R. v. WONG KUI CHIU

MAGISTRACY APPEAL NO. 1497 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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J U D G M E N T

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1. The appellant in this matter was convicted after trial on a charge of Assault Occasioning Actual Bodily Harm. The brief facts were that on 8th September 1994 the appellant was in a vehicle being driven by his friend, who was DW2 in the trial, and they had obtained permission from a watchman to park in Carlton Court at 210 Argyle Street.

2. There was no dispute that they had overstayed the time given to them, and the evidence was that when they returned to the car the complainant, who was not the watchman who had given the permission, took it upon himself to direct words of abuse at them. The complainant was employed as a watchman in the building and was a gentleman in his seventies.

3. The evidence was that the appellant who was at that time in the vehicle got out of the vehicle and spoke with the complainant. There was a conflict between the evidence of the complainant and that of the appellant as to what was said at the time. The complainant alleged he was pushed by the appellant, that he staggered back, fell and broke his wrist. The appellant and DW2 in evidence said that the complainant had aimed a kick at the appellant, that the appellant had warded him off and as a result the complainant had overbalanced and fallen.

4. The magistrate therefore had two versions of events before him and the decision in the case depended upon his assessment of the credibility of the witnesses that he had heard. He made reference in his Statement of Findings to some discrepancies between the evidence of the appellant and that of his witness, DW2. Mr Watson who appears for the appellant has argued that these inconsistencies were more apparent than real. But a study of the transcript shows that these discrepancies do exist. They were not discrepancies of major importance but they were such that the magistrate was assisted in his decision as to where the real truth lay by reference to them. He came to the view that the complainant was an honest witness who had given him a true account of what had taken place. On the evidence that he had before him, and having heard the witnesses, that was a decision to which he was entitled to come.

5. This being a case dependent on credibility, there is nothing in the grounds of appeal upon which I could say that the magistrate was wrong to come to the conclusion that he did. The appeal must therefore be dismissed.