HKSAR v. Yip Yuk Chun

HCMA175/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 175 OF 2008

(ON APPEAL FROM TMCC 4743/2007)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  15 October 2008

Date of Judgment:  15 October 2008

J U D G M E N T

1.This is an appeal against a conviction for assault occasioning actual bodily harm.  The appellant is a 57-year-old lady who had no previous convictions.  The victim was her neighbour.  The evidence revealed that, for a number of years, there had been bad feeling between the appellant and the victim and the evidence of the victim is that on the day in question, as had habitually happened, the appellant swore at her but that, on this day, instead of putting up with it, she decided to swear back whereupon the appellant punched her twice in the face and slapped her twice in the face. 

2.At the trial below, the victim gave evidence and also another neighbour gave evidence supporting the evidence of the victim, describing an attack in roughly similar terms and it was the case that the victim went off to see a doctor and that there was an agreed medical report which made a finding of tenderness and mild swelling over the face .  X-ray revealed no fracture.  It said the mode of injury was compatible with blunt trauma.

3.The magistrate, in a careful statement of findings, analysed all the evidence and all the points that were made for and against each side in submissions to him.  He found PW1 and PW2, the victim and the other neighbour, to be good and credible witnesses.  He rejected the evidence of the appellant. 

4.Today, a number of points are argued before me and they are to the effect that I should not trust the magistrate when it comes to credibility, so let me deal briefly with the points raised. 

5.It is said that if there had been such a history of bad feeling, why would it be on this day that the appellant decided to resort to violence, and that it was inherently improbable she did so.  The point is countered by saying on this day, the evidence was that the victim decided to swear back and as to why that should happen and be a change from past history, one only has to mention the phrase "the final straw that broke the camel's back". 

6.The next point concerned a delay in calling the police. Basically, PW1 changed her mind about it, being reluctant to do so at first but then, when she felt dizzy and noticed that her nose had been bleeding, she decided to make the report.  It is argued that such a change is inherently improbable and that if her reason for initially not wanting to involve her neighbour in any potential trouble was true, she could have made the complaint without involving the neighbour.  I do not find the behaviour of the victim inherently improbable in this regard and the fact that conflicting considerations existed in the decision to call the police is entirely understandable and it is not inherently improbable that someone might change their mind. 

7.The third point made was that the victim had a previous conviction for theft - it had been a shop theft - and the point is made against her that she, in effect, was reluctant to admit the full effect of the conviction, in particular, that it involved her having been dishonest.  Looking at the transcript, one can see she admitted a conviction for theft.  Cross-examining counsel then said, "That's an offence of dishonesty," and received the answer, "No, it's just something dropped into my bag."  But then the questioning reveals that she had admitted the charge and the questioner said, "You admitted stealing the item, madam," and received the answer, "Yes."  And the next question was, "Which means that you intentionally put it in your bag to take away without paying for it."  Answer, "Yes."  "An offence of dishonesty?"  Answer, "I don't know." 

8.Counsel for the respondent today argues that what the transcript reveals is that she was prepared to admit that she had been stealing and did not understand what an offence of dishonesty actually meant.   

9.The fact is, the questioning was not extensive enough to be able to resolve the question.  For the purposes of this appeal, I will go along with what is contended for by the appellant, namely, that the lady was reluctant to admit all that she had done wrong on that occasion in respect of the shoplifting case and I will put that point on the scales when it comes to deciding the case. 

10.The next point made was that there was no evidence of actual bodily harm.  It was said that mild swelling, in effect, was not enough to meet the definition.  I reject that.  All I need say is it is the experience of these Common Law courts in Hong Kong and all over the Common Law world, I dare say, that people who receive a blow to the face and have swelling are rightly said to have suffered some actual bodily harm. 

11.The next point made was that the injuries were at odds with the evidence of PW1 and did not support it as the magistrate found.  The magistrate made the comment that he was not surprised that this attack by a 57-year-old lady only resulted in mild swelling.  It was a common-sense observation with which I agree.  Even though the victim might have described it as hard, this clearly was not going to be a punch of the nature which would start breaking bones or splitting skin. 

12.The lady's nose bled and the point is made that there is no finding of any laceration to the nose or the like.  Anyone who has seen some playground violence, minor sports violence or the like take place, well know that if you burst a small blood vessel inside your nose through trauma, it will bleed and the bursting of a small blood vessel inside the nose, in my judgment, is quite consistent with what was described and is not the sort of injury that an Accident & Emergency doctor would begin to either find or document when he sees a lady in the circumstances that this victim was seen.  The point is made that the swelling is described as being to the face and not specifically to the nose, the response to which is the greater must include the lesser. 

13.There were some points made about discrepancies in the description of the incident as between PW1 and PW2.  They are not such as to raise any reasonable doubt in my mind and deserve no further discussion now. 

14.The final point made was that the magistrate gave insufficient reasons for rejecting the evidence of the appellant.  In that part of his statement of findings that specifically dealt with her evidence, he said he rejected it and did not add anything further.  But, by that stage, he had already made findings and related his findings on all the evidence about the credibility of PWs 1 and 2 and the consistency of the injury.  He might have added - but it would not have made any real difference to anything - "I rejected it because it was inconsistent with other good, cogent and credible evidence." 

15.It comes to this:  that I trust the magistrate's judgment on credibility in this case and, of course, he had the advantage of having the trial conducted live before him.  But I will not dispose with the appeal just on that basis for the appeal is a rehearing and the appellant is entitled to ask me to exercise my judgment afresh on the material - and I do so.  When it comes to giving reasons why the evidence of a particular witness - in this case, the appellant - is not accepted, it has to be acknowledged that in short cases like this, which amount to little more than assertion and counter-assertion, no one will be able to find in the actual evidence of the appellant herself, material which destroys or significantly undermines it. 

16.In some cases - and this is one - the reasons for conviction can be very shortly stated.  I will uphold the conviction and I will state two reasons why.  Firstly, that the otherwise credible evidence of the victim was supported by another neighbour and that, whilst remembering that neighbour was a friend of the victim, is very significant support, and, secondly, that a doctor found swelling to the face of the victim which is just what you would expect if what the victim had said happened had, in fact, happened and there is nothing else to explain how that swelling was caused. 

17.It was said that the two witnesses - PW1 and PW2 - had got together to frame up the appellant.  In the absence of some highly coincidental injury to the face of the appellant, it seems to be the suggestion that the swelling to her face would have been self-inflicted, and self-inflicted in the pursuit of presenting a false picture to a court.  I regard that as fanciful and unrealistic. 

18.Accordingly, the appeal against conviction is dismissed.  There was no appeal against the fine of two and a half thousand dollars which was imposed.

(Submission on costs)

19.I will not make the appellant pay the whole costs but I will make an order that she contribute to the extent of $1,000.00 to them. 

Mr Richard Ma, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Mr Shahmim K Khattak (alias Kelly Lam), instructed by S Y Chu & Co., for the Appellant