THE QUEEN v. LIU CHI HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 650 of 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal by the appellant against his conviction and sentence on the 19th of June 1985 of an offence of 'Common Assault' for which he was fined $1,500 and ordered to pay costs of $500 and a payment of $1,000 as compensation to the victim.

2. The facts of the case reveal that on the 10th February 1985 the victim a security guard saw the appellant coming out from a lift doing up his fly and that there appeared to be urine on the floor of the lift. When challenged about this, the appellant assaulted the victim. The appellant's evidence was to the effect that the allegations had been made up by the victim because of an incident that occurred some four to five months previously when the appellant had found the victim asleep on duty. There was also a complaint that the victim had accused the appellant of theft on the 4th February 1985. The appellant's allegations were denied by the victim. There were no other witnesses with the result that the case depended upon the credibility of the victim or the appellant.

3. Mr. Tang who appeared on behalf of the appellant initially argued two additional grounds of appeal which he submitted amounted to prejudice by the magistrate. First the magistrate made a wholly unjustified remark to the effect that it was a case where a Chinese businessman was not willing to lose face before a security guard, and second that in determining the guilt or innocence of the appellant, the magistrate took into account irrelevant matter namely the build of the victim and the appellant. The magistrate was entitled to draw proper inferences from the evidence and both matters could be taken into consideration. Neither ground amounted to prejudice.

4. Only the first two grounds of the original Notice of Appeal were argued. The first was that the victim who is a Pakistani did not appear to fully understand English. However, the magistrate described the victim's English to be very adequate and very clear. It is significant that no objection was raised by the solicitor who acted for the appellant before the magistrate. Again there is no merit in this ground of appeal. The next ground of appeal was that the magistrate failed to give the appellant the benefit of the doubt on four matters :-

5. As regards the grudge, the magistrate said that he did not believe that there was any grudge between the witness and the appellant. This was a matter of fact on which the magistrate was entitled to make a finding. With regard to the walkie-talkie, the magistrate said that it was perfectly feasible for someone to fall without the walkie-talkie being-damaged. I agree entirely. The other two grounds are devoid of merit.

6. A further matter that was raised, but not argued strenuously was the absence of any medical evidence. There was no obligation on the part of the prosecution to adduce such evidence. This wholly unmeritorious appeal against conviction is therefore dismissed.

7. With regard to the matter of sentence, the magistrate said that it was a bad case of assault. The victim testified that he was kicked on his right leg and pushed by the appellant to the floor. He suffered an injury to his right hand and on the leg near the knee cap which caused much pain. Later he received medical treatment in hospital. I agree with the views expressed by the magistrate that it was a bad assault. In my opinion the sentence in this case was appropriate. The appeal against sentence is also dismissed.