HKSAR v. CHOW KOON TUNG

HCMA74/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA74 OF 2000

(ON APPEAL FROM NKCC5858/1999)

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J U D G M E N T

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1. The appellant was convicted on 10 December 1999 of one charge of common assault and one charge of indecent assault. He was sentenced on 3 January 2000 and was fined the sum of $3,000. He now appeals against that conviction.

2. The magistrate found that in the early hours of 26 September 1999, a Miss Leung and two others were walking near the junction of Pei Ho Street and Fuk Wa Street, Shamshuipo and were approached by the appellant. The appellant asked one of the males with Miss Leung : "Are you going to chop me?", and was told :"No." The appellant kept on scolding them and asked whether he was going to be chopped. A suggestion was made and the police were called and, at that point, the appellant slapped each side of the face of Miss Leung. The appellant was then grasped by the two men. Miss Leung took out her mobile phone and while making a call, the appellant hit her causing the phone to fall upon the ground. At that point, the appellant grasped the left side of the chest of Miss Leung and was further restrained by the other two men. Whilst he was being held and scolded by Miss Leung, he used his hand to touch the private parts of Miss Leung once. Miss Leung hit the appellant once and she noticed blood on the right hand side of his face and on one of his hands. At this stage, the police arrived.

3. This version of events was corroborated by an independent witness who was walking along Pei Ho Street when she saw the appellant following two males and one female. She saw the appellant holding a bottle containing wine. She heard the appellant ask : "Are you the one who ask someone to hit me?" and a denial of that allegation. She saw the appellant hit Miss Leung in the face but was unable to testify as to any indecent assault. The magistrate accepted this fourth witness as being impartial independent and unconnected with either party.

4. The first ground of appeal raised by the appellant, who is in person before me but who was represented in the court below, was that the counsel who represented him in the court below refused to permit him to testify at the trial and instructed him not to do so. This he said was against his will and on that ground alone, he was entitled to have this appeal allowed. I requested the counsel involved to file an affidavit, setting out the events from his recollection and from his instructions, to ascertain whether the appellant had been properly represented.

5. Upon receipt of that affirmation, in his further argument, the appellant claimed that counsel was not telling the truth in that affirmation. It became necessary therefore to request counsel to attend the appeal and be heard upon the issue. Counsel having appeared and the allegation being put to him that he had not permitted the appellant to give evidence, the allegation was denied under affirmation. Upon an opportunity being given to the appellant to cross-examine counsel on the matter, the appellant conceded that counsel had prior to trial explained to him his options concerning the giving of evidence and the law concerning that topic. He further conceded that he was further advised as to the law at the close of the case of the prosecution and that he made the decision not to give evidence wholly on his own account and without any prompting or coercion from counsel whatsoever. This ground of appeal fell away.

6. The remainder of the grounds of appeal of the appellant revolved around factual issues which, the appellant said, had been wrongly decided by the magistrate and were clearly argued from his own personal point of view. The magistrate, at the time of the trial, had before him the evidence from the prosecution alone. Whilst no onus whatsoever fell upon the accused and the magistrate proceeded on that basis, the magistrate cannot be criticized for reaching the conclusions that he did by an argument that his conclusion would have been different had he had an opportunity to hear the appellant.

7. One of the arguments raised by the appellant was that his injuries were not fully before the court, however, it was clear from the magistrate's finding that the magistrate found him to have an injury to his hand and there was evidence from PW1 that his face was bleeding. The appellant disputed the position in which he was being restrained at the time of the approach by the police officer. However there was no evidence before the magistrate to cast any doubt upon the evidence given by the prosecution witnesses.

8. Further, the appellant argued that when Miss Leung made a call on her telephone at the scene, it was not to the police. This was not the evidence given by Miss Leung. In the absence of any evidence from the appellant, the magistrate having found Miss Leung to be a credible witness, was entitled to rely upon her evidence.

9. Similarly the allegations now by the accused that Miss Leung was alleged to have claimed membership of the "Sun Yee On" triad society could only have relevance to her credibility and here credibility was fully and properly assessed by the magistrate as he ought.

10. There is nothing in any of these grounds of appeal which relate wholly to factual matters. The magistrate had before him evidence upon which he was entitled to come to the conclusion that he did and full argument from counsel in respect of that evidence. This appeal against conviction is dismissed.