HKSAR v. YIP KWOK-SUN

HCMA 60/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 60 OF 2002

(ON APPEAL FROM NKCC 6314/2000)

____________

____________

_______________

J U D G M E N T

_______________

1. The appellant was convicted at his trial in the North Kowloon Magistrates Court on 28 December 2001 of an offence of common assault and he was fined. He did not give evidence at his trial but called one witness.

2. He appeals against his conviction upon two grounds which, in reality can be expressed thus:

1) The magistrate was wrong to reject the evidence of the appellant's witness and, in his statement of findings, failed to give sufficient reasons for so doing; and

2) the magistrate failed, in his statement of findings, to explain why he accepted that when the victim of the alleged assault said that he felt pain as a result of it, that was the truth.

3. What the magistrate concluded as regards the first of those 2 matters in his usual detailed and helpful statement of findings was this:-

"I did not believe the evidence of DW1, notwithstanding his clear record. I found him to be an evasive witness. He was very excitable and I had to request him to calm down whilst he was giving evidence. I was sure that he had behaved in the manner described by PW1 on the day in question and that it was his verbal abuse that had led to the situation getting out of control.

I was satisfied so that I was sure that the defendant deliberately assaulted PW1 in the manner described by PW1 and I was sure that the defendant was not acting in self-defence or in defence of DW1."

4. It is true that the learned magistrate did not, in his statement of findings, deal specifically with the 'victim's' claim to have been in pain as a consequence of being pushed on the chest by the appellant, beyond saying that he accepted his evidence to that and to other effect. There was no need whatsoever for him to have gone beyond that conclusion despite the suggestion from Mr Chan, who appears for the appellant, to the contrary.

5. There is, with respect, nothing at all in Mr Chan's apparent suggestion that it is inherently unlikely that a 'push' with an open hand onto somebody else's chest will cause pain and that therefore a magistrate is obliged to give reasons for his view to the contrary.

6. There is nothing at all in this appeal and it is dismissed.