HKSAR v. YEUNG HOK SING

HCMA32/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 32 OF 2008

(ON APPEAL FROM KCCC 7113 OF 2007)

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J U D G M E N T

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1. The appellant who was unrepresented before me was convicted after trial at Kowloon City Magistracy of an offence of assaulting his wife, contrary to common law and section 40 of the Offences Against the Person Ordinance, Cap. 212.  He was sentenced to eight weeks’ imprisonment which sentence has now been served.  He was acquitted of a second offence of criminal intimidation involving the threatening of his wife with a knife.  He now appeals his conviction only.

2. The prosecution case consisted entirely of the evidence of the appellant’s wife, PW1.  She said that she was living apart from the appellant but that he had come to her premises on the occasion of the offence and they commenced arguing over divorce proceedings she had instituted.  During that argument the appellant punched her on the left side of her abdomen.  She then ran and hid in the kitchen of the premises and the appellant continued to threaten her.  She saw a knife on the kitchen table next to the appellant so she telephoned the police.  The appellant left before they arrived but was later arrested.

3. PW1 was taken to Kwong Wah Hospital where a doctor examined her and found an area of tenderness on her abdomen.

4. The appellant was represented by counsel at trial and gave evidence.  His case was that he had visited PW1 on the occasion of the incident to borrow $1,000.  She had refused the request and they then argued about various items of jewellery he had bought her over the years.  He threatened to take the jewellery back.  PW1 then ran into the kitchen and closed the door.  The appellant then left.  He denied any assault upon his wife.

5. The appellant before me complains primarily that he was convicted solely on the basis of PW1’s evidence, and that she was unreliable because she, at the time of the incident and at trial, was an outpatient at Kwai Chung Psychiatric Hospital.  In her evidence during cross-examination, PW1 had admitted this and said she suffered from depression.

6. It is clear that the issue the magistrate had before him was entirely one of credibility.  The evidence of PW1 was supported to some extent by the medical evidence as to the finding of an area of tenderness on her abdomen. 

7. The magistrate ultimately accepted the evidence of PW1 and rejected that of the appellant.  He said in this regard :

“20.   …  Furthermore, defence counsel invited me to say that I could place no reliance on the evidence of pw1 because of her mental health problems.  However, counsel was unable to assist me as to why pw1 was an unreliable witness merely because she was being treated for clinical depression.  Furthermore, pw1 was clearly anxious to be fair to the appellant and to distinguish between what she had actually seen and what she had assumed to have happened.  pw1 gave evidence in examination–in–chief that the words spoken by the appellant when she was hiding amounted to a ‘conditional threat’ only and she accepted in cross–examination that she had not actually seen the appellant hold the knife.

21.         There was no reason why I could not regard the witness not only as an honest witness but also as a reliable one.  There was good corroborative evidence to support the allegation of pw1 that she had been the subject of a blow in the form of the unchallenged evidence of the doctor who examined pw1 and found an area of tenderness on her left lower chest wall.  That finding was entirely consistent with the evidence of pw1.  It was not at all consistent with the evidence of the appellant.”

8. In my view those are sufficient and comprehensive reasons for accepting the evidence of PW1.  It may well be that PW1 was receiving treatment for clinical depression at the time of the incident but that was simply one factor relevant to her credibility.  I agree with the magistrate that her evidence and the manner of its giving did not suggest any fabrication or even particular animosity towards the appellant and had the indicia of a witness attempting to relate events truthfully.

9. The magistrate concluded :

“22.   Accordingly, I found pw1 to be an honest and a reliable witness with supporting evidence from the examining doctor.  I did not find the evidence of the appellant to be either honest or reliable.  I rejected his evidence.  I was entirely satisfied so that I was sure beyond a reasonable doubt that the prosecution had proved the appellant to be guilty of the offence in the charge.  I so found and convicted him thereof.”

I agree with the magistrate’s reasons for accepting the evidence of PW1 and with his finding in respect of the appellant’s guilt.

10. The appeal is dismissed.