HCMA 530/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 530 OF 2010

(ON APPEAL FROM ESCC 1685/2010)

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BETWEEN

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J U D G M E N T

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1.  The appellant was charged with Assault Occasioning Actual Bodily Harm, as well as an offence contrary to the Road Traffic (Parking on Private Roads) Regulations.

2.  Both charges arise from the fact that the appellant’s vehicle was parked in an unauthorised position in South Horizons Drive in April this year.  The appellant appeared before the Magistrate: he pleaded not guilty to the charge of assault occasioning actual bodily harm, but pleaded guilty to the road traffic offence.  He appeals both convictions.

3.  The appellant understandably was convicted on his own plea on the road traffic offence.  The charge alleging assault occasioning actual bodily harm went to trial.  The appellant was represented throughout the proceedings by a representative of Duty Lawyer Scheme.

4.  The appellant gave evidence.  At the conclusion of the trial the Magistrate convicted the appellant on an alternative charge of common assault.  She did this because she was unable, having heard the evidence, to rule out the possibility that the injury suffered by the person alleged to have been assaulted by the appellant was accidental.  She found, however, that in accordance with the evidence given by the two prosecution witnesses, the appellant had grabbed the camera, with which one of them, PW1, was taking a photograph of him committing the second offence.  She further accepted the evidence of the prosecution witnesses that the appellant threatened PW1 with the iron bar which he had used to commit the second offence.  She concluded, and she was correct in law when she did so, that this was a clear act of assault.

5.  The Magistrate had the advantage of seeing and hearing the witnesses, and was entitled to make findings as to credibility.  She accepted the evidence of the prosecution witnesses.  She gave compelling reasons as to why she rejected the evidence of the appellant.  In such circumstances, there is no basis for interference with her findings on credibility.

6.  When she found that the appellant acted in the manner described by the prosecution witnesses, she was correct in convicting of common assault.

7.  Insofar as the second charge is concerned, it is quite clear that at the time of entering his plea of guilty and agreeing the facts relating to that charge the appellant intended to plead guilty.  He has indicated today that he has thought about the matter subsequent to his conviction and has concluded that he was not at fault.

8.  The circumstances in which an appellate court will allow an appeal against a conviction following on plea of guilty are very limited and well defined.  A simple change of mind or change of heart on the part of an accused person is not a proper ground.

9.  The appellant was correctly convicted on both charges.  There is no merit in the appeal which is dismissed.