The Queen v. Tsui Chi Yuen

CACC000861/1983

BETWEEN

Coram: Jones J.

Date: 28th July, 1983.

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JUDGMENT

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1. On the 7th June 1983 the appellant was convicted at the San Po Kong Magistracy of a charge of assault occasioning actual bodily harm contrary to Section 39 of the Offences Against the Person Ordinance Cap. 212. He was sentenced to a term of imprisonment for six months suspended for two years and ordered to pay costs of $1,000 and compensation of $2,500. The appellant appeals against his conviction. The appellant was also charged with possession of an offensive weapon contrary to Section 17 of the Summary Offences Ordinance Cap. 228 viz a knife about 4 inches in length, but was acquitted on the grounds that it was not an offensive weapon per se and he had given a reasonable explanation for its possession to the Police.

2. The appellant who is aged 20 lives with his parents at a flat in Baldwin Court, Argyle Street. The occupants of the flats have a Residents Association. Mr. So Wai Chi the victim is the secretary and Mr. Cheng Chi the chairman. The victim is aged 44, and Mr. Cheng 60.

3. At about 10.30 p.m. on the 23rd April 1983 the victim, Mr. Cheng and other members of the Association were in the car park issuing notices to car owners requesting them to display their parking permits on their vehicles. The victim noticed a parked Mercedes in No. 7 space and intended to affix a notice to the car. He was filling in the notice on the roof of the car when the appellant approached and asked him not to write on the roof of the car as he would cause scratches. Mr. Cheng described the appellant's manner as "fierce". An argument ensued which culminated in an attack by the appellant upon the victim. The victim believed that the appellant held a small knife 3-4 inches in length. Mr. Cheng said the object was of that length and shiny.

4. The learned magistrate concluded that the appellant had been holding a knife, but irrespective of what weapon was used it was thrust at the victim's face. The victim also said he was punched in the chest. The victim received injuries to his ear and right arm. The victim was treated for his injuries at the Kowloon Hospital and had three days sick leave. Mr. Cheng corroborated the victim's evidence that the attack was unprovoked.

5. The appellant elected not to give evidence.

6. Mr. Sedgwick who appeared for the appellant directed my attention to certain discrepancies in the evidence. In particular, the appellant's statement to the police officer did not accord with the evidence that he gave at the trial. These discrepancies were more apparent than real. It was also submitted that the evidence of PW2 should be looked at carefully as he had been working closely with the appellant. I do not consider that the learned magistrate failed to do so.

7. Although the appellant did not give evidence as was his right, it is clear that the issue raised on his behalf was one of self defence. During the cross-examination of PW2, it was indicated that at one time PW1 was attacking the appellant, but later his evidence was to the contrary.

8. Mr. Sedgwick argued that it was a four to one situation and that the evidence for the Crown was exaggerated. However, this was not borne out by the evidence.

9. The victim is slight build whereas the appellant is a young man of strong build. The learned magistrate quite properly rejected the issue of self defence that was raised by the appellant. He believed the evidence given by the prosecution witnesses which was overwhelming. The attack by the appellant may have been out of character, but as described by the learned magistrate it was unprovoked and vicious.

10. The appeal is dismissed.

Representation:

Mr. A.W. Sedgwick (Kwan & Kwan) for Appellant.

Mr. F.C. Whitehouse (Legal Department) for Crown/Respondent.