HKSAR v. YUNG PUI KIT

HCMA1175/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1175 OF 2003

(ON APPEAL FROM KCCC 11303/2003)

---------------------------

----------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted by Magistrate Stephen Smout on 30 October 2003 of one charge of assault occasioning actual bodily harm. He was sentenced to a fine of $3,500. He now appeals that conviction.

2. There was a history of animosity between the appellant and the woman he was convicted of assaulting. They are neighbours.

3. The facts relied on by the prosecution were that on 26 April 2003, the woman was taking exercise near a jogging path in Junction Road Park, Kowloon City. She testified that as she stretched out her arms the fingers of her right hand touched the left forearm of a passing jogger. That was the appellant. She said he responded by punching her on the left eye with his right fist. She said she shouted for help and a passer-by came over. That was a Mr Wong (PW2). She said the appellant held her handbag to prevent her leaving, tried to take her telephone when she attempted to telephone the police and struggled with Mr Wong. The appellant left the scene and was later identified by the woman to the police at the hospital.

4. Mr Wong who is independent of either party said he heard a woman cry for help. He saw her in a dispute with a man. He approached. The man who, it is accepted, was the appellant said there had been a misunderstanding. He said he did not struggle with the appellant.

5. The woman was later found to have a bruise and swelling over the left eye. That was seen by Mr Wong on his approach.

6. The appellant testified. He said he was jogging when the woman punched him in the left side of the chest. She scratched him and he used both arms to ward her off. She said she would report the matter to the police and ran toward the park office. Mr Wong approached and the appellant told him there had been a misunderstanding. The appellant left and made a report to the police. He was medically examined and scratch marks were visible on his right forearm, and the medical report noted tenderness over the left chest wall.

7. The first ground of appeal is that the evidence of the victim was inherently implausible in that a contact between her band and the arm of the jogging appellant would not provoke a reaction of a blow to the eye. The magistrate noted the history of the animosity between the parties. He warned himself that the victim might have her own purposes to serve in testifying as she did. He did not specifically address the issue of such a blow being an appropriate response to the touch of the victim but given the long-standing ill-feeling between the parties an excessive response by either could well be contemplated. The fact the magistrate did not directly deal with it does not affect his judgment.

8. Ground Two complains that the magistrate failed to fully consider the inconsistency of the denial by the victim of scratching the appellant and the scratch to the forearm of the appellant. Further, the magistrate was wrong in finding the scratch to the arm was incurred when the appellant tried to prevent the victim using her telephone. The appellant testified that he attempted to do so. The magistrate held only that the scratches may have been sustained during the attempt to prevent the use of the telephone. The magistrate was doing no more than giving an illustration within the evidence as to how the marks might have been caused. He did not make a finding as to how they were caused. Indeed he noted that there was only the testimony of the appellant as to how the scratches came about, and as to the evidence of the appellant, he said :

" I have to say that I did not believe him as to how the events took place."

This was an issue of fact and the magistrate was entitled to make the findings he did.

9. Ground Three argues that the magistrate failed to fully consider the discrepancy between the evidence of the victim and that of Mr Wong as to whether a struggle took place between Mr Wong and the appellant. The victim said there was such a struggle. Mr Wong said there was not. The appellant said there was not. The magistrate was fully aware of that inconsistency. He said this :

".... I did take into account the discrepancy between herself and PW2 as to whether or not there was a struggle between the defendant and PW2. I am satisfied that she made an honest mistake in her memory as to that aspect of the events. At that time, she was, no doubt, preoccupied by her injury and her desire to make a report to the police. ...."

10. Mr Delaney argues that the evidence the struggle took place is a positive assertion and this is one not readily ascribed to a loss of memory and adopts the same argument in respect of the magistrate's illustration of how the mistake may have occurred.

11. There is some force in the argument. However, I must bear in mind R. v. Low [1961] HKLR 13 where Blair-Kerr J said at p.82 :

".... an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended upon the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence such findings appear reasonable."

This applies of course equally to magistrates as well as to District Judges.

12. I am satisfied the magistrate had fully before him the inconsistency and its nature. He came to his finding having seen and heard all the witnesses and being in a better position than myself to evaluate their credit. It is not for me to retry the case.

13. Ground Four argues that the magistrate failed to consider the account of the appellant was more consistent with the evidence of Mr Wong than that of the victim and that Mr Wong did not see any attempt to snatch the telephone. The magistrate found notwithstanding the defects in her evidence that the woman was a witness of truth. He found the appellant was not. Nonetheless he considered the evidence of the appellant in determining whether there were doubts in the case for the prosecution. Since the magistrate did not believe the appellant that evidence was not available to him, and he proceeded to his determination on that evidence of the prosecution of which he found he could be sure.

14. The last ground of appeal complains of the magistrate's findings in respect of the scratch to the arm of the appellant with which I have already dealt and his finding that the contusion to the wall of the chest of the appellant was not sustained in the incident.

15. As to the second part of the ground, I note the medical report shows a tenderness over the left chest wall. The magistrate found that having been unable to place any credit on the evidence of the appellant and, having looked at the rest of the evidence, he was unable to find the tenderness could or might have been caused in the incident as there was no credible evidence as to its age. His finding was no more than he was not satisfied it might or could have been caused in the incident.

16. There is nothing in any of these grounds of appeal and the appeal against conviction is dismissed.