HKSAR v. Chan Yuen Sau

HCMA 1252/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1252 OF 2005

(ON APPEAL FROM FLCC 1746/2005)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 10 March and 30 June 2006

Date of Judgment: 30 June 2006

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J U D G M E N T

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1.The Appellant CHAN Yuen-sau and her son LEE Sai-chung were separately charged with an offence of Assault Occasioning Actual Bodily Harm” and “Common Assault” before a magistrate.  At the end of the trial the learned magistrate acquitted LEE and found the Appellant guilty of the lesser charge of “Common Assault”. The Appellant was sentenced to be bound over in the sum of $500 for 12 months to be of good behaviour. She appeals against both the conviction and the sentence.

The Prosecution case

2.The prosecution case was that Mr. KOK Sheung-kuen (PW1) was employed by a bus company as the manager at the Lok Ma Chau Terminus. The Appellant and her son LEE brought luggage exceeding the limit onto the bus. PW1 and LEE engaged in an argument in which foul language was exchanged. The Appellant accused PW1 of using foul language against her and said to PW1 that she would kick him. LEE pushed PW1 and then the Appellant kicked PW1.

3.The prosecution called other employees of the bus company present, i.e. LAW Siu-ping (PW2) and LAW Sau-ching (PW3) to give evidence. Both witnesses related how LEE pushed PW1 and then the Appellant kicked PW1.

4.There were some discrepancies as to how many times PW1 was kicked by the Appellant. PW1 said 3-4 times at first but later agreed he could not remember. PW2 said the Appellant kicked PW1 once. PW3 said the Appellant kicked PW1 more than once but not sure of the number.

5.PW1 said the Appellant did not accuse him of having indecently assaulted her. PW3’s testimony was along the same line as PW1. However, PW2 said she did hear the Appellant say to PW1: “if you continue to be like this, I would accuse you of indecent assault”.  PW2 did not see any indecent assault at any stage.

6.PW1 said he was close to LEE but not close to the Appellant. He said he came into contact with the Appellant after he was pushed by LEE. PW2 said the Appellant and PW1 were face to face, near each other but not “very, very close” to each other. PW3 said there was a distance between PW1 and the Appellant.

7.After the police had arrived, the Appellant was arrested by a police officer (PW4). PW4 confirmed that the Appellant made an allegation of indecent assault against PW1.

8.The Appellant admitted under caution she did kick PW1 as PW1 had threatened to indecently assault her and that she suspected  PW1 had done so.

The Defence case

9.The Appellant gave evidence to the effect that PW1 scolded her in foul language and had touched her chest while swearing, hence she kicked PW1. In other words, the defence was that she was acting in self-defence when she kicked PW1.

10.The defence also called a witness (DW1) who is the girlfriend of LEE. DW1 said she saw PW1’s stomach touching the Appellant’s stomach but she did not see any kicking.

Findings of the learned magistrate

11.The learned magistrate identified the discrepancies among the prosecution witnesses. She found PW1 was very close to LEE at the time so the pushing by LEE did not amount to an assault. She found PW1 did not indecently assault the Appellant, nor did he threaten to do so. She found what the Appellant did was not self-defence and found the Appellant guilty of “Common Assault”.

Grounds of appeal on conviction

12.The Appellant, who is not legally represented, basically re-told her version of the event to me when the appeal was first heard in March. She maintained that PW1 was standing too close to her and his hands were almost on her breast. She was also adamant that PW2 had  given evidence to that effect, i.e. PW1 was close to her, with his hands almost touching her breast.

13.As the basic appeal bundle does not include transcript of witnesses, I adjourned the matter and called for the transcript so that I could study what PW1-PW3 had said during the trial.

14.Having perused the transcript carefully, I do not see any of the prosecution witnesses, in particular PW2, ever saying that PW1 was standing too close to the Appellant with his hands almost on the Appellant’s breast.

Judgment

15.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so: see CHOU SHIH BIN v HKSAR, FACC No. 11 of 2004.

16.In relation to the facts of the case, an appellate court must recognise that it does not enjoy the advantage of having received the evidence at first hand. Whether a particular witness is credible or reliable is solely for the magistrate to decide. However, if it can be shown that the findings of facts by the magistrate is illogical or unreasonable, or being inherently improbable; or that the magistrate has misunderstood the evidence, or failed to consider relevant evidence, the conviction would be quashed due to its unsafe and/or unsatisfactory nature. 

17.The learned magistrate has properly considered all the evidence. She was aware of the prosecution case and the defence case. She was also aware of the discrepancies among the prosecution witnesses. The Appellant had admitted kicking PW1. The only factual issue before the learned magistrate was under what circumstances the Appellant kicked PW1. After careful consideration the learned magistrate found that PW1 did not indecently assault or threaten to indecently assault the Appellant. The act of kicking was not self-defence. There is no basis to suggest that the conviction was either unsafe or unsatisfactory.

18.The Appeal against conviction is dismissed.

Appeal against sentence

19.There are no grounds submitted by the Appellant. In view of the nature of the offence, it would be extremely hard to suggest that a conditional discharge/binding over order in the sum of $500 for a period of 12 months is inappropriate.

20.My attention is, however, drawn to the actual wordings of the order. According to the Certificate of Conviction, the Appellant was [bound over [in] the sum of $500 for 12 months”. When the learned magistrate sentenced the Appellant, she said (at line I, page 35 of the appeal bundle):

“… I give you a conditional discharge in the sum of HK$500 on recognizance for a period of 12 months. Conditional discharge means that if you keep out of trouble for the next 12 months then nothing further will happen. If, however, during the next 12 months you do get into any further trouble, to which you plead guilty or are found guilty, you will be in breach of the conditional discharge and then you can be re-sentenced for that matter…”

21.According to the decision of Lau Wai Wo v HKSAR (2003) 6 HKCFAR 624, the traditional form of bind-over orders requiring the person concerned to keep the peace and be of good behaviour without greater precision is no longer satisfactory.

22.Having considered the background of the offence, I shall amend the terms of the Certificate as follows:

“It is adjudged that the appellant be bound over in the sum of $500 for 12 months to be of good behaviour and to refrain from engaging in disorderly conduct and/or assault in public, in particular in relation to personnel of bus company/companies at the Lok Ma Chau Terminus”.

Mr. HO Wing Kwong, Paul (on 10 March) and Mr. TAM Yiu Ho, William (on 30 June), both Senior Government Counsel of the Department of Justice, for Respondent

Appellant CHAN Yuen Sau in person