HKSAR v. YIP SIU MAN, ALLAN

HCMA 34/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 34 OF 2001

(On appeal from Eastern Magistracy Case No. ESCC 3981 of 2000)

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REASONS FOR DECISION

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1. On 29 November last year, the appellant was convicted after trial by T.H. Casewell, Esquire, Magistrate, for the offence of assault occasioning actual bodily harm.

2. On 18 December, he was sentenced to 4 months' imprisonment.

3. He appeals conviction and sentence but is represented by counsel, Mr So, in his appeal against conviction only.

4. The incident giving rise to the charge and eventual conviction of the appellant took place in a hostel in Wanchai in which both the defendant and his alleged victim, called Mr Cheng, were residents. They shared a bunk bed. The appellant slept in the upper and Mr Cheng in the lower. It seems they were not on good terms.

5. During the morning of the incident, the appellant was sleeping in the communal living room. He was told by someone in charge to go and do that on his bed. As he made his way to the bunk to comply, Mr Cheng was sitting on his bed reading a newspaper. There was then the altercation which gave rise to the defendant being charged.

6. Mr Cheng, for the prosecution, said that he had seen and heard the appellant being woken up and told to sleep on his bed. When he approached, he suddenly punched him with force about 10 times on the face. He had not provoked the assault. He did not fight back.

7. Mr Cheng was treated for his injuries and photographed. A medical report and the photographs were produced. The report described lacerations, swellings and bruising on and about the right cheek and forehead, and above the nose. The nasal bone was fractured. There was also mild bruising and tenderness on the chest. The photographs were consistent with the findings of facial injuries. There was also the makings of a black eye.

8. The remaining witness for the prosecution was the police officer called to the scene. He said the appellant told him under caution that it was Mr Cheng who had assaulted him, not the other way around. He had struggled with Mr Cheng in the course of which Cheng had bumped his head on the bunk's ladder which caused his injuries.

9. The defence case was adduced by the appellant. Returning to his bunk, he said he and Mr Cheng bumped accidentally. He went to the washroom and as he emerged he was held by the neck from behind. He was able to turn. Mr Cheng was his assailant. They struggled. During the struggle, Cheng lost his balance and struck the ladder. He, too, produced a medical report which indicated multiple areas of tenderness and redness over the neck, trunk and four limbs. There were also bruisings and abrasions on the left leg.

10. It was on the strength of this evidence that the magistrate found the charge proved.

11. The issue is whether Mr Cheng's injuries resulted from a deliberate assault by the appellant. He found Mr Cheng to be "a credible, clear and emphatic witness" who was telling the truth about what happened. The medical evidence of the report and photographs was consistent with multiple blows and not with coming into a single contact with the bunk bed ladder. He found the appellant was lying. He paid heed to his medical report but rejected the appellant's account that the injuries were caused by the incident. He was satisfied beyond reasonable doubt that the appellant had assaulted Mr Cheng causing actual bodily harm.

12. Mr So, representing the appellant, has appealed on three grounds:

1) the learned magistrate erred in assuming upon no or no sufficient basis and/or evidence that Mr Cheng's extensive injuries cannot be caused by one single impact with the ladder which resulted or significantly contributed to him disbelieving the defendant;

2) the learned magistrate erroneously overlooked and failed to consider the presence of chest injuries on Mr Cheng which was incompatible with Mr Cheng's own evidence; and

3) the learned magistrate erroneously and arbitrarily determined without basis that the defendant's own injuries were pre-existing, while overlooking its compatibility with the defendant's case and the contradiction to Mr Cheng's evidence.

13. Before me, Mr So expanded on those grounds. As to the first, he said it would have been quite possible, given the contours of the face, for the multiple injuries Mr Cheng suffered to have been the result of a single impact with an immovable hard object like a ladder. The magistrate by making the assumption that the injuries could not have been suffered in this way was a wrong one leading him to the wrong deduction.

14. I do not agree. Like the magistrate, I have had the benefit of seeing the photographs. Common sense dictates a high degree of improbability that the injuries sustained were the result of a single impact against a ladder. They are in fact consistent as the magistrate found with the assault as described. On this ground the appeal fails.

15. I turn to the second ground. In essence, Mr So says that Mr Cheng, having failed to say how he came to be injured in the chest, casts doubt on his evidence of what happened overall. The magistrate, having overlooked this injury, thus failed to consider a serious shortcoming in his evidence.

16. Again, I find no substance in this ground. It is not uncommon for the victim of an assault, particularly a sudden and torrid one, not to have a full recollection of how and where he was struck. The fact that there was additional, superficial injury to the chest does not, in my view, cast doubt on the truth or accuracy of Mr Cheng's account.

17. I come to the third ground. The complaint stems from the magistrate's dealing with the appellant's medical condition when he wrote in his statement of findings that he "rejected the appellant's account that the items listed in [the medical report] were caused as a result of this incident". Taken in isolation, this might well have warranted criticism, namely of the court not accounting for injuries suffered apparently contemporaneously. But it has been extracted from a paragraph dealing with the appellant's credibility. That reads:

"I found the appellant to be untruthful. He had lied about how [Mr Cheng's] injuries were sustained. In forming this conclusion I did bear in mind the contents of the appellant's medical report and also the fact that when the [police officer] had arrived, he had shown him redness on his body. It was put by the defence that this undermined [Mr Cheng's] statement that he had not struggled or had any physical connection with the appellant."

18. Then follows the sentence complained of.

19. This clearly shows the magistrate did apply his mind to the appellant's condition. The final sentence represents his rejection of the appellant's account of how it happened. On this ground, the appeal fails also.

20. As the magistrate said, this case turned on the issue of credibility. In the assessment of the truth and accuracy of competing accounts, an appellate court will be slow to upset the findings of a trial judge who has had the opportunity of hearing and assessing the evidence firsthand.

21. In this case, the magistrate's approach cannot be faulted.

22. The appeal against conviction is dismissed.

We shall stand down for the appeal against sentence. Thank you, Mr So.

23. Having dismissed the appellant's appeal against conviction in which he was represented by counsel, I now return to the matter to deal with his appeal against sentence in which he represents himself.

24. He has put forward a number of factors which he invites me to pay heed to. He proposes that the appropriate sentence would be a suspended sentence saying it is more in line with sentences invoked in similar situations. He asks me to take into account the fact that he has already been detained for a period of about a month as a result of his having been arrested and charged, and has, as such, already been punished and prospectively punished enough.

25. He says the magistrate misled himself when saying that he had served a sentence of 20 years for murder, failing to recognise that he had in fact served somewhat less than that time, and for about three years before the commission of this offence, had stayed out of trouble. Thus, this offence should be regarded as an isolated incident for which a sentence of 4 months' immediate imprisonment would be, in the circumstances, excessive.

26. He asks that I exhibit mercy on his behalf to allow him to get on with his life uninterrupted by a further period of incarceration. He has made reference to other matters which I do not regard as material.

27. It is true the magistrate did take into account previous convictions for offences of violence, including that of murder for which he was sentenced to life imprisonment, later reduced to 20 years.

28. I do not see in the magistrate's reasons for sentence that he viewed this past record as a reason to enhance the sentence he was then to impose but rather as a reason not to regard the appellant as having been a man of good character. That view was enhanced by the background report he called for which is an unfavourable one, revealing that the appellant has had a history of poor relationships with residents and staff in the hostel where he was living when the offence, that is the subject of this appeal, was committed.

29. The assault itself was brief but violent. He broke his victim's nose. The other injuries that his victim suffered were graphically depicted in photographs produced. This was not, as I find, an isolated incident but a sustained attack and a serious example of the offence for which the appellant was charged, prosecuted and convicted.

30. It would be my duty to amend the sentence if I were to find it was manifestly excessive or wrong in principle. In the circumstances, I believe the term imposed of 4 months' immediate imprisonment is not one day too long or one iota too severe.

31. The appeal against sentence is dismissed.