HKSAR v. RAJESH, NARAIN PARMAR

HCMA 505/2024

[2025] HKCFI 2715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 505 OF 2024

(ON APPEAL FROM ESCC 2491/2024)

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J U D G M E N T

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1.  The Appellant was charged and convicted after trial of one count of “Assault Occasioning Actual Bodily Harm”, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Chapter 212, and was sentenced to 6 weeks’ imprisonment on 19 December 2024. On the same day, he filed a notice to appeal against both the conviction and the sentence.

Prosecution case

2.  The Prosecution case was that on 15 September 2024, on the 4^th Floor, 169 Queen’s Road West, Sai Wan (“the Premises”), the Appellant assaulted a female, Utari, thereby occasioning actual bodily harm to her.

3.  By way of a set of Admitted Facts signed by the Appellant’s Counsel and the Prosecutor, the photos of Utari (P2 (1)-(4)), the photos of the Premises (P2 (5)-(14)), the medical report of Utari (P3), and the cautioned statement of the Appellant (P4) were admitted.

4.  The medical report of Utari (P3) confirmed that she was examined by a doctor in hospital at 0005 hours on 17 September 2024. The medical examination showed that there was right forehead haematoma, left facial bruising and right upper lip bruising.

5.  In the Appellant’s cautioned statement (P4), he admitted that Utari had been his girlfriend for more than two years, and Utari came to his residence with a man at around 9 pm on 15 September 2024.

6.  The Appellant eventually opened the door and asked why Utari was there and asked her to go away. Utari slapped the Appellant, and he pushed her and got her out of the room. She fell down near the staircase.

7.  The Prosecution called two witnesses, namely, Mr Pang (PW1) and DPC14863 (PW2). PW1 was the eyewitness who lived in Room 2 of the Premises while PW2 was the officer taking the relevant photographs.

8.  PW1 gave evidence that at the material time he was inside Room 2 and heard some plastic bag rustling sound from the outside. He then went out to check and saw Utari. Utari told PW1 that she was looking for an Indian or Pakistani male living in his flat. PW1 thus knocked on the door of the Appellant’s room but there was no response, though there was a male voice inside.

9.  PW1 then opened the door of the Premises for Utari. Utari went inside the Appellant’s room. PW1 heard some noise inside the room. Later, as Utari wanted to leave, PW1 went to get the key to open the main door of the Premises. Then the Appellant came out and threw out the stuff brought by Utari and said, “Why you’re here?” The Appellant further asked if PW1 was the one who opened the door for Utari and why he did that.

10.  The Appellant was very emotional at the time. Utari tried to calm the Appellant down. The Appellant then slapped Utari on her face once with his hand. There were verbal disputes going on and PW1 asked the Appellant to just let the girl go. The Appellant further slapped her on the face twice with his hand. The Appellant also asked PW1 not to open the door for Utari next time. PW1 then opened the door for Utari to let her leave and went back to his room.

11.  PW1 confirmed that he saw the redness on Utari’s face when he opened the door for her to leave. PW1 also confirmed that Utari did not slap the Appellant.

12.  PW2 confirmed that he took photographs P2(1) to (4) for Utari at around 10.15 pm on 16 September 2024.

Defence case

13.  The Appellant elected not to give evidence and did not call any defence witnesses.

The Magistrate’s verdict

14.  The Magistrate found PW1’s evidence to be clear, logical, consistent and without any inherent improbabilities. She accepted his evidence as truthful and reliable. The Magistrate also found that the redness found on Utari’s face subsequently consistent with what had happened.

15.  The Magistrate found that the medical findings in P3 were also consistent with the three slaps as described by PW1 and the redness observed on Utari’s face. The Magistrate found the only irresistible inference to be drawn was that the injuries of Utari were caused by the slaps from the Appellant.

16.  On the other hand, the Magistrate found the Appellant’s explanation in his cautioned statement (P4) ridiculous and incredible, and rejected his explanation in its entirety. The Magistrate pointed out that the Appellant actually admitted pushing Utari to the ground, but his version of events was inconsistent with the medical report.

17.  Having considered all the evidence, the Magistrate was sure that the Appellant had slapped the face of Utari three times leading to her injuries as set out in the medical report (P3) in the night of 15 September 2024 when she went to the Appellant’s place to look for him. The Appellant was thus convicted.

18.  For sentencing, the Magistrate pointed out that there is no tariff for the subject offence and each case would depend on its own facts and the background of the defendant.

19.  The Appellant is 48 years old and a Form 8 holder. He had two previous convictions which were not of a similar nature to the present offence.

20.  Although no weapon was involved, the Magistrate considered the present case to be serious as there were slaps on the face of the victim leading to bruises on her face and haematoma at her forehead. The Magistrate found that the amount of force used was substantial to cause such injuries and the slaps were not the impulsive reaction of the Appellant.

21.  The Magistrate also considered the submissions made by the defence that the victim was not willing to pursue her case against the Appellant. However, the Magistrate noted that there was an intimate relationship between the parties. The Magistrate found that there were no special circumstances justifying a suspended sentence. The Appellant was sentenced to 6 weeks’ imprisonment.

Grounds of appeal

22.  The Appellant did not file any grounds of appeal or written submissions. Today, in Court, the Appellant was basically repeating his innocence and said he did not do anything wrong.

The Respondent’s submissions

23.  The Respondent submitted that the key issue of the present case is whether the Appellant assaulted Utari as alleged, as described by PW1. The Magistrate had properly considered the evidence of both the Prosecution witnesses and the version of the Appellant in his cautioned statement. As rightly pointed out by the Magistrate, PW1 was an independent witness and his description as to what happened was logical and consistent with the medical findings of Utari.

24.  On the other hand, the Appellant’s explanation in his cautioned statement was unreasonable and his version of events was inconsistent with the medical findings of Utari.

25.  The Respondent submits that the Prosecution had already proved beyond reasonable doubt all the elements of the offence. The appeal against the conviction should be dismissed.

26.  For the appeal against the sentence, the maximum sentence for the offence of assault occasioning actual bodily harm is 3 years’ imprisonment. There is no tariff and each case turns on its own facts.

27.  The Respondent submitted two cases of the same charge with similar facts. They are HKSAR v Ner Hamidah, HCMA 772/2009, unreported, and 香港特別行政區 訴 蘇子健 [2023] HKCFI 2543 and the sentences were both 6 weeks’ imprisonment.

28.  The Respondent submitted that a short custodial sentence was warranted in the present case and a sentence of 6 weeks’ imprisonment after trial was neither wrong in principle nor manifestly excessive. The appeal against sentence should also be dismissed.

My Decision

29.  I have considered again all the evidence by way of rehearing as required by the Court of Final Appeal decision in HKSAR v Hui Lai Ki (2024) 27 HKCFAR 265 and came to the same conclusion as that of the Magistrate.

30.  I am satisfied that there is sufficient evidence to prove beyond reasonable doubt the guilt of the Appellant for the subject offence. The sentence is neither wrong in principle nor manifestly excessive, in view of the charge, the facts of the case and the Appellant’s background.

31.  Both the appeals against the conviction and the sentence are dismissed. The Appellant is ordered to serve his immediate custodial sentence of 6 weeks’ imprisonment.