HKSAR v. Yu Yee

HCMA 981/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 981 OF 2005

(ON APPEAL FROM KTCC 4458 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge Leong in Court

Date of Hearing : 8 March 2006

Date of Judgment : 8 March 2006

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J U D G M E N T

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1.The appellant was convicted after trial in the Magistrate’s Court of one charge of assault occasioning actual bodily harm.  He was fined $2,000.00 and ordered to pay $1,000.00 compensation.

2.The prosecution case was mainly based on the evidence of the victim, PW1.  He testified that on 1 June 2005, he went shopping in a supermarket.  He wanted to go to a narrow aisle to get his shopping.  The appellant was there carrying a rucksack on his back blocking his way.  As he went past the appellant, he touched the appellant’s rucksack.  The appellant turned round and scolded him in foul language.  PW1 told the appellant not to be so fierce and remonstrated with him.  The appellant then punched PW1’s left eye, his lower jaw as well as the left side of his chest with his fists.  As a result, PW1 fell and cried out for help.  He tried to fend off the appellant’s blows but he did not fight back.  The staff of the supermarket intervened and called the police.

3.The medical evidence revealed that PW1 suffered injuries to his left eye and right side of the mouth.

4.PW2, the police officer, who arrested the appellant said that he saw the appellant had a slight abrasion to his right forefinger and he also saw some red marks on the appellant which he did not know if they were injuries.

5.The appellant gave evidence that he went to the supermarket to shop and while he was selecting biscuits, he found someone standing behind him.  He turned round and saw PW1 staring at him in a hostile way.  He asked PW1 if he wanted to walk past.  PW1 then spoke rudely to him and poked his finger on the left side of his nose.  He asked PW1 to say sorry but PW1 punched him on the head and continued to punch him with both hands.  He tried to fend off the blows but not entirely successful.  He said that there were as many as 8 to 10 punches on his head.  He fought back in self-defence and hit the head of PW1.  PW1 then grabbed his neck and tried to hit the lower part of his body.

6.It is not disputed that the appellant was found on 1 June 2005 to have tenderness on the chest, left wrist and scalp, bruising on the right dorsum and redness on anterior chest.

7.The magistrate in his statement of findings said that he did not find the appellant’s evidence credible and he had no hesitation in rejecting the appellant’s evidence.  He rejected the appellant’s defence of self-defence.

8.The magistrate found that PW1 was assaulted by the appellant in the manner described by PW1 and the appellant was not acting in self-defence.  He found the injuries revealed by the medical report and the red marks seen by PW2 were consistent with the appellant hitting PW1 when PW1 was defending himself.  On that basis, the magistrate convicted the appellant.

9.The grounds of appeal are:

(1)	The magistrate erred in finding the charge proved when there was material and significant discrepancies in the evidence which caused doubt.
(2)	In particular, the magistrate erred in finding that the appellant’s injuries were attributed to the appellant hitting PW1 and when PW1 was defending himself.
(3)	In the circumstances, the conviction is unsafe and unsatisfactory.

10.Counsel for the appellant submits that the evidence of PW1 that he did not hit the appellant and he only put up his hands in front of his face to fend off the appellant’s blows is inconsistent with the medical evidence and the evidence of PW2 that there were red marks found on the appellant. Having regard to these discrepancies in the prosecution evidence, it was wrong for the magistrate to find that the injuries on the appellant was caused by the appellant hitting PW1 and PW1 warding off the blows.

11.Counsel for the respondent in the written submission submits that the magistrate in reaching his decision to convict the appellant had already taken into account the submission of the lawyer who had represented the appellant at the trial.  The magistrate noted that the evidence of PW2 on the red marks on the appellant was merely PW2’s opinion.  The magistrate was satisfied that there was no material or significant discrepancy in the prosecution case.

12.It should be noted that at the trial, PW1 had demonstrated how he fended off the appellant’s blows (putting both his hands up in front of his face) and what the appellant did to him especially how the appellant hit him at his jaw.  He denied that he had used his fist to punch the appellant.  He said that he fell to the ground and kept fending off the blows of the appellant.

13.The magistrate, having seen the demonstration by PW1 on how he defended himself and how the appellant attacked him and having regard to PW1’s evidence that he kept fending off the appellant’s blows, was entitled to conclude that the red marks seen on the appellant were consistent with the prosecution case that the appellant assaulted PW1 in the manner he described.  There was no material discrepancy in the evidence which might cast doubt on the conclusion of the magistrate.

14.The conviction is not unsafe or unsatisfactory.  The appeal is dismissed.

Mr Jonathan Kwan, instructed by Messrs Pansy Leung, Tang & Chua, for the Appellant

Mr Steward Hau, SGC of the Department of Justice, for the Respondent