HKSAR v. Wan Chun Yip

HCMA 806/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 806 OF 2008

(ON APPEAL FROM KCCC 4654/2008)

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BETWEEN

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Before: Deputy High Court Judge Geiser in Court

Date of Hearing: 28 November 2008

Date of Judgment: 28 November 2008

Date of Handing Down Judgment: 9 December 2008

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J U D G M E N T

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1.On 1^st September 2008 the appellant was convicted after trial of an offence of fighting in a public place contrary to section 25 of the Public Order Ordinance Chapter 245 Laws of Hong Kong.  He was sentenced to 18 weeks’ imprisonment.

2.He has appealed against his conviction and sentence and on 28^th November 2008 after hearing oral submissions from the appellant in person I dismissed the appeal against conviction, indicating I would give my reasons for doing so at a later date.  I do so now.

3.No formal grounds of appeal against conviction were filed by the appellant other than that which was contained in his Notice of Appeal dated 4^th September 2008 indicating that he was not guilty of the offence.  The appellant expanded on this in his handwritten note annexed to the Notice of Appeal where he stated inter alia, and which he repeated before me, that it was the other party who kicked his vehicle first with his leg that led to the incident.  He also stated that it was he, the appellant who reported the incident to the police.  He said he never used his fist to fight back, and only fended off the other parties’ fist out of instinct indicating that the other parties’ injuries were probably caused unintentionally.

4.At trial the evidence adduced amounted to the evidence of PW1, on the one hand and the appellant on the other.  There was also evidence which was admitted under section 65C, Criminal Procedure Ordinance Chapter 221 Laws of Hong Kong as to injuries found on PW1 by the doctor at Kwong Wah Hospital on the same day.

5.The learned Magistrate in his Statement of Findings accurately summarised the evidence of the competing accounts by PW1 and the appellant respectively.  PW1 admitted in evidence that he kicked the window of the appellant’s car as it had nearly struck him when he, PW1, was about to cross the road having the benefit of a green pedestrian light.  The appellant got out of his vehicle and scolded PW1 with foul language.  As the learned Magistrate put it, both men “squared off with each other” and PW1 pushed the appellant in the chest.  As PW1 turned round and walked off, the appellant struck him around the left ear from behind.  That was effectively the account given by PW1 in evidence.

6.The appellant for his part had said that when PW1 kicked the window of his car, he got out to check his vehicle and he used abusive language to PW1.  PW1 then hit the appellant in his nose.  The appellant then tried to grab PW1 but failed.  PW1 then left the scene with the appellant pursuing him.

7.In his cogent and reasoned Statement of Findings, it is clear that the learned Magistrate considered very carefully the credibility and reliability of PW1 on the one hand and the appellant on the other.  He found PW1 to be an honest and reliable witness, and he disbelieved the evidence of the appellant saying it was neither cogent nor credible.  The learned Magistrate had the benefit of seeing and hearing the respective parties give evidence and it is not for this court to interfere with the learned Magistrate’s finding on credibility.  In addition the learned Magistrate noted that the medical findings of the injuries on PW1 were quite consistent with the evidence of PW1.

8.Despite the fact that self defence was not raised either in the course of the prosecution case or the case for the defence, the learned Magistrate rightly considered this, but found that it did not arise.  He was satisfied so that he was sure beyond a reasonable doubt that there was a fight in which both men had taken part.

9.For these reasons I dismissed the appeal against conviction and I confirm the conviction.

10.With regard to his appeal against sentence, Mr Hung who appears for the appellant has filed four perfected grounds of appeal against sentence.  I paraphrase them:

(a)  the sentence of 18 weeks’ imprisonment is out of line when compared with other sentences imposed for fighting in a public place;

(b)  the learned Magistrate failed to have regard to the principle that the court should try to achieve parity of sentence for like offences to avoid a sense of grievance;

(c)  undue weight was placed on the previous convictions for violence of the appellant;

(d)  that the sentence is manifestly excessive.

11.I find there to be no merit in any of these grounds.  The learned Magistrate found this to be a case of road rage where the appellant leapt out of his car, used abusive language to PW1 and after having been pushed by PW1 struck him around the ear from behind, causing injuries to PW1.

12.In the case of HKSAR v. So Ming, HCMA 264 of 1998 a starting point of three months’ imprisonment reduced to two months to take into account the appellant’s plea of guilty to a charge of assault occasioning actual bodily harm was upheld by Deputy Judge Lugar-Mawson as he then was who said this:

“Those who think that they can vent their anger at having their driving habit criticised by other road users by assaulting them, can only expect to be dealt with very severely by magistrates.  The short, sharp shock of a short prison sentence is the best way of treating these offenders .…”

13.In view of the fact that the appellant had previous convictions which included three previous convictions for violence, the sentence of 18 weeks’ imprisonment can in no way be said to be manifestly excessive.

14.I dismiss the appeal and confirm the sentence.

Ms Grace Chan, Senior Public Prosecutor, of Department of Justice, for the Respondent

Mr Andy Hung Hing Shek, Counsel, instructed by Director of Legal Aid, for the Appellant for the appeal against sentence.

Appellant in person for the appeal against conviction.