HKSAR v. Yeung Ka Fan

HCMA000062/2004

HCMA62/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 62 OF 2004

(ON APPEAL FROM ESCC 2828 OF 2003)

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Coram : Hon Jackson J in Court

Date of Hearing : 11 February 2004

Date of Judgment : 11 February 2004

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J U D G M E N T

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1.On 22 October 2003 the appellant was convicted after trial at Eastern Magistrates Court of an offence of claiming to be a member of a triad society (contrary to section 20(2) of Chapter 151) and of an offence of assault occasioning actual bodily harm (contrary to section 39 of Chapter 212). He was sentenced to a term of six months' imprisonment in respect of each offence those sentences to be served concurrently.

2.The appellant appeals against both conviction and sentence suggesting that he is not guilty of the offences and that his sentence was too severe.

3.In his introduction to his Statement of Findings the magistrate helpfully says (inter alia) this :

"The appellant came before me at Eastern Magistracy on 22nd October 2003 for trial on one charge of claiming to be a member of a triad society and one of assault occasioning actual bodily harm.

...

The prosecution case, put shortly, was that the appellant had attended upon PW1, a prostitute, for sexual services. He paid and received sexual services but when PW1 ceased providing the service beyond the allotted time, the appellant assaulted her causing injury to her and in the course of that made reference to 'I am 14.'

The defence case, put shortly, was that while the appellant was using the toilet in PW1's premises he saw her stealing property from his clothing. He had not assaulted PW1 as she claimed and had not used the triad expression she attributed to him in her evidence. In fact he had been assaulted by her.

The prosecution called two witnesses, PW1 and a police officer who dealt with and interviewed the appellant after the incident. The evidence of admissions said to have been made by the appellant was challenged and that issue was dealt with by way of the alternative procedure.

The appellant gave evidence on both the special and general issues.

In the result I disbelieved the appellant. I did believe the evidence of PW1 and PW2. Being satisfied the prosecution had proven all elements of both charges I convicted the appellant accordingly. ...

In deciding to convict the appellant I had regard to all the evidence and the submissions. ... "

4.Inter alia, what the magistrate had to say about sentence was this :

"The appellant had a number of previous convictions. I called for Background and D.A.T.C. reports on him. I considered all that was said in the reports and on his behalf by counsel. In my view there were no matters of mitigation presented such as to merit any reduction in sentence. The appellant was found not to be drug dependant. The offending called for imprisonment and there was nothing in the appellant's circumstances indicating that sentence would be inappropriate.

.. The appellant had beaten and injured PW1 while she was alone in her premises in vulnerable circumstances. He had also threatened her with his triad membership claim. In my view the appropriate starting point for each charge was six months imprisonment. I made no deduction from those starting points and imposed those sentences. However I did regard the offending as having been part and parcel of the one 'transaction'. Accordingly I made the sentences concurrent."

5.Before me the appellant has said nothing to suggest that the magistrate fell into error either by conviction or sentence. All that the appellant has sought to do is to repeat what he said at his trial.

6.The appeal is accordingly dismissed.

Representation:

Mr P.K. Madigan, SGC of the Department of Justice, for the Respondent

Appellant in person