HKSAR v. Tuen Yuen Yuen

HCMA 579/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 579 OF 2005

(ON APPEAL FROM KTCC 1606 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 19 July 2005

Date of Judgment: 19 July 2005

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J U D G M E N T

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1.The Appellant, a woman of previous good character in her mid-30s, was convicted after trial before Stephen Smout, Esquire in the Magistrate’s Court at Tsuen Wan, on a charge of common assault and a charge of obstructing a police officer in the due execution of his duty.  She now appeals against these convictions.

2.The prosecution’s evidence was to the following effect.  The Appellant had, while travelling on a bus, attacked another passenger.  Then after the Appellant had been arrested and taken to the police station in a police vehicle, she refused to alight despite being repeatedly told to do so by the police.  So she had to be taken off the police vehicle and into the police station by force against which she struggled.

3.In her evidence, the Appellant denied all of that and her evidence was to the following effect.  The other passenger had dropped some luggage on her i.e. Appellant’s daughter but refused to apologize and a quarrel ensued.  That was followed by a physical encounter which consisted of her defending herself against an assault by the other passenger.  When the police arrived, they promised to take her and her daughter to hospital.  That was why she resisted going into a police station instead.

4.What the Magistrate had to decide on each charge is whether even after taking the Appellant’s good character fully into account, he felt sure that the truth had come from the prosecution witnesses and not the Appellant.  If he was not sure of that, he had to acquit.  If he was sure of that, he was entitled to convict.  He did feel sure of that and he convicted.  An appeal like this one is by way of re-hearing.  The appellate court’s powers and duties include disturbing the trial court’s findings of facts whenever it appears just to do so.  But where, as in an appeal like this one, the re-hearing is upon oral arguments on the written record, there is a matter that the appellate court will bear in mind as appropriate when asked to disturb the trial court’s findings of facts that depend in whole or in part upon an assessment of the witnesses.  It is that, unlike the trial court, the appellate court does not enjoy the advantage of having seen and heard the witnesses in the witness-box.  There is nothing to suggest that the Magistrate misused his advantage of having seen and heard the witnesses.  Not having seen or heard them as he had, I find nothing in the circumstances that justify my disturbing his findings of facts.

5.Accordingly, the appeal is dismissed.

Appellant in person

Miss Olivia Tsang, GC of the Department of Justice, for the Respondent