HKSAR v. HO TAM KUN

HCMA276/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.276 OF 1999

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J U D G M E N T

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1. On 3rd February 1999, the Appellant was convicted of common assault by Mr Wahab, Magistrate. He was aggrieved with the conviction and appealed against that conviction. On 11th September 1999, I having heard his submission, dismissed his appeal against conviction. He has today applied to me for a certificate that there is a point of law of great general importance involved in my decision which should be determined by the Court of Final Appeal.

2. The application is made under s.32(2) of Cap.484. The point of law which the Appellant submitted is a point of great general importance is this. In the trial PW1 had testified that when he accosted the Appellant because the Appellant was jumping the queue, PW1 either patted or placed his hand on the shoulder of the Appellant. The Appellant alleges that this was technically an assault on him and therefore he was entitled to defend himself.

3. The allegation by the prosecution was that after the Appellant was patted on his shoulder by PW1, he threw a punch in the face of PW1. This allegation of the assault on PW1 was denied by the Appellant when he gave evidence. The Appellant denied that he had ever punched PW1. The Appellant now relies on this to say that the Magistrate who conducted his trial should have considered whether or not the Appellant was acting in self-defence. He also alleges that when I dismissed his appeal against conviction, and ruled that he had not been assaulted by any person and therefore self-defence did not arise, that I was wrong in law.

4. In fact, the question of self-defence never arose because the Appellant, when giving evidence, denied that he had ever punched PW1. Therefore the issue before the Magistrate was simply whether he had been satisfied beyond reasonable doubt that the Appellant did assault PW1. He accepted the testimony of the prosecution witnesses and adjudicated that he was satisfied beyond reasonable doubt by their evidence and therefore convicted the Appellant.

5. The second point of law which the Appellant relied upon is the fact that after he was arrested and before he was charged, by an order of the Magistrate, he was sent to a psychiatric centre or mental hospital for observation. After he was discharged from the mental hospital, he was charged with the present offence. The Appellant alleges that because of that, he had been punished twice for one offence.

6. In my opinion, nether point relied upon by the Appellant is a point of law of great and general importance. I therefore declined to grant a certificate under this limb of the appeal.

7. There is a second limb under s.32(2), Cap.484 that the Appellant can rely upon, and that is that he has to show that a substantial and grave injustice has been done in this case. If he wishes to pursue this point, he should make application direct to the Court of Final Appeal, or indeed, if he still wishes to pursue the point that there is in this case a point of law of great general importance, then he should similarly make an application to the Court of Final Appeal.