HKSAR v. So Yam Lung

HCMA863/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 863 OF 2010

(ON APPEAL FROM TWCC 2607/2010)

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Before: Hon Line J in Court

Date of Hearing: 15 February 2011

Date of Judgment: 15 February 2011

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J U D G M E N T

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1.This is an appeal against a conviction for an assault occasioning actual bodily harm.

2.It arose out of an incident that occurred on 4 August 2010 at a shopping centre in Kwai Chung.  The appellant was with his wife, going down an escalator in the shopping centre.  The victim of the assault was behind him.  His evidence was to the effect that the appellant was using foul language and saying someone had looked at his wife and he would beat that person.  He went on to say that when they reached the ground floor, words were exchanged and that a quarrel started; that the appellant approached the victim and pointed at him, his hand being about 2 inches away from his glasses; that he fended off the appellant’s hand and the appellant then punched his face.

3.There was some agreed medical evidence. On examination three hours later, swelling was found over the left side of the victim’s face and there was a mild abrasion over his left upper gum.  There was no dispute as to what was said by the appellant to the police about the incident in the presence of a lawyer, which was “Ah Sir, I didn’t hit him.  It was he who hit my right forearm with his left hand.  I reacted instinctively by pushing him with my hand in self-defence.”

4.The appellant gave evidence.  He said he had been speaking quietly to his wife, using no foul language and that there were words exchanged at the ground floor; that he did walk after the victim and stretched out his right arm and pointed at him.  He denied that he was as close as the victim alleged, saying they were about at least a foot away from each other.  He said in his evidence at this juncture the victim hit the outside of his stretched right forearm.  He could not say if it was a punch or a slap, due to the fast speed at which it occurred.

5.He denied thereafter hitting the victim.  He said that he could feel that he was pulled towards the victim and he said that it was possible that his hand came into contact with some part of the left side of PW1’s body, somewhere between his upper chest and his eyes. In his case, there was an agreed fact that there was redness on his right forearm.

6.One can readily appreciate that the issue at the trial was which man was telling the truth and Miss Chow, who appears for the appellant today, realistically concedes that to be the case. In effect, the magistrate approached the case on the basis that the prosecution had to prove that deliberate punch to the face or not, and I agree with that approach.  The magistrate believed the victim.  Conviction followed. 

7.Despite a lot of hard work by the appellant’s counsel today, nothing she has been able to say makes me judge that the magistrate was in error in coming to that conclusion.  Of course, the magistrate had the advantage of seeing and hearing the witnesses, and whilst that is not conclusive, it does take something to upset the consideration.

8.The appellant sought to do that in a variety of ways by saying that the judgment of the magistrate was wrong.  Let me turn to the main points that were made.  In his evidence, the victim had said at first that it was his right cheek that was hit and not his left cheek. He undoubtedly made a mistake because the findings of the doctor that the swelling was on the left side, on an examination only three hours later, tell one that that must be the case.  Does that mistake make me doubt the man’s honesty?  It does not and it did not make the magistrate doubt it.

9.The next point was that he had exaggerated the force of the blow and the effect upon him.  I am willing to proceed on the basis that that was so.  But what magistrates experience when they try many of these small cases is that such exaggeration by the victims of physical violence is commonplace, because it is a shocking experience to be punched in the face, even if the punch is not particularly hard, and that is so especially if you are not expecting it, as this victim claimed.  Again, the exaggeration, such that there was, was not of an extent or nature that would have driven me to doubt his honesty and the magistrate clearly was of the same view.

10.The point was made that the appellant did not run away and whilst he was waiting there for the police sought to find out from the security guards about any CCTV that might have been running and he was looking for witnesses to support his side of the case.  Of course, the magistrate was aware of that.  But the fact was that immediately after this had happened, security guards were present and the scope to run away was obviously not very great.  No case is without points that can be made for either side, but this is not such a point that would have led me, in combination with the other points, to make a finding hostile to the respondent’s case on credibility.

11.Perhaps at the forefront of the appeal was the fact that a CCTV camera was running and recording the area where these events occurred and the assault does not appear on the tape that we have and which has been played in court.  It was not a camera that ran without interruption.  It took photographs at intervals and unfortunately the crucial events of this case, which occurred very quickly, occurred in such an interval.  One can see on the tape the parties squaring up to each other. There is then obviously a gap and the next photograph shows distance between the parties and the victim holding his face.  So frankly, the CCTV tape is no help as to what happened:  in the sense of trying the issue, was there a deliberate punch or was the appellant somehow pulled toward the victim, his hand striking him accidentally.  The magistrate was well aware of the tape and its contents.  She did not find it helpful on the crucial issue.  I share her view.

12.The final point raised by the defence was to emphasise that self-defence was in issue here.  The magistrate was well aware of that and found that the blow was a deliberate blow and not one stuck in self-defence.  It was conceded in the appeal that if the punch was deliberate and delivered in the way described by the victim, self-defence would not run.  That was a realistic concession and the finding by the magistrate that it was a deliberate punch is one I uphold.  It puts an end to the issue of self-defence. 

13.Standing back from the matters of argument that I have just rehearsed, the prosecution case at trial had the foundation that there was a finding by a doctor of an injury consistent with that which the victim described.  The issue at trial was, was it deliberate or was it in some way accidental, the appellant having been pulled forward.  I can see no reason to upset the finding of the magistrate.  Accordingly, the appeal against the conviction is dismissed.

Ms Samantha Chiu, Senior Public Prosecutor (Ag.) of the Department of Justice, for the Respondent

Ms Millie Chow, instructed by K Y Lo & Co., for the Appellant