HKSAR v. WONG SAI KIT

HCMA 373/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 373 OF 2001

(ON APPEAL FROM TWCC 3444/2000)

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J U D G M E N T

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1. The appellant, Wong Sai-kit, appeals against his conviction on 18 August, 2001, by Miss Kelly Shui, Deputy Magistrate, sitting at Tsuen Wan Magistracy, of an offence of wounding, contrary to section 19 of the Offences Against the Person Ordinance. The magistrate sentenced the appellant to 3 months' imprisonment for this offence. The appellant does not appeal that sentence.

2. At trial the appellant was represented by a counsel instructed under the Duty Lawyer Scheme. He elected not to testify on his own behalf, neither did he call any witnesses in his defence.

3. The charge arose out of a neighbourhood dispute on 23 September 2000, during the course of which the appellant is said to have used a chopper in a fight with a neighbour, and cut his left hand with it.

4. So far as a defence can be ascertained from the cross-examination of the two prosecution witnesses, it was that the neighbour had either come by his injury as a result of an accident or had deliberately injured himself. The magistrate, as she was obliged to do so, also considered, but rejected the issue of self-defence on the appellant's part.

5. The appellant, in bringing this appeal, relies on the general grounds of appeal set out in Form 101 of the Magistrates' Forms Rules. In his submissions before me this afternoon he refers to discrepancies in the prosecution evidence. These are discrepancies that were resolved at trial by the magistrate in her statement of findings.

6. He also says that the second prosecution witness was not present at the incident and therefore did not witness it. However, I notice from the transcript of her evidence that these matters were never put to her by his counsel at trial. And as he chose not to give evidence himself, there was no way the magistrate could have known of that allegation.

7. Like so many cases that come to the High Court on appeal, this was a case that revolved entirely around the credibility of witnesses, in this case the two witnesses for the prosecution. The person appointed by law to resolve issues of credibility is the trial magistrate. From her statement of findings it is quite clear that she understood the evidence given before her and that she applied it correctly. She was aware, and demonstrated so in her statement of findings, that the burden lay on the prosecution to prove the appellant's guilt on the charge that he faced.

8. The magistrate had the advantage, which I do not have, of having heard and seen the two prosecution witnesses give their evidence at trial. I have no authority to retry the case on the transcript. There is nothing in her statement of findings that indicates that the way in which the magistrate approached the evidence, or the case was in any way wrong. It is not for me to substitute any view that I may have on reading the appeal bundle for her view on the veracity and reliability of the witnesses.

9. I am satisfied that the magistrate's conviction of the appellant on the charges unassailable on appeal, and his appeal against conviction is therefore dismissed.