HKSAR v. TAM KAM CHEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 418 OF 1997

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J U D G M E N T

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1. The Appellant in this case appeals against his conviction in respect of two charges, one of Assault Occasioning Actual Bodily Harm, the other Criminal Intimidation. There is also an appeal against sentence of a fine of $2,500.00 on the first charge, a fine of $1,000.00 on the second charge, costs of $2,500.00 and compensation of $1,000.00.

2. The assault and the intimidation arose from an incident at work. The Defendant was having a discussion or argument with a colleague, when another colleague, the victim of the assault, interfered verbally and the Defendant then attacked him in a fairly substantial physical assault. This resulted in injury to the complainant.

3. The magistrate took into account when he considered his verdict the fact that there was interference by the victim and also a degree of provocation, and that was clearly before the magistrate's mind at the time he considered his verdict. He gave full weight to that and he concluded, as he was entitled to, that the Defendant's retaliation went far beyond any form of justifiable self-defence. The magistrate also took into account at the time he made his findings, the clear record of the Defendant. This he took into account in two ways, as to the likelihood of his committing the offence and also in terms of the credibility of the Defendant in giving evidence.

4. This appeal was originally fixed for the 6th day of July 1997, on which date the Appellate asked for an adjournment, saying that he wished to adduce evidence regarding his mental condition which he referred to as, "having had since a young age." The appeal was adjourned to enable the Appellant to obtain a medical report; that report was furnished only at the appeal. It appears the Appellant wishes the court to take note of his purported condition by way of additional evidence and I have noted with care the contents of that report. However, although it indicates that the Defendant had been treated since 1987 for symptoms of anxiety, insomnia and feelings of being tense and unhappy and has been given some treatment, that his condition is unlikely to have had any effect on his particular behaviour at the time of this offence. I note also that Appellant stopped attending out-patient treatment after 1994 and did not go back for any treatment until sometime after these offences had been committed. I have considered whether or not this report would have made any difference to the magistrate, but feel it would not have, particularly as the Appellant said this morning that he chose not to continue with medication that he had been given for his symptoms. I can see no ground on which this conviction should be upset and I affirm the conviction and dismiss the appeal against conviction.

5. In respect of the sentence I can see nothing inappropriate about the size or the nature of those fines. In respect of the compensation, this was a serious assault and it required that medical treatment be obtained on more than one occasion by the victim. For that reason, I dismiss the appeal against sentence also.