R. v. LEUNG SING WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.349 OF 1996

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J U D G M E N T

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1. The appellant was convicted after trial of assault occasioning actual bodily harm. He was fined $2,000 and ordered to pay costs of $500.

2. The prosecution's case was this. The appellant and the victim who was PW1 were friends but their relationship had turned sour because of the victim's accusation at the appellant. On 28th May 1995, while the victim was waiting for his own girlfriend at the building, the appellant came and punched him on the jaw and accused him of going to a karaoke with his wife the night before. The victim's girlfriend came and the argument continued. The appellant went into the lift lobby of the building but the victim and his girlfriend followed. The arguments developed and continued. Later the appellant's brothers came and joined in the quarrel. During the quarrel, the victim said that the appellant pushed him, causing him to lose balance and to fall. Finally, his head hit a chair and quite unfortunately, he injured his right eyebrow. It was the appellant who called the police. According to the officer who came to the scene, the appellant admitted that he had hit the victim. But he said he did not push him or cause injury to him.

3. The appellant gave evidence in the court below. He said he swore at the victim, but the victim punched him in the head. He dodged it and accidentally hit the victim's neck. He then went into the building to return home but the victim and his girlfriend followed and pursued the argument. His brothers also came and it was the victim who provoked the quarrel. The appellant left for a while and then returned and still saw the victim there. According to the appellant, it was the victim who suddenly banged his own head against the wall, fell over and bumped his head against the chair and does sustaining injury. He denied having admitted to the officer what was alleged.

4. The learned Magistrate considered the evidence, assessed it and believed the victim. He did not believe the allegation of the appellant that it was the victim who had deliberately bumped his head against the wall.

5. Before me, the appellant repeated in essence that he did not assault the victim. He said that he was simply helping the victim up. I think there is ample evidence to support the finding that there had been a quarrel, there had been some rough handling of each other, there might have even been some punching and it may well be that during this argument, that the victim was pushed by the appellant and fell onto a chair thus injuring his eyebrow. It may also be the case as the appellant submitted to me that after the victim had fallen, he had helped him up. But it does not mean that he had not earlier on pushed or pulled the victim causing him to fall onto a chair. I think that the learned Magistrate was clearly correct in rejecting his allegation that the victim had knocked his own head against the wall. I do not accept that either. It simply cannot be right. In the circumstances, I do not think there is any merit in this appeal. Unfortunately, the appellant had been living in this case for the last year or so, because he felt aggrieved and had been hurt by the victim and his girlfriend going out with his wife to karaoke. It may also be true that the victim had insulted him but that is beside the point. The court of course is not to deal with the rights and wrongs of the parties, the wife and the girlfriend. The facts as found by the learned Magistrate was that the victim was assaulted by the appellant. I am in no doubt that the conviction is correct. The appeal is dismissed.