the best position to assess the credibility of witnesses. That said, where as in the present case, as the magistrate remarked, it is a one against one situation, it is incumbent upon the magistrate to be aware of the dangers of accepting the prosecution witnesses unsupported evidence and of rejecting the defendant's evidence. In the present case, the magistrate was well aware of that. Accordingly the appeal against conviction is dismissed.

11.That leaves the appeal against sentence.

12.The appellant was fined $4,000. That is a relatively low fine and no doubt reflected the magistrate's appreciation of the fact that the assault was far from the most serious kind. Nevertheless in arriving at that figure, the magistrate allowed the appellant nothing in mitigation of that amount. He said in that regard :

"... I was of the view that a financial penalty of $4000 was [an] appropriate starting point. I could not see there were any grounds that justified for any discount."

13.The appellant has recently taken up his duties as a chairman of the newspaper vendors' union again. He is unpaid for those duties. That reflects well upon him. Further, in my view, the appellant's age and some difficulties in earning his income given his disability are perhaps matters, particularly taken in conjunction, which would allow a reduction in that sum. Accordingly, I set aside the amount of the fine and impose a fine of $2,000.

Representation:

Mr H. Melwaney, SGC of the Department of Justice, for the Respondent/HKSAR

The Appellant in person