HKSAR v. SZETO YUK HING

HCMA 596/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 596 OF 1999

(On Appeal From North Kowloon Magistracy Case No. NKCC 1321/99)

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J U D G M E N T

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1. The Appellant appeals against her conviction in the Magistracy on a charge of Assault Occasioning Actual Bodily Harm. The grounds of appeal are effectively two, though they overlap.

2. The first ground is that the written Statement of Findings of the learned trial Magistrate was materially different from the reasons he announced orally at the end of the trial and the second ground is that there was no evidence that the Appellant and a male were in a joint enterprise situation when they assaulted PW1. The facts of the case showed that this appeared to be a dispute between PW1, who was a worker in a noodle shop, and the Appellant, who had a complaint about the cooking. There were, from the facts, two incidents, in one of which it appeared that the Appellant assaulted the victim and then quite soon thereafter, a second assault, when the male, possibly with the Appellant, became involved in another incident.

3. The Magistrate stated in reasons that he delivered orally at the end of the trial that he found that this was a joint enterprise situation between the Appellant and the unknown male, and that it was irrelevant in those circumstances who hit the victim on the head, whether the unknown male or Appellant. However, in his written Statement of Findings, he made it quite clear that he was left in no doubt, that it was the Appellant who had struck PW1 on the head with a folding stool and he found that the charge had been proved on that basis.

4. I should state, first of all, having looked at the material on file that this was not a joint enterprise case and could not have been a joint enterprise in the terms expressed by the Magistrate. Second, it is quite obvious the Magistrate changed the basis of his reasons for verdict between his oral reasons given in court and the time of writing his Statement of Findings.

5. In the circumstance, this conviction cannot stand, it is quashed and there is an order that the fine be returned.