The Queen v. Tong Yuen

HCMA001026/1985

BETWEEN:

Coram: Roberts, C.J.

Date of judgment: 12th November, 1986.

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JUDGMENT

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1. The appellant was convicted by a magistrate of assault occasioning actual bodily harm and of resisting a police officer. He was sentenced to nine and six months' imprisonment, the sentences to run consecutively. He appeals both against his conviction and sentence.

2. It is to be noted that the appellant pleaded not guilty at his trial, that he was defended by counsel, and that he gave evidence in his own defence.

3. These charges arose out of a very brutal attack conducted by a group of young men in the early hours of the morning of 19th July, outside the Celebrity Billiards Association.

4. Mr. CHEUNG Ching-kit, who was the first prosecution witness ("P.W.1"), gave evidence that he was attacked by a number of men with clubs, chairs and weapons. He suffered injuries to his hand and head, with bruises on his face, eyes, ears and generally over the left side of his body, as a result of which he was in hospital for two days.

5. The victim identified the appellant as among those who attacked him, although he had not seen him before. He picked him out at an identification parade held a week later.

6. A police officer, who was the second prosecution witness ("P.W.2"), saw a number of men running away from the place where the attack on P. W.1 took place. One of them came towards him and P.W.2 warned him that he was a policeman and told him to stop. He identified this man as the appellant who, according to P.W.2, approached him, hit him in the stomach and pushed him to the ground, injuring his left hand. He was then arrested.

7. In addition to this evidence, there was produced by the prosecution a statement made by the appellant under caution, in which he admitted that he went with a friend of his to inflict revenge on the victim for an earlier attack which is said to have been made by P.W.1 on the appellant's friend.

8. The magistrate finds, quite rightly, that the cautioned statement is clear evidence of the appellant's complicity in the assault.

9. So far as the second charge was concerned, the cautioned statement also contains an admission that the appellant struggled with the police officer in order to avoid capture.

10. There is more than sufficient evidence to justify the magistrate's finding that guilt was establishes beyond reasonable doubt and the appeal against conviction is dismissed.

11. So far as sentence is concerned, I note that this was a brutal attack by a mob of youths. The appellant only admits having punched the victim a couple of times on the back. Nevertheless, the evidence establishes that he was a full participant in the assault on the victim.

12. The appellant, unfortunately, has a record of previous convictions. He is aged 28 and he has been convicted on three different occasions of eight offences, including attempted theft and robbery. Indeed, he had only been released from gaol about two months' before he committed this offence.

13. According to the magistrate, the appellant had already been to a detention centre and a training centre as well as to prison. I can see nothing wrong, in these circumstances, with the sentences which were imposed by the magistrate and the appeal against sentence, also, must fail.

Representation:

Appellant in person.

Mr. A.A. Bruce, Senior Crown Counsel, for Crown