HKSAR v. Nur, Hamidah

HCMA772/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 772 OF 2009

(ON APPEAL FROM NO. TMCC 1859 OF 2009)

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BETWEEN

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Before: The Honourable Madam Justice Beeson

Date of Hearing:  30 September 2009

Date of Judgment:  30 September 2009

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J U D G M E N T

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1.This Appellant was convicted after trial in the magistracy of one count of Assault Occasioning Actual Bodily Harm, and a second count of Criminal Damage. She was sentenced to 6 weeks’ imprisonment on the 1st charge and 2 weeks’ imprisonment on the 2nd. The sentences were ordered to run concurrently, making a total of 6 weeks’ imprisonment.

2.The Appellant was ordered to pay $1,000 compensation to the victim through the court within 28 days of the date of sentence, failing which 7 days’ imprisonment would be added to the sentence, to run consecutively. The Appellant appealed against both conviction and sentence.

3.The charges arose from a quarrel between the Appellant and PW1 who lived in neighbouring rooms at the same address. The Appellant allegedly grabbed PW1’s hair with her left hand and punched her on the face four times with her fist. She then released her and pushed her so that she fell to the floor. The victim took out her mobile phone to report to the police. The Appellant took the phone and threw it to the ground. PW1 then tried to use the house telephone, but the Appellant took that too and punched her twice more on the face. After that PW1 ran into the street and made a call to the police by public telephone.

4.PW1 sustained injuries, and a medical report, Exhibit P2, was produced. This recorded patches of bruising of 0.5 cm in diameter over the upper and lower lips of the victim. The doctor also found bruising of 1 cm 0.5 cm over the dorsal aspect of her right hand and a 0.3 cm linear abrasion wound over the dorsal aspect of her left hand. PW1’s mobile phone had been functioning normally before the Appellant threw it, but after that it could not be turned on. In addition, the telephone cover had been broken and part of it was missing.

5.Apparently, the relationship between the two women had been good prior to this incident, and PW1 said in evidence that she and the Appellant had been very close, so that she thought of the Appellant as her own mother.

6.The Appellant gave evidence and complained that on the date of the incident PW1 had allegedly offered her some cigarettes containing cannabis, and that she became angry because PW1 was always asking her to sell “that sort of stuff.” She told PW1 to leave and take “the stuff” with her. She alleged that PW1 spat on her and twisted her hands. Then the Appellant slapped her face in retaliation. PW1 threatened to kill her. PW1 allegedly kneed the Appellant in the back until the Appellant lay on the floor and then punched the Appellant’s right ear many times. Further violence was then inflicted on the Appellant by PW1, who eventually ran away, telling the Appellant that she would find a way to send her to prison. The Appellant said that she did not report the incident to the police because she did not want any trouble. She complained that she suffered from headaches after the incident.

7.The Appellant produced three medical reports. The first, Exhibit D1, related to an examination on 22 May 2009, saying that her chief complaint was a left-sided headache for one day. Exhibit D2, a report which was made on 24 May 2009, referred to a complaint of epi-gastric pain and vomiting for two days and back pain for four days after sustaining an injury. Exhibit D3, another report, related to the Appellant’s visits to a doctor on 23 June 2009 and 2 July 2009. Her complaint was of intermittent headache and neck pain for 2 weeks after she was hit by somebody, and also of tinnitus in her right ear for 2 weeks. The doctor found her right ear to be intact, with mild redness of the external canal, and there was no abnormal finding in her left ear.

8.Essentially this was a conflict of accounts between the protagonists to a quarrel. There were no witnesses to the incident. The magistrate noted that the Appellant had a clear record. Having considered the evidence, he accepted the evidence of PW1 and found her a credible witness. He said that he was not surprised that she was unable to defend herself from the assault of the Appellant, because the Appellant was obviously stronger and more powerfully built than PW1.

9.He found the Appellant’s account of the violence allegedly inflicted on her by PW1 to be totally implausible. The medical evidence of the injuries sustained by PW1 were consistent with her account of what had happened. The medical evidence produced by the Appellant did not advance her account of having been attacked by PW1. None of the reports produced by the Appellant were contemporaneous with the assault, and all of them reported subjective symptoms. The only physical finding was the slight redness of the right ear canal.

10.This was a classic case where the magistrate had to consider entirely different versions of the same incident without benefit of other eye witnesses. He did so proceeding from the basis that the Appellant was of clear record. He gave himself the appropriate directions and analysed the evidence. He considered the questions of lawful self-defence and whether the Appellant had lawful excuse or authority, and excluded them. As for the damaged telephone, the magistrate was satisfied that the Appellant intended to damage the telephone, or was reckless as to whether it would be damaged.

11.I see no basis for interfering with the conviction in this case, and the appeal against conviction is dismissed.

12.The magistrate, in sentencing, took into account the clear record of the Appellant, but also noted that this was quite a violent attack which had proceeded in a series of incidents. He considered that the Appellant had shown no remorse and, in particular, had tried to blacken the character of PW1 by the allegations that she was selling dangerous drugs. He considered himself precluded from a Probation order, or a Community Service Order because the Appellant was an asylum seeker. He found that a short custodial sentence was warranted and imposed 6 weeks for the assault and 2 weeks for the criminal damage charge.

13.The Respondent concedes that the sentence could be considered heavy for a first offender, but maintains that it was not manifestly excessive nor wrong in principle given the nature of the attack. Looked at in context, I agree that a short custodial sentence was warranted in this case, but consider that in the light of this being a first offence that a shorter sentence would have been sufficient.

14.The sentence is on the high side but not manifestly excessive. The appellant was reminded that she had not complied with the compensation order made by the Magistrate and that if she did not do so she would have to serve a further 7 days’ imprisonment. She indicated she was not prepared to comply and accepted that she would have to serve a further 7 days.

15.The appeal against sentence is dismissed.

Mr David Leung, SADPP (Ag.) of the Department of Justice, for the Respondent

Appellant, in person