HKSAR v. Lai Kwai Po

HCMA870/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.870 OF 2009

(ON APPEAL FROM KCCC 3893 OF 2009)

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Before : Hon D. Pang J in Court

Date of Hearing : 29 January 2010

Date of Judgment : 29 January 2010

Date of Reasons for Judgment : 4 February 2010

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REASONS   FOR   JUDGMENT

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1.The appellant was convicted after trial of one count of “assault occasioning actual bodily harm” and sentenced to 18 weeks’ imprisonment.  He appeals against that conviction. 

The prosecution case

2.This is how the magistrate summarized it in his Statement of Findings :

“2. The Defendant was an inmate of Lai Chi Kok Reception Centre, PW1 was a CSD officer there.  The Defendant was admitted to LCK on the day before; according to the procedure in LCK, all new intakes would be accommodated to sleep in a certain place on the first night and on the next morning, all would gather at room 4B at the 4^th floorof Block F (room 4B) for meal and then further processing, including a roll-call,then brought to the fingerprint room for further processing.  PW1 was in charge of the roll call at room 4B, however the Defendant was using the bathroom for an unnecessary length of time causing a hold-up to the roll call.  (The following of PW1’s evidence in italic were challenged by the defence and was not accepted at the end of the day.)  When confronted by CSD officers, the Defendant used abusive language to PW1’s superior which triggered a complaint to be launched against him; follow that PW1 alone took the Defendant downstairs to the Duty Officer’s office for laying the complaint.  When they were almost reaching the ground level where PW1 would hand him over to another officer (PW2), the Defendant suddenly out of the blue gave PW1 a punch.  With the assistance of PW2, the Defendant was finally subdued after a struggle.  PW1 denied the suggestion by the defence that it was a made up story and it was, in fact, PW1 who pushed the Defendant down the staircase.

3.   PW2 was an assistant of the Duty Officer who received instruction an inmate (the Defendant) who would be brought downstairs from room 4B, handover to him at the ground level of the staircase for further action.  While waiting at the handover point, PW2 saw PW1 escorting the Defendant down from the staircase, the Defendant was in the front with PW1 behind at a distance of about 1 step away, when reaching almost 3 to 4 steps from the ground level, the Defendant suddenly turned his body to the left, used his right fist punching PW1’s right eye corner once; on seeing this, PW2 immediate went up to assist and after a struggle, finally pressed the Defendant down at the staircase.”

The defence case

3.The appellant did not give evidence, or call any witnesses. But it was put to the prosecution that theirs was a fabricated story and it was PW1 who pushed the appellant down the staircase.  A medical report was also produced to show the injuries that the appellant sustained as a result of the incident. 

The magistrate’s findings

4.These are the reasons the magistrates gave for convicting the appellant :

“6. I found that PW1 was an honest witness,he tried his best to tell me what he had experienced and what had happened.  In the course of his cross-examination on the first day, he suddenly indicated that he was unwell and was on medication.  On the following day, he indicated he was in a better condition.  I accepted that, his demeanour consistent with what he claimed, but I had to make it absolutely clear that it was never an excuse to loosen the strict standard of proof, I found that some questions, including some even not immaterial, PW1 was so confused.  I found that his confusion was due to his medical condition, not from his deliberate act or lies.  I only accepted his evidence, and attached full weight on those areas which was not challenged by the defence and never been in any issue of the case.  I did not accept the rest of his evidence which was challenged by the defence. 

7.   For the reasons I have stated above, therefore PW2 was the only material witness on the material issue, PW2’s evidence wasalmost without corroboration or supporting evidence, so I have to very cautious on his evidence. I found that PW2 was an honest and truthful witness, I was satisfied that he told me the truth without mistake, misunderstanding or exaggeration.  His evidence was reasonable and he was unshaken under Mr Francis’s intensive cross-examination.  I accepted his evidence and attached full weight. 

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9.   Having considered the matter carefully, I was satisfied the following, inter alia, could established :

(1)   The incident happened as described by PW2. 

(2)   The Defendant did assault PW1 in a way as described by PW2.

(3)   It was a deliberate act, not an accident.

(4)    The assault caused injuries on PW1.

(5)   The injuries on the Defendant was a natural consequence of his struggle and subdued by both PW1 and PW2, not from any deliberate, unlawful act done by any prison officer. 

10. I was satisfied that it was AOABH; I was satisfied the prosecution had established their case beyond reasonable doubt, so I proceeded to convict.”

This appeal

5.Before me, the appellant criticizes the credibility of PW1 and 2.  He questions things like why someone having been sent to take him away, PW1 still had to take him to the stairs and why if he used his right fist to swing that punch, the left face of PW1 would be hit.  But these are issues of fact that must have come out at trial.  The appellant was represented they do not appear to me now as issues that could throw any doubt on the conviction. 

Conclusion

6.The appeal is dismissed. 

Ms Yang Mei Kei, Maggie, SPP of Department of Justice, for HKSAR

Appellant in person, present