HKSAR v. Lee Steven Jones
|
HCMA347/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 347 OF 2011 (ON APPEAL FROM TMCC 354 OF 2011) ------------------------ BETWEEN
------------------------ Before: Deputy High Court Judge Lok in Court Date of Hearing: 8 December 2011 Date of Judgment : 3 January 2012 ------------- JUDGMENT -------------- 1.On 15 March 2011, the Appellant was convicted after trial by Magistrate, Mr Steven Smount, of a count of assault occasioning actual bodily harm, contrary to s.39 of the Offences Against the Person Ordinance, Cap. 212, and the learned Magistrate sentenced her by way of a fine of $1,500. 2.This was a one-against-one cross-allegation of assault between the Appellant and the alleged victim, a male bus driver. Only the Appellant was charged. She now appeals against conviction on the ground that, in gist, she had not assaulted the victim at the driver’s seat. Quite on the contrary, the victim got out of the bus and hit her a few times. Prosecution’s case 3.According the testimony of the victim, he and the Appellant were acquaintances who had gone out for drinks from early to mid 2007 and he had been to her home, however he denied trying to develop an intimate relationship with her. The Appellant frequently came to disturb him and he had been avoiding her. 4.At 0140 hours on 1 January 2011, while the victim was driving, he felt that somebody was throwing stone or sand at his bus. He then saw the Appellant on the pavement. The victim’s bus was stationary and he then took out a digital camera to shoot the Appellant on video mode. 5.The Appellant approached the bus and used the emergency switch to open the front passenger door and boarded the bus, punching the victim for 3 times respectively once at his left eyebrow and twice somewhere near that eyebrow. The victim got out of his seat and ran out of the bus. 6.The Appellant chased after him and tried to hit him but failed. She then tried to leave. The victim shouted “robbery” and the Appellant was stopped by a passerby and was subsequently arrested by the police arriving at scene. 7.Upon medical diagnoses, the victim was found to have suffered injuries of haematoma with abrasion over left forehead. Defence case 8.The Magistrate ruled there was a case to answer. The Appellant elected to testify and called no defence witness. Her defence was basically self-defence. 9.The Appellant testified that she and the victim had been acquaintances since 2005 and he had asked her to hang out with him and had tried to get more intimate with her. He sexually harassed her and had even hit her on a number of occasions. 10.On the night in question, when the Appellant was walking home, she saw a torch light shining on her. She searched for the source and saw the victim inside his bus. She walked on and the victim drove after her whilst using a big camera to shoot at her. 11.Later the victim got off the bus and started to scold and hit her, hitting her face and then kicking her stomach. She fended off his blows with her forearms which were hurt as a result. He also slapped both sides of her face. She pushed him off and hit his head once with a clenched fist to protect herself. 12.She went to hospital later that day as she felt dizziness and both sides of her face were painful. Upon medical diagnoses, the Appellant was found to have mild bruises over both forearms. The Magistrate’s findings 13.The Magistrate found that the victim was a credible witness. 14.The Magistrate found that the testimony of the victim was not discredited in any of the areas as suggested by the defence, including: (i) the failure to record on his camera the Appellant boarding his bus and the assault; (ii) his failure to prevent any of the blows; (iii) the victim managed to get out of the bus without being subject to further violence; (iv) his failure to view the alleged footage he had filmed after the incident; (v) the victim being a seated middle-age man was punched by an able-bodied young woman; and (vi) the victim shouting “robbery” when no robbery in fact had taken place. 15.The Magistrate further found that the victim’s evidence was consistent with the medical evidence. 16.As for the Appellant’s evidence, the Magistrate rejected it with reasons given. In particular, the Magistrate found that the bruises on the Appellant’s forearm were not caused by the victim. 17.The Magistrate was satisfied that the prosecution had proven beyond reasonable doubt that the Appellant had assaulted the victim occasioning him actual bodily harm and that the Appellant was not acting in self-defence in doing so. Merits of the appeal 18.I agree with Ms Ng, Acting Senior Public Prosecutor, that this is a simple case which depends on the credibility of the prosecution witness and the Appellant. 19.It is clear that the Magistrate had considered the Appellant’s version of event. He was also aware of the clear record of the Appellant and directed himself accordingly. Not only the Magistrate had analysed the defence case in detail, he had also given his reasons for disbelieving the assertions of the Appellant. 20.The Appellant’s ground of appeal is somewhat a reiteration of her defence. The Appellant claims that this was only a dispute between friends and the conviction is unfair to her. Further, she submits that “there were many suspicious points which were unreasonable, [illogical] and lack of common sense.” 21.Firstly, the Appellant submits that if the victim found that there was something hitting the bus, he should have got off bus to ascertain the extent of damage, rather than sitting in the driver’s seat as what the victim alleged he did at the time of the assault. But in my judgment, the Magistrate had fully considered the evidence of the victim and accepted him to be a credible witness. There was also nothing illogical for the victim to have behaved in the way he did at the time of the assault, and so there is no merit in such complaint. 22.Secondly, the Appellant complains that as the police had not carried out an examination to ascertain whether her fingerprint could be found on the emergency switch of the bus, there was “no strong evidence to prove” that she had boarded the bus. However, there might be a lot of reasons as to why the police had not carried out such examination. Since the defence had not put forward such challenge at the trial, the appellate court should not attach any weight to such issue which had not been canvassed at the trial. 23.The Appellant’s third complaint relates to the function of the emergency switch. Again, the defence had not raised any issue relating to the function of the emergency switch at the trial, and so the appellate court should not deal with such challenge in the appeal. Furthermore, it seems that the Appellant has confused the issue: the “half door” was the door next to the driver’s seat, and not the front passenger door of the bus. 24.The Appellant also complains that she was unfairly treated because the police had ignored her request for medical examination. However, there was a medical report produced by the defence showing that she had been examined by a government doctor shortly after the incident, and the Magistrate had taken into account the contents of such report in reaching his verdict. Hence, there is no basis for such complaint. 25.The Magistrate had thoroughly considered the evidence and did not err in making the relevant findings. The Magistrate had the opportunity to observe the demeanor of the witnesses who gave evidence in court, which the appellate court does not have, in accessing the credibility of the witnesses. He accepted the evidence of the prosecution witness to be the truth. 26.The Magistrate’s decision was made after due consideration and analysis. Based on his findings, the offence in question was proved beyond reasonable doubt. There is nothing that renders the conviction unsafe or unsatisfactory. There was also no material or any irregularity in the conduct of the trial. Conclusion 27.Based on the aforesaid, there is no merit in the Appellant’s appeal against conviction and the same is therefore dismissed.
The Appellant in person, present Ms Hermina Ng, Ag. SPP of the Department of Justice, for the Respondent | |||||||||||