HKSAR v. Wong Kwok Mun, Addy

HCMA 827/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 827 OF 2009

(ON APPEAL FROM ESCC 3604/2009)

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BETWEEN

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Before: Hon Wright J

Date of Hearing and Judgment: 19 February 2010

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J U D G M E N T

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1.The appellant was convicted, after trial, by William Lam, Esq, magistrate, of one charge of assault occasioning actual bodily harm and one charge of common assault. He was sentenced to undergo imprisonment for five months and one month respectively with an order that the sentences be served consecutively to one another. He appeals both conviction and sentence.

2.The two offences occurred in the early hours of 6 June 2009, the first whilst he and his former girlfriend, a Ms Wu, were inside a taxi in Kowloon and the second after they had alighted the taxi in Pok Fu Lam: in each instance, the conduct was directed towards her. Ms Wu was married at the time and lived with her husband at Pok Fu Lam.

3.It is not disputed that in May 2009 she had broken off her relationship with the appellant. It was her evidence that her husband was unaware of her relationship with him. The appellant wished to continue to see her on the basis that they were "normal friends".

4.On the night of the offence they had gone out to Kowloon for a meal and drinks and then on to a karaoke establishment. They had left there around two in the morning. The appellant wished to accompany her home but she demurred on the basis that her husband would be at home.

5.It was Ms Wu’s testimony that she had entered a taxi and sat in the front seat: the appellant had boarded the same taxi and sat in the rear seat. There was a dispute between them as to where they should go. The argument escalated and she indicated that she would ask the driver to go to Mongkok police station whereupon the appellant attacked her from the rear seat. She described the assault in detail. The taxi stopped. She was aware of two police officers one of whom asked her what she wished to do: she said she did not wish to make a report but simply wanted to go home. The appellant got out of the taxi. She continued her journey in the same taxi to Pok Fu Lam. When she reached there she discovered that the appellant had arrived ahead of her. She alighted the taxi. Once again he assaulted her. She shouted out. Her husband heard her cries and came out to assist her. The police were summoned.

6.The taxi driver was called as a witness. In essence, his evidence corresponded with that of Ms Wu insofar as the appellant physically assaulting her inside the taxi and was waiting for her when she alighted at Pok Fu Lam is concerned. At Pok Fu Lam and the taxi driver saw him drag her away.

7.Also called as witnesses were Ms Wu's husband and the police officer who arrested the appellant.

8.The appellant elected to give evidence. He denied that he had assaulted Ms Wu either in the taxi or at Pok Fu Lam. It was his case that they had simply driven, in an amicable atmosphere, to her home where they had alighted. He was sitting chatting with her when her husband appeared and assaulted him. This version of events had been put to Ms. Wu in cross-examination and she had denied it: she denied having concocted her story in order to "protect" her husband. Similarly, her husband had denied assaulting the appellant.

9.It is entirely unsurprising that the magistrate rejected the appellant's version. The taxi driver was a stranger to both Ms Wu and the appellant. No sensible reason can be advanced as to why he would have conspired with Ms Wu to give false evidence against the appellant, nor indeed to help protect her husband. Perhaps of even greater persuasive value are the facial injuries which Ms Wu sustained that evening. She was examined shortly after 5 AM on 6 June: the injuries are detailed in the medical report and graphically illustrated with photographs.

10.I have been urged to contemplate how Ms Wu was injured: particularly, may she have been assaulted by her husband? The answer to this is that the husband gave evidence yet it was never suggested to him in cross-examination that he had hit his wife. The appellant gave evidence: he alleged that the husband had assaulted him but did not suggest at any stage that he had also assaulted Ms Wu. I decline the invitation to speculate.

11.There certainly were discrepancies in the prosecution evidence, both internal to a particular witness and as between witnesses. The magistrate was alive to them, as am I. They caused him, as they cause me, no concern about accepting the evidence of the prosecution.

12.The grounds of appeal amount to nothing other than a criticism of the magistrate and do not address the issue of sufficiency of evidence. Counsel for the appellant relied upon a case decided in 1987 which, with respect, has no relevance to the approach now indicated as proper by the Court of Final Appeal. An appeal from the magistrate is a rehearing on the evidence before the magistrate together with such additional evidence as the court hearing the appeal may allow. It is for the appellate court to come to its conclusion as to whether guilt is established on that evidence.

13.I have no difficulty in rejecting the appellant's evidence and accepting the evidence of the prosecution witnesses which quite clearly establishes each of the respective offences. The appellant was correctly convicted.

14.Insofar as the appeal against sentence is concerned, it is necessary to bear in mind that these were two separate and distinct assaults carried out by the appellant on his former girlfriend. The first assault was in a taxi in circumstances in which it would have been impossible for her to escape or adequately defend herself. It involved, at the least, blows to her face with the appellant's fists. The second assault, apparently not involving blows, occurred somewhat later and after the appellant had travelled from Kowloon to Pok Fu Lam demonstrating real determination in continuing his dispute with Ms Wu. The magistrate noted that this was an attack to the head especially in regions of the eyes. That said, it must also be borne in mind that the injuries sustained by Mr. Wu were not particularly serious nor did they have any long-term consequences. The appellant was convicted after trial, displaying not the slightest remorse for his violent conduct.

15.The appellant was of clear criminal record prior to these events. He is a civil servant having worked for the Correctional Services Department for some 29 years. He appears to be well regarded by colleagues.

16.Once again it falls to me to determine what, in the circumstances, is an appropriate sentence and is not an issue of whether the magistrate was right or wrong. On the facts of this matter I agree that an immediate custodial sentence is appropriate. However, in my judgment the appropriate sentence on Charge 1 would be two months imprisonment and on Charge 2 one month imprisonment which should be served consecutively that on Charge 1. This results in an aggregate sentence of three months imprisonment. There is no justification for suspending that sentence.

17.Consequently, the appeal against conviction is dismissed and the conviction confirmed. The appeal against sentence is allowed to the extent that sentence on a Charge 1 is to be two months imprisonment and on Charge 2 one month imprisonment, the sentences to be served consecutively.

Mr. Tony NG instructed by Messrs Anthony Kwan & Co. for the Appellant

Mr Frederick CHUNG, Senior Public Prosecutor of the Department of Justice, for the HKSAR