HKSAR v. PETER THOMAS ARMSTRONG

HCMA638/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.638 OF 2000

(ON APPEAL FROM ESCC 917 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on 2 June 2000 of common assault and was fined the sum of $4,000 together with $2,000 costs. He now appeals that conviction.

2. The charge arose from an incident which occurred on 16 February 2000. The alleged victim, Leung Siu Kei, and the appellant were both employed by the same company. On that day, the employment of Leung was terminated and he was to meet the Administration Manager in the afternoon to agree certain matters on compensation. They met and Leung was asked to sign a letter of dismissal. He refused to sign and the appellant intervened. Difficulty was experienced by Leung and the appellant in communication and various persons endeavored to act as interpreter between the two.

3. It is common ground that a dispute took place inasmuch as it was the case for the prosecution that the appellant was trying to remove Leung from the premises and the case for the defendant that Leung was trying to force his way into the premises or rather further into the premises in the course of his seeking further compensation. An argument took place and Leung sustained neck and wrist injuries, minor in nature, which were exhibited by photographs. He called the police.

4. The first matter raised by Mr King for the appellant is that counsel in the court below failed to address the court at the close of the case for the defence on the merits of his client's case. Mr King does not argue that this represents incompetence by counsel warranting the allowing of the appeal upon that basis. But he does argue that taking into account the fact the magistrate did not have the benefit of counsel's address taken with the matters he raises, the conviction was unsafe and unsatisfactory.

5. I will comment that it is highly unusual in a case such as this where there is dispute between the parties as to factual issues and where inconsistencies appear in the evidence for the prosecution that counsel did not elect to address the court so as to place his client's case in its best possible light.

6. One of the inconsistencies raised by Mr King was that one of the witnesses for the prosecution was said to have intervened between the parties at about 4:45 p.m. on the relevant day and then went back to his office. Shortly after he left, that witness said he heard shouting and returned and saw the appellant dragging Leung out of the door. This, by his assessment, would have been about 5 p.m. It was the defence case that this witness had returned to his office when the discussion continued and did not return when the incident took place.

7. The police were said to have been called by Leung and did not arrive until about 5:30 p.m. Mr King argues that it is unlikely the police would have taken that long to have answered the call and the time difference was significant. He further argues that the witness did not give a witness statement at the time but some two weeks after the event when he had resigned from the company and was in dispute with the company. The appellant is still employed by the company.

8. The magistrate noted the fact of his resignation from the company but did not find that affected the credit of PW2. He did not consider the issue of the time.

9. Mr King only has one ground of appeal and that is that I should have a lurking doubt in respect of the conviction. I accept the authorities which state that an appellate court has the power to overturn a conviction on the basis that in general terms, it is unsafe and unsatisfactory.

10. I agree with Mr Madigan, counsel for the respondent, who argues the threshold is high particularly when the issues are factual issues. In this case, the magistrate had the benefit of seeing and hearing the witnesses and having them cross-examined before him. At the close of the case, the prosecution declined to address the court and defence counsel also declined to make any submission. This was queried by the magistrate who said :

"No submission at all."

11. It is not incumbent upon the magistrate to argue with counsel to persuade him to make a submission when counsel had decided that none was appropriate. An appellate court does not retry the case and reconsider the evidence but considers whether the magistrate has acted properly in his assessment of the evidence, and in his application of the law. I am satisfied that he has done so in this case. The issues raised by Mr King are properly raised, but in overall terms do not achieve the threshold necessary for me to find that this conviction is unsafe and unsatisfactory. The appeal against conviction is dismissed.