HKSAR v. Gurung Lil Bahadur

HCMA 302/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 302 OF 2006

(ON APPEAL FROM KCCC NO. 954 OF 2006)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 4 May 2006

Date of Judgment: 4 May 2006

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J U D G M E N T

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1.The Appellant was tried in the Magistrate’s Court for one count of assault occasioning actual bodily harm.  He was convicted after trial and sentenced to 9 months’ imprisonment.  He appeals against both the conviction and sentence.

2.The evidence show that PW1, Mr Lam, is aged 70 and he was on a public light bus at around 3:30 am, on the date of the offence.  He was sitting near the passenger door.  He saw 3 persons including the Appellant in this case rush onto the bus.  PW1 said he told the driver in Cantonese that perhaps he (the driver) should consider whether to take them on because there 3 were perhaps drunk and that if they boarded the bus, the driver may have had a hard time cleaning it.  PW1 said that, at that stage, the Appellant swore at him in Cantonese and punched him on his hands and chest.  PW1 said the punch caused his left hand to bleed and the finger of his right hand too and he experienced pain in his chest.  He said that one of the Appellant’s friends was very drunk at the time and the other person was helping the drunk man.  PW1 said that after the assault he telephoned the police and subsequently after the police arrived, the Appellant was arrested.  And PW1 said he was sent to hospital for treatment.

3.PW2 was the police officer who arrived at the scene.  He gave evidence that he saw PW1 was bleeding on the back of his left hand and that there was a half-inch long abrasion on the thumb of the right hand of PW1.  PW1 complained to him that his chest was painful and subsequently after investigation he arrested the Appellant.  PW2 gave evidence about what the driver of the public light bus and the passenger said about the Appellant, in the presence of the Appellant, that he had assaulted PW1 but these persons were not called as witnesses.  PW2 also said that the Appellant was uncooperative at the time and had made a lot of noise and was swinging his arms and he had to be subdued with the assistance of the other officers.

4.The Appellant elected to give evidence and he said that he was with his two brothers about to board the public light bus but the driver did not allow them to get on.  The Appellant said he started an argument with the driver and PW1 shouted at him and so the Appellant said he basically told PW1 to mind his own business.  At that stage, he said PW1 pulled his T-shirt and tore it and another passenger came and separated them.  PW1 then went to the back of the PLB and then the police came.  The Appellant also called as his witness, his younger brother, who was with him that night and the Appellant’s brother said that when they were about to board the public light bus, the driver did not allow them to get on because his other brother was drunk.  He said the Appellant was very angry at the time and started to argue with the driver and an old man, presumably referring to PW1, shouted at the Appellant who then shouted back and at that stage he said he saw the old man pull the Appellant by the chest and tore his T-shirt and then a passenger came to separate them.  And he said he did not see the Appellant hit the old man.

5.The learned Magistrate after considering all the evidence, found that the prosecution witnesses were truthful and reliable witnesses and he did not believe the defence witnesses.

6.The learned Magistrate noted that there was no medical evidence offered by the prosecution, but he was satisfied that from the evidence of the victim and the police officer that there was bleeding on the victim’s hands and that amounted to actual bodily harm.  Having considered that PW1 was an old man of 70 years old, that meant that the Appellant was stronger, so the learned Magistrate found that it was difficult to imagine how PW1 would have received his injury according to the version put forward by the Appellant.

7.At the end of that day, the learned Magistrate convicted the Appellant and sentenced the Appellant to 9 months’ imprisonment, the reason being that the learned Magistrate observed that the force was totally unreasonable and that the court has to protect elderly people as they are vulnerable victim to violence and that therefore a deterrent sentence should be given.

8.The Appellant was unrepresented in the court below.  On appeal, Mr Donald who appeared on his behalf submitted that there was no sufficient evidence of bodily harm.  To convict the Appellant, Mr Donald’s argument was that it was not sufficient for the learned Magistrate to rely on the evidence of PW1 and PW2 to conclude that there was actual bodily harm.  Although he accepted that medical evidence was not necessary, he said that the prosecution had offered insufficient evidence to prove beyond a reasonable doubt that there was actual bodily harm.

9.It is clear that actual bodily harm means “any hurt or injury calculated to interfere with the health or comfort” of the victim and that such hurt or injury “need not be permanent, but must, no doubt, be more than merely transient and trifling”.

10.The facts, as I have said, found by the learned Magistrate was that the hands of the victim was bleeding and was seen to be bleeding when the police officer arrived at the scene.  So, despite the lack of medical evidence in this case, it is clear that on that occasion the victim’s hand was injured in a way that caused the breaking of his skin and thus bleeding ensued from his hand.  So I am not persuaded that the prosecution had failed in anyway to prove beyond the reasonable doubt that there was actual bodily harm.  I consider that there was sufficient evidence in this case to prove the offence and that therefore the conviction was not unsafe nor unsatisfactory and the appeal against conviction is dismissed.  Mr Donald also on behalf of the Appellant appeals against the sentence.

11.It is clear that the facts as described did show that the Appellant must have lost his temper.  There was no premeditation and it arose at the early hours of the morning when the Appellant was trying to help his drunken brother home.  No evidence was given about whether the Appellant had imbibed any alcohol but it would appear that certainly the Appellant was anxious to board the public light bus with his brother and take him home.

12.It is unfortunate that the Appellant represented himself in the court below in that his state of mind at the time was not sufficiently set out before the learned Magistrate.  It would appear to me on reading the facts that it was a spur of the moment assault and that the victim did by his words appear to have provoked the matter and in the state that the Appellant and his brother were in coupled with the anxiety of getting his drunken brother home, the Appellant was more likely than not provoked by the words of the victim in this case.

13.The learned Magistrate did not appear to have dealt with this issue of loss of temper and the provocative words of the victim in coming to the sentence.  It is clear however that there is no guideline for offences of this nature and each case has to turn on its own facts.

14.I note that the Appellant had one previous conviction of theft in 2005, for which he was fined.  So, he has no previous conviction of violence.  It is true as Ms Ng pointed out that there does not appear to be any remorse from the Appellant and of course as the learned Magistrate pointed out the victim is a 70 year old man.

15.Taking everything into consideration, considering how the violence arose, I do consider that 9 months’ imprisonment is manifestly excessive in the circumstances.  There does not seem to be any grave injury suffered by the victim.  It is clear that the prosecution did not feel that it was anything so serious that they would need to offer a medical report or medical evidence at the trial and they only relied on the external injury seen by PW1 and PW2.

16.So, in this case, I consider that an appropriate sentence having taken into account the fact of lack of remorse and the fact that the victim was 70 years old and the necessity to protect the elderly people in our society and weighing into the balance the fact that this is the first offence of violence committed by the Appellant and the circumstances that gave rise to the offence, I consider that an appropriate sentence in this case should be one of three months’ imprisonment.  So, the appeal against sentence is allowed, the original sentence set aside and I sentence the Appellant to 3 months’ imprisonment.

Ms Laura NG, Government Counsel, for the Respondent

Mr Richad DONALD, instructed by Messrs Jal N. Karbhari & Co., for the Appellant