HKSAR v. LO HO YIN

HCMA33/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 33 OF 2009

(ON APPEAL FROM TWCC 3105 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction in the Magistrates’ Court on a charge of common assault. 

2. It was alleged that during the course of an argument with his sister on the evening of 4 October 2008 at the home he shared with her and his parents in Cheung On Estate, Tsing Yi he had assaulted her. 

3. The allegation was that the appellant had poked his sister (“PW1”) twice on her forehead and punched her at the side of her right eye. 

4. There was no dispute that there had been a heated argument between the appellant and his sister at the material time.  The appellant admitted during the course of his evidence that he pointed his finger within 6 inches of his sister’s nasal bridge during the course of the argument and that his father had had to intervene to stop the dispute.  However he denied that he had touched or punched his sister. 

5. The appellant’s father (DW1) and his girlfriend (DW2) supported the appellant’s account that he had not touched his sister. 

6. The sister PW1 was the only witness for the prosecution.  Certain facts were admitted by the parties, the most significant being the truth and accuracy of a medical report on PW1 of Dr Lai Kai Yip of the Accident & Emergency Department of Princess Margaret Hospital, who had examined her at 23:28 hours that evening.  

7. The report was in these terms :

“-    The above named patient claimed she was repeatedly assaulted by her brother and father. 

-  On day of attendance, she was assaulted by her brother with fist again at 19:00 hr with right facial injury.  There was no head injury or limb injury. 

-  On physical examination, there was mild tenderness over right face.  No bruise or wound.  No focal neurology. 

-  She was referred to Medical Social Worker for counseling. 

-  Patient rejected shelter for time being and she was discharged on 06/10/2008.”

8. This was a case that ultimately turned on the magistrate’s assessment of the credibility of the witnesses. 

9. The magistrate gave the reasons why he believed PW1 and rejected the evidence of the appellant and his father and girlfriend. 

10. In normal circumstances a judge sitting in the Court of First Instance is reluctant to interfere with the magistrate’s findings as to the credibility of witnesses unless it can be shown on the papers that he may have erred in his assessment. 

11. In this case despite the magistrate’s otherwise very careful assessment of the evidence there is one matter that causes me some concern.  In his assessment of the evidence of PW1 the magistrate said :

“I found that the mark on PW1’s face supported her evidence that the defendant has punched her in that area.  However, I also noted that there was no bruising detected at this spot and there was no marks found for the prodding on PW1’s forehead.  I found in conclusion when considering the eye area injury that I was satisfied that any bruising that might arise from a punch had not yet manifested itself as the examination had taken place the same day as the assault. …”[My emphasis]

12. The magistrate appears to have taken the view that PW1’s evidence was supported by the fact she had a mark on her face.  This was not the magistrate’s only reference to there being a mark on PW1.  At the conclusion of his Statement of Findings he said :

“I found that at the end of the day that I was satisfied beyond reasonable doubt that the defendant had prodded PW1 twice in the forehead and then he had with hostile intent punched PW1 on her right side face causing her pain and an injury mark (which was a battery) and I convicted him as charged.” [My emphasis]

There was however no evidence of a mark on PW1’s face. 

13. Despite Miss Chan’s valiant attempts to persuade me that the doctor’s statement that “On physical examination, there was a mild tenderness on the right face” meant that there was objective evidence that PW1 had been injured in that area, I am not convinced.  

14. I am satisfied that there was probably nothing more than a reference by the doctor to the fact that PW1 herself complained of pain in this area when she was physically examined.  It would not therefore be evidence independent of PW1 supporting her evidence of an assault by the appellant. 

15. I am satisfied that the magistrate was mistaken in thinking there was any evidence of a mark supporting PW1’s account. 

16. It may be that the magistrate would have reached the same conclusion as to the credibility of PW1’s account in any event, but I find I cannot be satisfied that that is necessarily so. 

17. I must therefore allow the appeal and set aside the appellant’s conviction.