HKSAR v. Leung Ping Keung

HCMA714/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.714 OF 2006

(ON APPEAL FROM TWCC 1445 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 14 November 2006

Date of Judgment : 14 November 2006

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of ‘common assault’ contrary to common law and section 40 of the Offences Against the Person Ordinance (Cap. 212) and one charge of ‘criminal damage’ contrary to section 60(1) of the Crimes Ordinance (Cap. 200).  He appeals against these convictions.

2.The allegations arose from a dispute between PW1 (a bus driver) and the appellant (his passenger).  It developed into something physical and was witnessed by PW2 (the terminal supervisor).

3.The following is a summary of the evidence by the magistrate :

“4.   PW1 gave evidence basically relating to the manner of the defendant’s entering his bus and making payment on 1^st May 2006 and how when the bus reached the bus terminus the defendant had approached him and scolded him on the bus, and later when near the supervisor’s room the defendant had approached him and scolded him and challenged him to a fight.  He also told of how the defendant had bumped his chest against him and how his spectacles had dropped onto the ground and how when he went to pick them up the defendant had kicked them and damaged them.  The spectacles were produced as exhibit P3.  PW2 was the supervisor at the bus terminal and he told the court how he had heard noise outside his office and how he saw the defendant making a scene.  He also told of how the defendant had used his body to block PW1 and bumped his chest against PW1 causing PW1 to lose balance resulting in his spectacles dropping onto the ground, and upon how the defendant stomped and kicked the spectacles and then left.

5.    The defendant’s case was basically that on the 1^st May 2006 when he boarded the double-decker bus he found PW1 to be very fierce (because of the previous incident) and he had thus accidentally dropped some bus fare money onto the floor when putting it into the pay box and he had ignored PW1’s request to pick the coins up.  Thereafter, when the bus reached the bus terminal, PW1 had rushed up to the upper deck and spoken to him with foul language.  The defendant then left the bus in front of PW1 and walked down to look for the supervisor, and when he found the supervisor he reported the matter.  However, when PW1 saw him talking to the supervisor, he rushed down noisily holding a KMB sign in one hand, and whilst so doing his spectacles drop off the top of his head, but PW1 did not notice this had happened.  Thereafter the defendant left the scene.  The defendant denied having ever bumped into PW1’s chest and having kicked or stomped on PW1’s spectacles as claimed.  He said it was PW1 who intended to bump him.” 

4.In the end, the magistrate accepted the evidence of PW1 and PW2 and rejected that of the appellant.

5.Before me, the appellant has said little except that he is innocent.  He says there is an unresolved discrepancy in the prosecution case in that PW2 admitted that the appellant had complained to him about PW1 while PW1 denied it.  This took place at the terminus when everybody was off the bus and on the ground.

6.I am satisfied however that this is not the kind of discrepancy that should upset a conviction.  The important thing is how consistently PW1 and PW2 had testified about the appellant bumping his chest and kicking at the spectacles.  And the magistrate believed them.

7.The appeal is dismissed.

Mr Jonathan Man, SGC of Department of Justice, for HKSAR

The Appellant, in person