HKSAR v. GULAPA, LAMBERTO R

HCMA 1039/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1039 OF 2005

(ON APPEAL FROM ESCC 2378/2005)

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J U D G M E N T

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1.  The incident which gave rise to the charge, the trial and the conviction of the appellant occurred on a tram. 

2.  A passenger had been attempting to leave the top deck of the tram. His passage was partially obstructed by the presence of the appellant, his daughter and their two rucksacks.  The passenger bumped into the rucksacks.

3.  It was the prosecution’s case that thereupon the appellant struck him a single blow in the face.  The blow was sufficient to cause a superficial facial injury resulting in bleeding and to damage the passenger’s spectacles.  As a result he remonstrated with the appellant and then descended to the lower deck where he made a complaint to the driver who summoned the police.

4.  The appellant gave evidence and called his seven-year-old daughter as a witness.  The magistrate found as a fact that, from the position in which the daughter was standing prior to the passenger starting to remonstrate with her father, she could not have seen the events which gave rise to the injury.

5.  The appellant’s case is a simple denial of having punched the passenger.  He says he has no idea how the passenger was injured but accepts that the injury was as described by the passenger.  He also accepts that the passenger volubly remonstrated with him.

6.  The magistrate took into account not just that the appellant was a man of previous clear criminal record but that there was evidence of what is called “positive” good character.

7.  There were two diametrically opposed versions of events.  The magistrate had the opportunity of seeing and hearing those witnesses and assessing their evidence.  I do not.  This is a matter which turns entirely upon the credibility of the witnesses.  The magistrate properly assessed and evaluated the witnesses and the evidence.

8.  There is no justification for me to interfere with the decision at which he carefully arrived.  The appeal is dismissed.