HKSAR v. IJAZ, MUHAMMAD

HCMA 53/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 53 OF 2015

(ON APPEAL FROM KCCC 4241 OF 2014)

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J U D G M E N T

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1.  The appellant was convicted after trial by a deputy magistrate[1] of an offence of wounding contrary to section 19 of the Offences Against the Person Ordinance Cap 212. He was sentenced to 6 months and 2 weeks’ imprisonment. He now seeks to appeal against conviction.

The facts

2.  The facts were not in dispute.  The incident was captured by CCTV recording which was produced as an exhibit.  In addition, photos of the relevant footage were produced and exhibited.

3.  The appellant and a male named Mustafa (the victim) were inmates as well as cell mates at the Lai Chi Kok Reception Centre (LCKRC).  On 2 November 2014 whilst Mustafa was watching TV at the recreation area of LCKRC, the appellant suddenly approached Mustafa and slapped him on his head around the area of his left ear.  As a result of the slap, Mustafa said he was bleeding heavily and described the strength of the slap to be heavy. 

4.  Mustafa was treated at the Queen Elizabeth Hospital on the same day.  According to the medical report Mustafa sustained injury to his left ear, left face, neck and left shoulder.  He suffered from a perforated left tympanic membrane, tenderness over left cheek, erythema over right neck and abrasion over left shoulder.  The clinical diagnosis was perforation left tympanic membrane and multiple contusion. 

5.  At the trial under cross-examination Mustafa said he had gone to Yau Ma Tei Hospital for follow-up and the doctor said he was “okay now.”

Defence case

6.  The appellant gave evidence and admitted he had slapped Mustafa out of rage.  He claimed he did this as he was verbally abused by Mustafa. 

Magistrate’s findings

7.  The magistrate noted that provocation is not a defence to the current charge.  This was not disputed by the defence.  The magistrate referred to the CCTV footage which showed that the appellant walked up to Mustafa and slapped him.  This was consistent with Mustafa’s evidence.  The appellant did not dispute he had slapped Mustafa with the resulting injuries as described by Mustafa and the medical report.  Based on the above she was satisfied that the prosecution had proved all the elements of the offence beyond reasonable doubt. 

Grounds of appeal

8.  Counsel for the appellant, Mr Trevor Beel raised two grounds of appeal as follows:-

i. The statement of findings of the magistrate were inadequate; and

ii. The magistrate erred in finding that a perforated left tympanic membrane amounted to a wound.

9.  Mr Beel contended that the appellant was wrongly convicted of wounding, instead the appellant should have been convicted of an offence of assault occasioning actual bodily harm.

Analysis

Ground 1

10.  Mr Beel complained that the statement of findings were inadequate as the magistrate had failed to:-

(i) make a careful assessment of the evidence;

(ii) consider the credibility or reliability of the evidence, particularly that of Mustafa’s allegations and the medical report;

(iii) demonstrate how the evidence was analysed, accepted and rejected; and

(iv) give reasons why she found that the injuries sustained by Mustafa amounted to a wound.

11.  Initially the only issue raised by the defence at trial was that the appellant slapped Mustafa because he was provoked.  This however was later abandoned as it was not a defence to the charge.

12.  In the present case, the appellant who was represented by counsel at his trial disputed none of the facts.  The evidence adduced by the prosecution was accepted by the defence.  The assault was captured on CCTV, the appellant had admitted the assault.  The injuries suffered by Mustafa were admitted.  There were therefore, no issues regarding credibility, reliability, contradictory evidence or conflicting submissions. 

13.  Specifically there was no submission by the appellant’s trial counsel that the evidence coupled with the injuries did not amount to a wound. 

14.  As none of the points raised by the prosecution were challenged at trial, the magistrate had in her statement of findings illustrated the salient points in the case and demonstrated that the evidence had been evaluated.  

15.  Although the magistrate’s statement of findings was succinct they were not inadequate.  She was satisfied that the prosecution had proved the charge beyond reasonable doubt.

Ground 2

16.  The appellant contended that the injury to Mustafa, the perforated left tympanic membrane, did not amount to a wound.  He argued that it was not self evident that the injury in question amounted to a wound.  He submitted that there was no medical evidence or authority relied on by the magistrate to establish that the injury amounted to a wound. 

17.  Mr Beel relied on the following cases to establish that the injury was not a wound.  More particularly he contended that there was no medical evidence that a perforation was a break of the whole skin, if anything it was only a break in the membrane.  In R v M’Loughlin 173 E.R. 651 to constitute a wound, it is necessary that there should be a separation of the whole skin; and a separation of the cuticle or upper skin only is not sufficient.  In C. (A Minor) v Eisenhower [1984] 1 Q.B. 331, the injury sustained by C amounted to a bruise just below the left eyebrow and fluid filling the front part of his left eye for a time afterwards abnormally contained the red blood cells.  The court held that the word “wound” meant the break in the continuity of the whole skin; that is the rupture of both layers of the skin being the outer layer epidermis or the cuticle and the under layer the dermis or the true skin.  Accordingly, the rupture of internal blood vessels was not sufficient to constitute a wound.

18.  Mr Pierre Lui Public Prosecutor for the respondent relied on the case of R v Waltham (1849) 3 Cox 442.  He argued that a perforated ear drum associated with bleeding amounted to a wound.  In Waltham the prosecutor received a violent kick in his private parts while trying to separate a prisoner and a man who were fighting.  The surgeon testified that the external skin was unbroken, but that the lining membrane of the uretha was ruptured, which caused a small flow of blood mingled with urine for two days.  It was the respondent’s case that Waltham showed that there can be a break in the continuity of the skin to constitute a wound if the skin which was broken is the skin of an internal cavity of the body, being a cavity from the outer surface of the body where the skin of the cavity is continuous with the outer skin of the body. 

19.  Each case must be looked at on its own facts.  The crucial evidence before the magistrate by Mustafa, which significantly was not challenged, was that after the slap there was heavy bleeding.  Similar to Waltham the present case involved an injury to the membrane and resulted in bleeding.  I am satisfied that the heavy bleeding associated with a perforated eardrum is sufficient evidence in itself to constitute a wound. 

20.  For the above reasons, there were no merits in the appeal and the appeal against conviction is accordingly dismissed.