HKSAR v. Leung Mei Kuen

HCMA 87/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 87 OF 2006

(ON APPEAL FROM FLCC 2470/2005)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 28 April 2006

Date of Judgment: 28 April 2006  

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J U D G M E N T

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1.This Appellant was convicted after trial of Common Assault and sentenced to a Community Service Order of 10 hours duration.  The Appellant appeals against conviction only.  She filed standard grounds of appeal, and in court, where she appeared in person, made three points where she said the Magistrate was in error and/or had not dealt properly with the matter. 

Prosecution Case

2.The evidence was that an 8-year boy (PW1) was at the Play Station 2 near a toy shop, playing a video game which involved physical activity.  The Appellant’s 3-year old son approached him.  PW1 tried to avoid kicking or punching him during his game. 

3.PW2, the mother of PW1, noticed the Appellant’s son standing next to PW1 and asked him to move away several times.  She realised he might have a hearing problem so squatted down and asked him to go back to the queue, moving him away.  She enquired where his mother was.  The Appellant appeared and on the prosecution case an argument started.

4.PW2 broke off the argument to attend to her baby who was in a pram nearby.  Whilst away, she heard her son cry out that the Appellant hit him on his head.  A report was made to the police.

5.The incident was seen by a passer-by (PW3), who was making deliveries.  He said that he saw the Appellant shout at PW1 and hit PW1 on the back of his head about three to four times.  He saw this at a distance of about 6-7 feet.

Defence Case

6.The Appellant gave evidence that PW1 was told by his mother to push her son away and if he did not leave, to hit him.  The Appellant claimed she saw PW1 hit her son.  When she went to separate them, PW2 started to scold her and told her to go back to the Mainland.  At that point the Appellant’s husband joined in the argument.  After a while PW2 left with PW1.

7.Some 10 minutes later, allegedly, PW2 returned with PW1 and falsely accused the Appellant of hitting PW1.  The Appellant denied doing so.  The Appellant’s husband, who also gave evidence, claimed he heard PW2 telling PW1 to push his son away and hit him.  He saw PW1 push his son away.  He did not notice PW2 shouting at the Appellant, nor did he see the Appellant hit PW1.

8.The Appellant made three points.

(1) There were discrepancies between the account PW1 gave in court and the statement he gave to the police.  The Appellant claimed an episode was missing from the statement, i.e. she was alleged to have hit PW2’s infant in the pram.  According to the Appellant, the episode is not in the statement, but appeared in the evidence given by PW1 in court.  I considered the details of the file but cannot find this referred to.  It was never part of the prosecution case that she hit PW1’s baby.

(2) Appellant complained that the independent witness, PW3’s credibility was in doubt as his evidence differed in all aspects from PW1’s.  This was particularly so as to the number of times the boy had been hit.  PW1 said he had been hit once.  PW3 said he had been hit 4-5 times.  The Appellant said she doubted the purity of PW3’s motive for giving evidence.  She suggested this because PW3 had applied for witness expenses after the conclusion of his evidence.  I note that the Magistrate relied quite heavily on the evidence given by PW3, he being the only independent witness.

(3) This point related to the medical report produced in court for PW1; the boy had no superficial injury, but he complained of pain to the right side of his head.  In court he had indicated that he had been hit on the left side of the head.  The Appellant complained the Magistrate had not come up with any reasonable explanation for the discrepancy, except to say perhaps when PW1 was hit on the left side of the head he also felt pain over his head on the right side.  The Appellant’s submission was that this should be commented on by a doctor, not by the Magistrate.

9.Having considered how this aspect was dealt with by the Magistrate, I am satisfied she was only making a general comment about this evidence.  The offence of common assault does not require proof of injury.  Complaint was also made about the boy’s memory of the incident.  It was suggested that his memory at trial was better than his memory when he gave a statement to the police one month after the incident.  PW1 could not recall things immediately after the incident, yet could remember them 5 months later in court.

10.The Appellant contended that the boy’s oral evidence was almost the same as his mother’s, the implication was that his mother coached him.  Finally the Appellant complained that the Magistrate did not consider that she had only protected her son and herself out of self defence.  She said she did not hit PW1 but simply pulled him away to prevent him hitting her son.

11.As a final comment on PW3’s credibility, the Appellant said he was mistaken in his statement because he did not see them too clearly.

12.In her Statement of Findings, the Magistrate traversed the evidence and all the matters raised by the Appellant.  Obviously she relied on the independent witness (PW3); she was entitled to do that.  Quite clearly she did not believe the Appellant or her husband.  This case depended on the credibility of the witnesses; that assessment was a matter for the Magistrate.  I cannot see any indication she did not carry out her task properly.  Accordingly, the appeal against conviction is dismissed.

Miss SIN Mary, SGC, of Department of Justice for the Respondent

LEUNG Mei-kuen, Appellant, in person