HKSAR v. WONG KAM FUNG

FAMC No. 10/2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 78 OF 2011)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.  In convicting of assault occasioning actual bodily harm, the magistrate accepted the victim’s evidence that the defendants had attacked her in the way which she described.  The appeal judge felt unable to support that conclusion.  So he quashed the convictions for assault occasioning actual bodily harm.  But he noted that one of the defendants, who is now the applicant before us, had admitted in the witness-box that she had slapped the victim.  Upon that admission, he substituted, in the case of the applicant, a conviction for common assault.  There is no reason why the applicant should have made that admission unless it is true.  And the appeal judge was entitled to take the view that the magistrate must have been satisfied of facts which proved the applicant guilty of common assault.  That brings the case within s.119(1)(g) of the Magistrate Ordinance, Cap. 227.

2.  We stress that all of that proceeds on the fact of the applicant having made an admission the truth of which there is no reason to doubt.  It does not depend on what the magistrate said.  As for the magistrate’s statement of findings, Mr Martin Lee SC for the applicant is of course correct that the magistrate’s course of referring to the notice of appeal and responding to it, which he did under a heading worded as “My response is as follows”, is to be deprecated.

3.  In the result, despite the submissions forcefully made by Mr Lee with his customary ability, we do not consider this to be an appropriate case for an appeal to the Court of Final Appeal.  Leave to bring such an appeal is accordingly refused.