HKSAR v. LAW SAI WING

HCMA514/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.514 OF 1998

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J U D G M E N T

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1. The Appellant appeals against his conviction for common assault by the learned Magistrate on 12th May 1998 after trial.

2. The Prosecution's case was that on 2nd March 1998 at 6.35 p.m., PW1, a senior foreman with the Housing Authority, together with PW2, both in uniform, were patrolling the car park of Fung Chak House, Choi Wan Estate, for illegally parked vehicles. They came across a vehicle and while inspecting it, the Appellant arrived by taxi, and claimed to be the owner of the vehicle being inspected by PW1 and PW2. When PW1 asked the Appellant whether he had rented a car-parking space, the Appellant swore at him and a quarrel ensued. During the quarrel, the Appellant grabbed PW1's tie with his right hand and punched PW1's chest with his left hand. PW2 tried to intervene. At this stage a female also alighted from the taxi and the Appellant went over to her, using her mobile phone to make a call. PW1 at this stage also went to the entrance of the car park and from inside a vehicle there obtained a mobile phone to make a report to the police. Subsequently police arrived and PW1 pointed out to them the Appellant as the person who had punched him in the chest.

3. PW1 and PW2 gave evidence in support of this incident. PW3, a constable who arrived on the scene after PW1 had made the report, also gave evidence as to the complaint made to him by PW1 at the scene. He told the Court that when he asked the Appellant what happened, the Appellant said "Nothing", and then added "They booked the vehicle without reason. I did not assault them."

4. When PW3 declared arrest on the Appellant, the Appellant said :-

"What? You arrest me? I don't feel well either."

Then the Appellant suddenly fell to the ground and whilst on the ground, made a call on his mobile telephone requesting a medical check. Subsequently, the Appellant was taken to United Christian Hospital as he said he was not feeling well. PW3 testified that he had been with the Appellant all the time since he came onto the scene, in the ambulance, and until the Appellant saw a doctor in the United Christian Hospital, and that during that time the Appellant did not punch himself in the face.

5. The Appellant did not give evidence but called two witnesses. The first defence witness, Yip Kwok Wing, was walking past the ground floor of Fung Chak House at the material time and saw two persons arguing there, one was the Appellant and the other was a person in uniform. He saw them quarrelling but did not know what the quarrel was about. He saw a couple of other men, also in uniform, pushed the Appellant, but did not see the Appellant do anything. He did not know the Appellant.

6. The second defence witness was Dr Chan Chi Keung of the Accident & Emergency Department of the United Christian Hospital. At 7.45 p.m. on 2nd March 1998, whilst on duty, he had examined the Appellant and found the Appellant to have a small superficial abrasion wound over his lower lip, red areas over both cheek and mild pain and tenderness over left upper chest and right leg. The abrasion to the lower lip, although small, could be observed when close to the Appellant face to face, and the doctor found it to be a fresh injury. The red areas could have been caused by being assaulted or bumped, and all the injuries were consistent with the Appellant having been assaulted.

7. Having considered all the evidence, the learned Magistrate found PW1 and PW2 to be honest and reliable witnesses despite some discrepancies in their evidence, which the Magistrate considered to be minor and immaterial to the issue he had to decide. The Magistrate also found the defence witness to be an honest witness and accepted his evidence, but found as a fact that when he came onto the scene and saw the quarrel, the punching of PW1 by the Appellant had finished; that what the defence witness saw was the quarrel between the Appellant and the other Housing Authority staff, after PW1 had gone to make a report to the police.

8. The Magistrate took account of PW3's evidence, which he accepted, and found from it that the behaviour of the Appellant to be a man planning to establish a defence against a future charge. The Magistrate did not accept that the injury to the Appellant's lips were caused as a result of being assaulted by PW1 because in that case, the Magistrate did not think that the Appellant would have said "Nothing" to PW3 when asked what had happened, but would have told PW3 of his being assaulted instead of defensively saying "I did not assault them".

9. The Magistrate found as a fact, on the evidence before him, that :-

1. the Appellant had grabbed PW1's tie and punched PW1 in the chest;

2. that in doing so, he was not acting in self-defence, nor did he have any lawful excuse, but did so in anger in the belief that his vehicle was about to be booked.

From these findings, the learned Magistrate convicted the Appellant of common assault.

10. Having gone over the evidence in this case and the Reasons of Finding of the learned Magistrate, I can find nothing wrong with the conclusions that he had come to. Mr Law now appeals against the Magistrate's decision on the basis that there was evidence from PW1 and PW2 alleging that the Appellant had grabbed them by the neck and put his arms around their neck and yet there was no medical evidence of any injuries to their neck. That is not the evidence given by PW1 and PW2 as shown by the transcript of evidence.

11. When in a case such as this where there are two conflicting versions of events - one by the prosecution and the other by the defence - it is for the trier of facts to resolve that conflict by making findings based on the evidence which he accepts or rejects and an Appeal Court would be slow to interfere with such findings - unless it can be shown that these findings were made wholly unsupported by any of the evidence. In this case, all the findings of the learned Magistrate were made based on evidence before him. Having had the advantage of seeing and hearing the witnesses, it was a matter entirely for him to make his findings based on those evidence.

12. I can see nothing wrong with the findings made by the learned Magistrate in this case, and accordingly the appeal is dismissed.