HKSAR v. LEUNG YUNG TIM

HCMA 1087/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1087 OF 2005

(ON APPEAL FROM ESCC 3939/2005)

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J U D G M E N T

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1.  The Appellant was convicted after the trial of one charge of ‘Assault Occasioning Actual Bodily Harm’.  He now appeals against conviction.

2.  The prosecution at trial called a total of three witnesses.  PW1 gave evidence that she was in a food shop, and she was making her way to the counter to make payment, when suddenly the appellant kicked her.  She then went to a corner to cry, then she faced to the defendant and asked why he kicked her.  She said that the appellant said something in Chinese and then moved towards her and kicked her again. 

3.  Police arrived at the scene, and then the defendant was arrested.  PW2 was an independent witness, who was also inside the shop and witnessed the appellant kicking PW1.

4.  PW1 & PW2 were cross-examined by defence counsel and both witnesses denied that they had known each other prior to this offence and they denied having concocted their evidence against the appellant.

5.  PW3 was the police constable who arrived at the scene, he said that upon arresting the defendant, the defendant denied that he had hit PW1.  The officer also denied the fact that the defendant had ever mentioned to him that PW1 had hit herself on the side with her own shoes nor did the defendant tell him that PW1 had bumped against him.

6.  Upon the Magistrate’s ruling that there was a case to answer the defendant elected to give evidence.  His evidence was that PW1 had stared at him in an unfriendly manner before bumping against him intentionally.  There was an argument, and then PW1 had dialled the telephone and also spoken to PW2, and PW2 had pushed him and he scolded PW2.

7.  The defendant also gave evidence that when the police officer arrived at the scene, he had complained that he was bumped, but the police officer ignored him.  When he refused to produce his identity card, more officers arrived.  The defendant denied that it was PW3 who had arrested him.  Also, very strangely, the defendant denied that he had ever given instructions to his lawyer to put to the prosecution witness that PW1 had taken off her own shoe that she used to kick herself.

8.  The learned Magistrate, after hearing what the witnesses had said and analysed the evidence of each prosecution witness came to the conclusion that the prosecution witnesses were honest and reliable witnesses.  Then the learned Magistrate considered the defendant’s evidence and the learned Magistrate had set out why he did not believe the defendant in his Statement of Findings in paragraphs 16, 17 and 18.  The learned Magistrate had also noted that it did appear strange to him that the defendant should hit PW1 for no good reason.  And he came to the conclusion that it was something that only the defendant himself knew.  So at the end of the day, the Magistrate rejected the evidence of the defendant  as being truthful.  He accepted the prosecution witnesses’ evidence and convicted the appellant.

9.  In support of his appeal, the appellant who appeared unrepresented, had written out his grounds of appeal to this court which had been translated.  Basically, his grounds of appeal challenged the evidence of the prosecution witnesses.  He repeated again that the witnesses were not telling the truth. 

10.  He also questioned the fact that PW2 would have been able to see him kick PW1 finally the appellant also submitted that PW1 and PW2 had made up the story against him in order to show solidarity among them and he urges this court to redress the injustice that he had suffered.

11.  The appellant also questioned the evidence of PW3 and claimed that he had been ill treated by the police officers back at the police station and that he had been forced to give his finger prints.

12.  Now I note that at the trial the appellant had been represented by a lawyer from the duty lawyer service, and the appellant had given evidence himself before the learned Magistrate.

13.  The learned Magistrate is an appropriate person to make the findings of fact as to whether a witness is to be believed or not, because the learned Magistrate had an opportunity to observe the witness giving evidence and also being cross-examined.

14.  The appellant’s ground of appeal basically is that the finding of fact by the learned Magistrate was wrong. 

15.  I have read the learned Magistrate’s thorough reasons and I also read his Statement of Findings.  The learned Magistrate has gone through very carefully the evidence of each witness to come to his conclusion.  He had also very carefully considered the evidence of the defendant and very properly came to the conclusion that he did not believe the defendant.  I therefore see no basis for affecting the learned Magistrate’s finding of fact.

16.  There was ample evidence on the evidence of the prosecution witnesses to convict the appellant.  I see no merit in his appeal and the appeal is therefore dismissed.