R. v. CHAU YU YUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.772 OF 1996

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J U D G M E N T

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1. This is an appeal against two convictions. On 6th March 1996, the appellant was found guilty after trial by a magistrate of assault occasioning actual bodily harm, and of resisting a police officer in the due execution of his duty. The offences are said to have taken place on 6th August 1995.

2. The prosecution case is very straightforward. The complainant is known to the appellant. Apparently, the appellant was under the firm impression that the complainant had on several occasions entered his home, and there stolen property. On the day in question, the two met in a passageway in Yuen Long and the appellant accused the complainant of having been in his home. He then used an umbrella with which he assaulted the complainant. The complainant suffered a number of injuries including one to his forehead. The complainant reported the matter to the police who visited the appellant's home. There, according to the prosecution evidence, one of the officers announced that the appellant was under arrest and made to touch his shoulder but the appellant pushed the officer away. When the officer took hold of the appellant, the appellant sought to resist constraint.

3. At trial, the appellant gave evidence. He said that the complainant merely grabbed him by the neck for no reason and then ran away. He, the appellant, poked the complainant with his umbrella to keep at arms length, fearing a further assault. He did not know how the complainant suffered the injury to his forehead. As to the second charge, his case was that the officer twisted his arm when he wanted to get changed and that in response he pushed the officer away.

4. In support of his appeal, the appellant has prepared a detailed and careful letter which has been translated to me. I have also read the transcript of the evidence and the magistrate's Reasons for Verdict.

5. It is important that the appellant understands that the hearing before me is not a rehearing. It is an appeal. I do not have the advantage of seeing and hearing the witnesses. The magistrate had that advantage. In any event, he believed the evidence of the complainant and of the police officer but he disbelieved the appellant. In the circumstances which I have described, the conviction was inevitable.

6. I note that after conviction a number of psychiatric reports were commissioned. Both speak to the fact that this appellant suffered from a psychotic illness. One says that at the time of the offence he was under the influence of mental illness which impaired his judgment and self-control. I have been exercised about these findings in relation to the question whether the requisite mens rea was or might have been affected. There is no suggestion however that the appellant was suffering under a delusion as to the circumstances in which the assaults took place, such as would, if true, amount to a defence. Nor is it suggested that he did not know the nature and quality of the acts which have founded the convictions, nor that he did not know that what he was doing was wrong. Furthermore, no defence along any of these lines was raised.

7. There is no basis in the circumstances upon which I could probably set aside this conviction, and the appeal is accordingly dismissed.