HKSAR v. Ng Kam Ming

HCMA932/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 932 OF 2004

(ON APPEAL FROM KTCC1576 OF 2004)

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BETWEEN

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Before : Hon Burrell J in Court

Date of Hearing : 24 November 2004

Date of Judgment : 24 November 2004

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J U D G M E N T

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1.The appellant was convicted of an offence of assault occasioning actual bodily harm.  He was fined $1,500 and ordered to pay compensation of $1,500.  The trial was heard before a permanent magistrate Mr Stephen Smout sitting at the Kwun Tong Magistracy.  The appellant appeals both his conviction and sentence. 

2.The offence arose out of a minor dispute between two people living in separate units within the same flat.  The argument between the defendant and the victim was prompted because of noise made by the victim at about midnight on 11 February 2004.  At first, the argument was purely verbal but in the course of the shouting, it is alleged by the prosecution that the appellant kicked out at the victim’s left shin causing a minor injury. 

3.The learned magistrate in his full and helpful statement of findings has set out all material facts and issues.  He also correctly identified the legal principles relevant to this particular case.  His decision depended on findings of fact.  He had had the advantage of seeing and hearing both the two witnesses for the prosecution, who are the victim and his mother, and also the defendant who had elected to give evidence.  The mother had been present at the material time and had witnessed the injury which her son had sustained to his knee. 

4.On appeal before this court, the appellant has reiterated his defence that he did not kick the victim, the same defence that was not believed and rejected by the learned magistrate.  In rejecting the appellant’s defence, the learned magistrate made particular note of the fact that the appellant had, in the course of the argument, gone to his premises and armed himself with a chopper and returned to the scene of the argument. 

5.The learned magistrate rejected the appellant’s explanation for this namely, that he armed himself in this way in case he needed to defend himself.  On the contrary, the learned magistrate concluded that at the material time, the appellant was the aggressor. 

6.The learned magistrate also dealt with the point that the appellant and victim had been standing at slightly different levels when the kick was inflicted.  He rejected the suggestion which has been specifically repeated at this appeal hearing that it would have been impossible to inflict such a kick in such circumstances.  In short, the learned magistrate gave proper reasons for accepting PW1’s evidence and rejecting the defendant’s.  Those reasons resulted in findings of fact which were consistent with his decision to convict.  I find there are no grounds for this court to interfere with the learned magistrate’s findings of fact or his decision to convict on those findings. 

7.The appeal against conviction is dismissed.  The appeal against sentence is also dismissed.  A fine was not wrong in principle and the level of fine and the level of compensation ordered was not excessive.  The learned magistrate had made proper enquiries about the defendant and his means before deciding on the appropriate sentence.

Mr Gavin Shiu, SADPP of the Department of Justice, for the Respondent

The Appellant, in person