HKSAR v. YEUNG KIN TONG

HCMA 1265/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1265 OF 2004

(ON APPEAL FROM ESCC 2901 OF 2004)

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J U D G M E N T

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1.  This Appellant appeals against his conviction after trial before Ms Bina Chainrai in the Magistrate’s Court at Eastern on a charge of assault occasioning actual bodily harm.

2.  At the time of the incident leading to the charge, the Appellant shared a cell with another inmate at Stanley Prison.  It was this other inmate, who gave evidence as PW1, whom the Appellant was charged with assaulting so as to occasion him actual bodily harm.

3.  There was no dispute that there was a physical encounter between the Appellant and PW1, nor can there be any doubt that the encounter resulted in actual bodily harm to PW1.

4.  The medical report on PW1 admitted under section 65(B) of the Criminal Procedure Ordinance, Chapter 221 shows that his injuries consisted of:

“loose teeth x 2 incisor, left periorbital margin bruise, right occiputal region bruise, chest wall bruise.”

5.  According to PW1’s evidence, he sustained these injuries when, apparently angered by his asking the Appellant to take off his slippers when walking in the cell so as to make less noise, the Appellant came up to him as he lay on his bed and punched him in the face several times, loosening his teeth and causing him to bleed.

6.  But according to the Appellant, PW1 attacked him and he punched PW1 away in self-defence, which resulted in PW1’s face striking the metal cell door and being injured in that way.

7.  The Magistrate who had the advantage of seeing and hearing the witnesses and who demonstrated that she had gone about her task in the appropriate way, was satisfied beyond reasonable doubt that the truth had come from PW1 and not the Appellant.  There is no basis on which this conviction can be disturbed.

8.  Accordingly, the appeal against conviction is dismissed.