HKSAR v. CHOY SHIU BOR

HCMA969/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 969 OF 1998

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REASONS FOR JUDGMENT

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1. The Appellant Choy Shiu Bor was tried and convicted of one count of Assault Occasioning Actual Bodily Harm at the Tuen Mun Magistracy. The Appellant was given a fine of $3,000 and the learned Magistrate imposed a one month prison term suspended for 12 months. Mr Choy now appeals against both conviction and sentence.

2. The incident giving rise to the charge took place at about 5:40 pm on 11 August 1998 in Tak Ching Circuit in Tuen Mun. The victim who appeared at the trial as the 1st prosecution witness ("PW1") was walking around in the Tak Ching Circuit when he heard somebody shouting at him. He turned around and saw the Appellant who was a stranger to him. He continued to walk forward for a number of steps when he felt the Appellant putting his arm around his neck and he was pulled onto the ground. The Appellant then kicked him just below his left eye and then punched at his chest area, as a result of which the victim suffered actual bodily harm. Shortly after the assault, PW1 reported the matter to the police. He was subsequently taken to the Tuen Mun Hospital where he was treated and discharged on the following day.

3. The medical findings which were admitted under s.65B of the Criminal Procedure Ordinance stated that PW1 had suffered "left periorbital swelling and a 0.5 cm laceration over his left lower eye lid". In addition, there was localised tenderness over the right lower chest wall. When cross-examined, PW1 admitted that he had previous convictions for drug offences and for robbery, theft and assault.

4. PW2, a Police Officer confirmed that he was approached by PW1 who made the complaint to him. Having received the complaint, he accompanied PW1 to the Tak Ching Circuit and arrested the Appellant. Under caution, the Appellant denied assaulting PW1, claiming that he had slipped and fell by himself after being chased by him.

5. Mr Massie, for the Appellant, advanced four grounds of appeal the first of which was that the conviction was against the weight of the evidence. The second ground was that the medical evidence did not support PW1's account of how he was assaulted by the Appellant. The third ground was that the learned Magistrate appeared to have reversed the burden of proof and thereby requiring the Appellant to explain the victim's injuries and the fourth ground was that the learned Magistrate failed to give sufficient weight to the evidence of the Appellant who until then had no criminal record.

6. Dealing with the third and fourth grounds first, the learned Magistrate quite properly, at p.34 of the transcript of proceedings, made the following observations in respect of the Appellant's clear record.

"In coming to these conclusions I have taken into account the defendant's evidence. The defendant has a clear record which is relevant both as to propensity and credibility."

7. The Appellant elected to give evidence at his trial and his version of the account was that he and his wife were in the business of collecting recycling material for the Environmental Protection Department. Several days before the incident, he had lost some of the metal cans he collected. At the time of the incident, he saw the victim behaving suspiciously in the vicinity. He approached the victim with a view to confrant him over the subject of the missing cans. According to the Appellant, PW1 started to run away but he slipped and fell onto the ground and in so doing he hurt himself. The injuries sustained were the result of his fall rather than him being assaulted by the Appellant.

8. The learned Magistrate found the victim, to be an honest and reliable witness. He rejected the Appellant's account and he was satisfied that the attack was prompted by the Appellant's suspicion that the victim had stolen from him previously. Throughout his Statement of Findings, the learned Magistrate had made references that it was for the prosecution to prove the guilt of the Appellant. Nothing in the Statement of Findings could give rise to the impression that the learned Magistrate had reversed the burden of proof. I am of the view that there are no substance in grounds 3 and 4 of the appeal.

9. Turning now to the second ground concerning the medical report, the content of which was not challenged. The report refers to injuries on the periorbital region under the eye lid and also tenderness on the victim's chest wall. Mr Massie submitted that the victim's evidence was that he was kicked 7 to 8 times on his chest by the Appellant. Had that been true, the injuries over the chest region must have been more serious than what is being observed as simply tenderness. The fact remains, however, the victim did suffer injuries and in his evidence he gave reasons as to how those injuries were sustained as a result from the assaults by the Appellant. The Magistrate found that the Appellant was the attacker.

10. On the evidence before the learned Magistrate, he was entitled to come to the conclusions as he did and found the Appellant guilty of the charge. In coming to his findings, the learned Magistrate had clearly rejected the Appellant's explanation that he fell and injured himself. There were ample evidence to support the learned Magistrate's findings. There is again no substance in grounds 1 and 2 of the appeal against conviction.

11. For the reasons given, the appeal against conviction is dismissed.

12. On the issue of sentence , the Appellant was aged 50 at the time of the offence and he has a clear record. Mr Massie urged upon this Court that a prison sentence was not warranted. In passing sentence, the learned Magistrate observed that this was a nasty attack which could have resulted in much more serious injuries. The Appellant was further criticized for taken the law into his own hands. I share the views of the learned Magistrate. The sentence imposed is neither manifestly excessive nor is it wrong in principle. The appeal against sentence is also dismissed.