HKSAR v. Mok Chu Wing, Tony

HCMA152/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 152 OF 2009

(ON APPEAL FROM KTCC 6803 OF 2008)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 3 April 2009

Date of Judgment : 3 April 2009

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J U D G M E N T

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1.The appellant was convicted after a trial before Ms L.K. Loh in Kwun Tong Magistracy of an offence of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212.  He was fined $250.

2.He now appeals his conviction.

3.The facts of the case as found by the magistrate were that the appellant had been a patient at United Christian Hospital in Kowloon where he had been treated for epilepsy.

4.On the day of the offence he had been found to no longer require hospitalisation and had been discharged.  Because he had not been prescribed the medicine he thought he should have been prescribed, he refused to leave his hospital bed.  Various hospital staff failed to persuade him to do so and eventually hospital security personnel were called to remove him from the hospital or at least from the bed he occupied.

5.When the appellant still refused to vacate the bed the victim of the offence, PW1 who was one of four security staff at the scene, then with his three colleagues approached the appellant to lift him out of the bed.  As PW1 did so the appellant punched PW1 three times on his face and chest.

6.The appellant was then lifted from the bed and, when he struggled, was restrained on the floor.  After he had calmed down he was placed in a wheelchair and was about to be wheeled from the hospital ward when he kicked PW1 on the shin.  The appellant then got up from the wheelchair and was accompanied out of the ward to the lift lobby.  There police who had been called to the scene arrested him.

7.The appellant who was represented at trial, but not before me, advanced what can be described as three fundamental complaints by way of his homemade grounds of appeal.  I will deal with them in turn.

8.Firstly, he said that at the time the magistrate was delivering her judgment he had not heard the interpretation of what was said clearly.

9.This cannot, even if true, be a basis for any ground of appeal.  Even if the appellant had difficulty in hearing the translation of what was said, that would not mean he had not had a fair trial.  The trial was by then over, and the magistrate’s role at that stage was simply to provide reasons for her conviction of the appellant. 

10.Those reasons were in any event available to the appellant.  He was represented by a counsel under the Duty Lawyer Scheme and his counsel was in court at the time the magistrate delivered her verdict.  There has been nothing put to me which would suggest that any incomplete understanding by the appellant as to why he had been convicted could not have been remedied by a simple question of, and an explanation by, his counsel.  I note no complaint was made to the magistrate as to the appellant not hearing her reasons for verdict either at that stage or any subsequent stage of the proceedings.

11.The appellant makes a related complaint that his counsel did not in fact explain or summarise the reasons given by the magistrate for the appellant’s conviction.  This is, I would think, though I have heard no argument on the matter, part of counsel’s duties, especially if asked to do so.  But even if counsel had been requested by the appellant to do so and had not, or had done so insufficiently, that would not render the trial itself unfair and the conviction would still be proper.

12.There is nothing in this complaint.

13.The next matter advanced by the appellant seems to be an allegation that his counsel did not tell him the content of his final submission prior to making it.  There is a simple answer to that : counsel is not obliged to do so.

14.Finally, the appellant asserts that as well as suffering from epilepsy he is otherwise mildly handicapped both intellectually and in terms of his personality.  That may be so, though I must say it was not particularly apparent at this hearing. 

15.But accepting that to be the case, that circumstance in no way undermines the conclusions I have reached.  The appellant, it seems to me, had a fair trial, and on the basis of the evidence before the magistrate, and for the reasons she gave, the conviction of the appellant was entirely proper.  The matter really resolved itself into questions of credibility.  The conclusion of the magistrate in rejecting the appellant’s evidence and accepting that of the hospital staff who comprised the prosecution witnesses was entirely proper and was a conclusion with which I agree.

16.The remaining matters advanced by the appellant in support of his appeal are equally without merit and are entirely inconsequential. 

17.The appeal is dismissed.

Ms Virginia Lau, SPP of the Department of Justice, for HKSAR

The Appellant in person, present