HKSAR v. KWOK YUEN SANG

HCMA 761/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 761 OF 2000

(ON APPEAL FROM KTCC 1068/2000)

____________

_______________

J U D G M E N T

_______________

1. This is an appeal against the conviction of the appellant by Mr Glass at the Magistrate's court at Kwun Tong on 14 April 2000 of an alternative count of "assault occasioning actual bodily harm" following his acquittal on a charge of wounding contrary to section 19 of the Offence against the Person Ordinance Cap.212.

2. The appellant then aged 20, was an inmate at Pik Uk Correctional Institution. The charge against him alleged that on 21 March 2000 inside the main dining room of that institution he had unlawfully and maliciously wounded Cheung Hon Wah, an Assistant Officer Grade II of the Correctional Services Department.

3. The prosecution called 8 witnesses. The essence of its case was that the appellant had got up from his seat in the dining room of Pik Uk Prison and had walked towards his alleged victim (PW1) who was in the dining room with other officers supervising the prisoners. On reaching the PW1 he had allegedly attacked him stabbing him in the head with a ball point pen. There had been a struggle to restrain the appellant from attacking the PW1 involving other officers present in the dining room.

4. The appellant gave evidence and gave a quite a different account of what had occurred that day. He said that there had been an incident which had involved him and the PW1 some weeks earlier following a fight between two other prisoners. The PW1 had reported to his superiors that the appellant had intended to assault and threaten him. This incident had been investigated by a more senior officer who concluded that it had been a minor misunderstanding and asked the appellant to apologise to the PW1.

5. The appellant had apologised but that had not been an end of the matter. The appellant had attended his monthly interview with a reviewing panel on the morning of the incident which gave rise to this trial. He was told that he would not be promoted that month and as a result his release would be delayed.

6. Later that day when in the dining room he had seen the PW1 for the first time since the incident. The PW1 was talking with two sergeants. They had been looking in his direction and had laughed. He approached them to ask why they were acting in this way and to ask the PW1 about the earlier dispute between them.

7. When the appellant approached the PW1, the PW1 had pushed him away and then kicked him, causing him to fall to the floor. The PW1 had then thrown his own spectacles on the floor and claimed to the other two officers with him that the appellant had assaulted him.

8. The appellant said that he was very angry with what the PW1 had done and had stood up and punched him several times. He admitted that he had struck him in the face.

9. One of the officers with the PW1 had taken out a baton and struck the appellant on the head. The appellant had fallen to the floor again and had been kicked and struck by several officers while on the floor. He said he was unable to fight back because the officers had weapons and there were too many of them. He simply lain on the floor and protected himself with his hands or arms. His hands were then grabbed and he was dragged out of the dining room.

10. In his findings, the learned magistrate said that he did not believe the prosecution evidence of the events that took place in the dining hall that day. I need not go into the reasons for this finding. He went on to say "I found however that I was impressed with the defendant's evidence and I believed that he was giving honest and reliable evidence and I accepted his evidence was the truth of what had happened on the day in question".

11. It was as a result of the appellant's own evidence that the learned magistrate convicted him of the offence of assault occasioning actual bodily harm, as a result of the punches directed to the PW1's face after the appellant got up from the floor.

12. There were 3 grounds of appeal advanced by Miss Remedios on behalf of the appellant. Firstly, that the magistrate had failed adequately or at all to consider the circumstances in which PW1 sustained the laceration and scratches to his head and that, having rejected the prosecution evidence, there was no reliable evidence that the PW1 sustained the injuries as a result of an assault by the appellant.

13. Secondly, the magistrate failed to consider whether the scratches and lacerations could have been sustained when the appellant was protecting himself in the course of subsequent struggle.

14. Finally, that the conviction was unsafe and unsatisfactory. Under this head, Miss Remedios suggested that the magistrate had failed properly to consider the issue of self defence, in particular, the magistrate had failed to consider whether the force used by the appellant was within the conception of self defence bearing in mind the position of the appellant at the time - a young prisoner confronted by 3 officers who had caused him to fall to the ground.

15. I shall deal with the final ground first.

16. I am satisfied that the magistrate adequately considered the issue of self defence in this case even though it was not expressly raised either by the defendant or his counsel. He quite properly reminded himself that the burden laid upon the prosecution to disprove such a defence. The magistrate's statement of findings made it clear that he did have the position of the defendant in mind at the time - he had been pushed and kicked by the PW1 causing him to fall to the floor. There was no evidence of any other kick or sort from the PW1 at the material time. All had happened after that was that the PW1 had thrown his glasses on the floor and claimed that he had been assaulted. There was nothing in the evidence of the appellant to suggest that there was hint of any further assaults coming from the PW1 or the other officers. On the contrary, the appellant said "I stood up because I was very angry with what he did. I punched him several times." In other words, it was anger not self protection which prompted him to assault the PW1. The magistrate further went on to find that the actions of the PW1 did not justify a series of punches to the PW1's face. I find that the magistrate properly considered the issues raised in relation to self defence and rightly rejected it.

17. Insofar as the first and second grounds of appeal are concerned, they relate to the connection between the lacerations and scratches to the PW1's head and the punches admittedly directed by the appellant.

18. The magistrate found that the punches of the appellant had caused the PW1 actual bodily harm in the form of lacerations and scratches to his face.

19. In considering these grounds of appeal, it must be borne in mind that the magistrate had expressly accepted the evidence of the appellant. His evidence was the only time he struck the PW1 was when he gave the several punches to the PW1 (which included blows to his face) after he had got up from the floor. The appellant said he was then hit on the head causing him to fall to the floor again. Thereafter he was unable to fight back because there were too many officers and they had weapons. He had simply protected himself with his hands or arms.

20. I am satisfied that the magistrate's own questions to the appellant about whether the punches were to the PW1's face showed that he had in mind the circumstances in which PW1 sustained the lacerations and scratches to his head. The appellant admitted that his blows were such that they could have caused the PW1 to bleed. It is not surprising therefore that the magistrate was satisfied that the appellant's punches had caused the lacerations and scratches. The appellant's own evidence was reliable evidence from which he could infer that the punches had caused the injuries.

21. Miss Remedios suggested that the magistrate should have considered whether the injuries were self inflicted. It is apparent from his reasons given when he convicted the appellant that the question of self infliction was in the magistrate's mind at the time. It is clear from his finding that he must have rejected such a possibility.

22. Miss Remedios also submits that the magistrate did not consider whether the lacerations and scratches could have been caused by anything other than punching, in particular, he did not consider whether they might have been caused while the appellant was protecting himself in the course of the subsequent struggle between the appellant and the prosecution witnesses. It was the evidence of the appellant however there was no such struggle. He had simply been concerned to protect himself with his hands or arms.

23. In my view, in such circumstances, it would have been fanciful for the magistrate to speculate that the PW1 might nonetheless had received his injuries while the appellant was trying to protect himself when the magistrate had heard the evidence from the appellant himself of his blows to the PW1's face sufficiently forceful possibly to cause bleeding. The minor injuries caused to other officers do not assist Miss Remedios' argument. There were not to the heads of those officers and are consistent with having been caused as they dragged the appellant from the dining room.

24. I find that the learned magistrate carefully and properly examined the issues that arose in the trial and there is no ground for interfering with his verdict.

25. I dismiss the appeal.