HKSAR v. Chan Man Hing

HCMA000098/2004

HCMA98/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.98 OF 2004

(ON APPEAL FROM FLCC 3030 OF 2003)

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

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

Coram: Hon Gall J in Court

Date of Hearing: 17 June 2004

Date of Judgment: 17 June 2004

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

J U D G M E N T

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

1.The appellant was convicted on 22 December 2003 of one charge of common assault and was sentenced on the same day to a fine of $1,000. He now seeks to appeal the conviction.

2.The facts alleged by the prosecution were that on 12 August 2003, the appellant and others were employed by the Leisure and Cultural Services Department. On that day, they were involved in the felling of a tree at Tai Po Road and police were present to make sure for the safety of those other than the Cultural Services Department employees. The tree had been fallen and had been cut without the assistance of the appellant or the victim. As the victim moved forward toward the area of the cut logs to assist in cleaning up the area, it was his evidence that the appellant stepped on his left foot with his right foot, lifted up his right elbow and hit him on the chest with some force. He said he warned the appellant but about a minute later the appellant came over again and again stood on his left foot and again attempted to elbow him with his right elbow but the victim stepped back and avoided the blow.

3.The victim reported the matter to a police officer at the scene having spoken to his superior, and the police officer observed a shoe mark on his left shoe and saw redness on his chest. The victim went to hospital on the same day and was examined and was found to have multiple contusions with erythema over his central chest and the dorsum of his left foot.

4.The police officer gave evidence of what he had been told by the victim about the incident at the scene. That version albeit hearsay varied from that given in court by the victim inasmuch as in the account reported by the police officer he said that he approached towards the appellant before he was stepped on on the first instance. The police officer did not report him as having said that he was struck prior to telling the appellant not to do anything recklessly. The policeman's account was then that the appellant stepped on the victim again and hit his right chest with his left elbow. There was no reference in the police officer's evidence that he avoided that blow. These inconsistencies were denied by the victim who maintained his account.

5.Mr Cheung, for the appellant, first of all argues that these discrepancies were such that they ought to have been sufficient for the magistrate to have a view of the credit of the victim that would lead him not to accept his version of events so as to be sure of the guilt of the appellant.

6.The magistrate was fully aware of the discrepancies and aware that there was evidence given by the officer in court, some four months after the event and given without reference by the officer to any notebook or statement. He considered the discrepancies in this manner :

"I considered these issues were minor discrepancy in PW1's evidence as to whether the defendant approached him in respect of the first incident of assault. However, such inconsistencies are to be expected in the course of recollection of any incident. PW1's account was fundamentally consistent as to that his left foot was stepped on twice and that he was elbowed in the chest by the defendant."

The magistrate having been alive to the issue and having given it consideration, it is not for me to place myself in his position and to re-assess the evidence.

7.Mr Cheung further argued that the magistrate erred in law in construing both the medical report and the police observation of the shoe print as being capable of lending independent support to the account of PW1. With this, I cannot agree. The two pieces of evidence come from independent source - the observation of the policeman and the observation of the medical officer. Each of them goes to a material piece of evidence. The appellant having denied that he stepped on the foot of the victim and having denied that he struck him on the chest. The issue of whether blows were occasioned to the chest and the foot were material to the proof of the charge. The evidence of the police officer that a print of a foot on the top of the shoe of the victim is independent support of the evidence of the victim that his foot was stood upon. Similarly, the contusions to the chest of the victim and to the upper part of his foot are also independent support that the chest was struck and that a weight was placed upon the upper part of the foot.

8.The third ground of appeal that the magistrate failed to place sufficient heed to the fact that PW1 might have had his own purposes to serve inasmuch as there had been hostility between he and the appellant is not a matter which gives me concern. The magistrate said this :

"... It was said there was bad feeling between the defendant and PW1. PW1 did say that there was bad feeling in relation to complaints by him about the defendants work performance. ..."

The magistrate was aware of the animosity and it was not incumbent upon him to spell out the care that he must have taken with the evidence given that revelation.

9.Mr Cheung further argued that the injuries to the chest and the foot might have been occasioned by the work of the victim. However a reading of the evidence indicates that prior to the time when he alleged the attack took place, he had not performed any manual work at the scene, it having been done by others.

10.There is nothing in any of these grounds of appeal and the appeal against conviction is dismissed.

Representation:

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

Mr Jeremy Cheung, instructed by Messrs Hampton, Winter & Glynn, for the Appellant