HKSAR v. FUNG YIM KEUNG

1997, NO. MA 557

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

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J U D G M E N T

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1. The appellant was convicted before a magistrate of a charge of common assault. He was fined $1,500 and ordered to pay costs in the sum of $1,000. He now appeals against conviction.

2. The facts are very simple. The incident took place at a bus stop where the appellant, having boarded the bus, did not pay the bus fare of $3.30. A quarrel developed between him and the bus driver in the course of which, the appellant got off the bus and went round to the off side of the bus. He climbed up to the driver's seat and punched the driver on the right side of his face. The driver was injured and had to take 3 days' sick leave from work. The incident was witnessed by an officer of the Correctional Services Department who was waiting for a bus at the same bus stop. He saw the appellant quarrel with the bus driver and punched the driver once on the head. He caught the appellant when he was running in his direction after hearing the driver shouting. A police officer saw the right side of the driver's face swollen when he arrived at the scene. In response to a caution by the officer, the appellant said: "I have not inserted the money, I lost temper and so I hit him."

3. The appellant gave evidence. He said that he had had two unhappy incidents with this driver on previous occasions. On this occasion, he had paid his fare but the driver pushed him and demanded him to get off the bus or he would call the police. After getting off the bus, the officer from the Correctional Services Department got hold of him and accused him of fooling around and asked to whom the appellant was associated with. As the appellant replied in the negative, the officer suggested to call the police. The appellant denied having made any admissions to the police officer.

4. The magistrate evaluated the evidence carefully and said in his statement of findings that he would not have convicted on the evidence of the driver alone. But he found the other two prosecution witnesses honest and reliable whose evidence fully corroborated the evidence of the driver. On the totality of the evidence, he convicted the appellant as charged. There is no merit in the appeal which must be dismissed.