HKSAR v. WONG YUEN FAI

MA781/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 781/97

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial before a magistrate of a charge of assault occasioning actual bodily harm. He was placed on probation for a period of 12 months with conditions and his mother was ordered to pay compensation in the sum of $1,000. He now appeals against his conviction.

2. The prosecution case consists of the evidence of the victim and two other witnesses who were present at the scene. It was also produced by consent a medical report and a record of interview of the appellant in which he denied hitting the victim and alleged that he was punched and kicked by another youth.

3. The victim gave evidence that at 3:30 p.m. on 13th January 1997, he went with Lau Ka-shing, who was P.W.2 to a McDonald's Restaurant where the appellant together with six other people approached him and asked whether he had taken part in assaulting the appellant earlier. The victim was assaulted by some members of the group at the restaurant and then taken by the appellant and his group to a hillside where all seven of them including the appellant assaulted him by fists and kicks. The appellant was identified in an identification parade on 12th February 1997.

4. The appellant did not give evidence but called three witnesses. Their evidence was to the effect that the appellant did not assault the victim. In fact it was the appellant who was assaulted by Lai Kwok-heng and two other boys at the McDonald's Restaurant. They saw the appellant leave in a public light bus to Yuen Long at 3:45 p.m. They also said that on 17th January 1997 while he and the other two defence witnesses were in the school playground, Lai Kwok-heng and Lee Man-kit approached them and asked the appellant to cancel his report to the police against Lai Kwok-heng and in return the victim would drop his complaint to the police against the appellant. Their evidence was identical.

5. The magistrate considered all the evidence. He rejected the evidence of the defence witnesses and accepted the evidence of the prosecution witnesses.

6. The arguments advanced on appeal on behalf of the appellant is that the magistrate had failed to consider and resolve the contradictions and discrepancies of the evidence of the prosecution witnesses and in particular the evidence of the victim and his witness statement to the police. I do not agree. As a matter of fact, contradictions and discrepancies were matters that the magistrate had borne in mind from beginning to end. He considered these aspects in considerable detail at p.5 and p.6 of the statements of findings. For example, he said at p.5: "I was aware of the discrepancies between P.W.1's evidence and his witness statement" and went on to deal with them.

7. In my view, there is no merit in any of the arguments advanced by counsel for the appellant. I am satisfied that the conviction is neither unsafe nor unsatisfactory. The appeal is dismissed.