R. v. WONG YIU PING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 528 OF 1996

____________

____________

_______________

J U D G M E N T

_______________

1. On 25th March 1996 at Tsuen Wan Magistrates' Court, the Appellant was convicted, after pleading not guilty, of an offence of common assault. He was fined $1,000.00 and ordered to pay $500.00 costs. He now appeals against his conviction.

2. The prosecution's case depended almost entirely on the evidence of PW1. He was a man aged 60. His evidence was that the Appellant was his landlord. At about noon on the day in question, the Appellant had come to his room. He had banged on the door demanding payment of rent and threatening to beat PW1 up. PW1 called the police. A police officer, PW2, arrived on the scene. His evidence was that PW1 promised to pay the rent which was due at a later date as he did not have any money at the time. PW2 thought that PW1 and the Appellant were prepared to compromise their differences, and so he left.

3. PW1's evidence then dealt with what happened after PW2 had left. PW1 claimed that the Appellant swore at him, and told him that if he did not pay the rent he would beat PW1 up every time he saw PW1. That was when the Appellant punched him twice on the left temple and hit him once on the shoulder. The Appellant left immediately afterwards to have a meal which was when PW1 called the police again. PW2 returned a few minutes later and the magistrate noted PW2's evidence that he saw no injury on PW1.

4. The Appellant elected to give evidence. He denied that he had assaulted PW1 at all. His evidence was that after PW2 had left for the first time, he went to have lunch with his children and was arrested on his return. He was accused of having assaulted PW1, and he denied that accusation. The magistrate noted that in his evidence PW2 agreed that the Appellant had denied the accusation.

5. The magistrate saw and heard the witnesses. He found PW1 to be a truthful witness. He believed PW1. He found the Appellant's protestations of innocence less than convincing. He did not believe the Appellant. Despite the helpful skeleton submissions prepared on behalf of the Appellant (which were very different in tone and moderation from the oral submissions made to me by the Appellant), there is no basis on which I can interfere with the magistrate's assessment of the two principal witnesses. It was for the magistrate to gauge the credibility of the two of them, and to give such weight as he thought appropriate to any inherent probabilities or otherwise in the evidence of PW1 and the Appellant. The various points made in the skeleton submissions do not in any way undermine the evaluation of the magistrate of the witnesses or the plausibility of their respective versions of events. Once the magistrate accepted PW1's evidence, the conviction of the Appellant was inevitable. In these circumstances, this appeal must be dismissed.