HKSAR v. LAM CHI HUNG

HCMA666/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.666 OF 2006

(ON APPEAL FROM TMCC 1856 OF 2006)

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J U D G M E N T

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1. The appellant was acquitted after trial of one charge of ‘assault occasioning actual bodily harm’ contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212.  He applied but was denied costs by the magistrate.  He now appeals against that decision.

2. The following is what the magistrate said in his Statement of Findings :

“2.   On considering the question of costs, I shall set out the facts of the case and my findings.  The prosecution called 3 witnesses.  PW1 was the alleged victim.  The 2^nd prosecution witness was the arresting officer (‘PW2’).  The 3^rd prosecution witness was a police officer who was tendered for the defence for cross-examination (‘PW3’).

3.    The crux of PW1’s evidence was that on 14 April 2006, she was then the domestic helper under the employ of the Defendant.  On that day at about 9:15 am, when she was at the Defendant’s home, the Defendant scolded him on the matter concerning the cleansing work.  She was then holding a broom.  The Defendant pulled the said broom from her successfully and used the broom to poke her twice.  The 1^st poke was missed but the 2^nd poke landed on her right thigh.  As a result, bruise was found at her right thigh as reflected in her medical report as exhibited as P2.  She was then locked by the Defendant at the balcony.  Upon seeing another Filipino walking in the vicinity, she shouted for assistance.  Police officers, including PW2 and PW3, arrived subsequently.

4.    In examination in chief, PW1 described the act of assault as an overt act in which the Defendant pulled the said broom from her successfully and used the broom to poke her twice.  In cross-examination, PW1 agreed that both PW1 and the Defendant tried to pull the broom from each other and the descriptions of the act were akin to a tug-war.  Both of them struggled for the broom and tried to grab the broom from each other and in the course of the said struggling acts, one end of the broom landed on her thigh.

5.    I found that PW1 was prone to exaggeration.  At first, she described the act of assault as an overt act.  However, during cross-examination, she agreed to the suggestion of an accidental touch.  I found that her evidence was unreliable and could not be relied upon, as a result, the Defendant was acquitted.

6.   On an application for costs by Mr. Eric Kwok, S.C., he submitted that cost should follow event.  The prosecution submitted that the Defendant brought suspicion upon himself.  Mr. Kwok did not agree.  In my ruling on costs, I focus myself on the issue: whether in the circumstances of the case, the Defendant brought suspicion on himself.  I found that he did.  Firstly, the way the defence put to PW1 was that there was a struggle between PW1 and the Defendant for the broom and in the course of such struggle, one end of the broom landed on PW1’s thigh accidentally.  It was not a case that the Defendant had taken no action and the broom did not land on PW1’s thigh.  It was a case that the Defendant, being an employer, tried to grab the broom from PW1 and such act was entirely unnecessary and highly suspicious, giving one’s impression of possible attack.  By taking such actions of struggling for the broom which at one stage, one end of the broom landed on PW1’s thigh, his conduct brought himself into suspicion in that he might intend to get the broom to hit PW1.

7.    By reason of the matters aforesaid, I refused the application for costs by the Defence.”

3. I will say straight away that I agree the magistrate was wrong.  It was not contended that there was a dispute between PW1 and the appellant, or that it developed into something physical.  But wrenching a broom off somebody not prepared to release it is not a criminal offence.  Nor will it become one if the broomstick accidentally landed on the thigh of the other person.  The appellant was charged only because PW1 said he hit her intentionally.  PW1’s evidence was however disbelieved which leaves the appellant not the gentleman we expect male employers to be but not the suspicion that he had committed assault either.

4. The respondent does not argue otherwise.

5. The appeal is allowed.  The appellant will have his costs both here and below.