HKSAR v. FONG SIU CHEONG

HCMA113 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY CRIMINAL

APPEAL NO. 113 OF 1998

(On Appeal from KTC 3368/97)

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J U D G M E N T

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1. The Appellant was convicted on 7th January 1998 for an offence of Common Assault. The incident arose after the Appellant was stopped by a traffic supervisor of the Tseung Kwan O Tunnel Co. He was driving a vehicle believed to be in excess of the authorised height limit. A dispute developed when the tunnel supervisor told the Appellant he was not permitted to drive through the tunnel. The victim gave evidence that the Appellant hit him forcefully 3 times with the back of his right hand on the chest causing him to sit down on the road.

2. Evidence supportive of this account was given by a second traffic supervisor who had come across to take particulars of the Appellant's vehicle. This witness said that he had seen the assault take place. Apart from the Appellant giving evidence on his own behalf, there was an independent defence witness, Mr. Kwok Kwai Man, a dump truck driver by occupation, who had come to see whether the Appellant needed assistance, when he saw his vehicle stopped beside the road.

3. Mr. Kwok said that he did not watch the Appellant and the tunnel staff throughout the argument, but he did not see the Appellant hit the tunnel staff. He did say that he saw one of the tunnel staff sit down, get up and sit down again. The Magistrate having examined the evidence convicted the Appellant. The Appellant's main submission at the appeal was that the Magistrate should not have accepted the evidence of the two prosecution witnesses who, as they were tunnel supervisors working together, might be expected to support each other's stories. He said that there were lots of doubts about the evidence of the prosecution witnesses, as they lied when they gave evidence in court. He said that the the defence witnesses, himself and Mr. Kwok, gave adequate proof of what had really happened.

4. The Appellant was represented at trial by the Duty Lawyer Scheme. The Magistrate had the advantage of hearing the witnesses and in particular hearing the cross-examination of those witnesses. He examined that evidence in a fairly lengthy Statement of Findings. He said that he found the tunnel supervisors to be honest and truthful witnesses who gave credible evidence and although he accepted there were some discrepancies between their accounts, he considered that those discrepancies were either immaterial or insignificant. He found that the defence witness Mr. Kwok was an honest witness, but that he was not watching the Appellant at the time of the alleged assault.

5. In looking at the evidence, the Magistrate took into account that the Appellant was a man of clear record and gave himself the appropriate direction on propensity and credibility. He was satisfied beyond reasonable doubt that the Appellant had hit the tunnel supervisor three times in the chest. He found that those actions constituted an assault for which the Appellant had no lawful excuse.

6. Although self-defence had not been raised as a specific defence by the Appellant, the Magistrate considered it in any event.

7. I am satisfied having read the transcript of the trial and the Magistrate's Statement of Findings that the Magistrate directed his attention to the relevant matters and that his findings of fact cannot be disturbed.

8. This appeal against conviction is dismissed.