HKSAR v. LEE WAN HING AND ANOTHER

HCMA179/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 179 OF 1999

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J U D G M E N T

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1. The Appellants were charged with assault occasioning actual bodily harm and the offence was involved with the Appellants allegedly assaulting Lau Ka Kui, occasioning actual bodily harm to him on 29 December 1998 at Chong Hing Recreation Centre, High Island Reservoir, Sai Kung.

2. The victim gave evidence and both Appellants gave evidence before the Magistrate. The victim had suffered from a 3-cm diameter haematoma at the skull vertex and that was consistent with his being hit on the head by a blunt object. Having examined the evidence, the Magistrate believed the victim and did not believe either of the Appellants. As a trier of fact, he was fully entitled to do that. But the Magistrate was careful in examining the evidence and was not satisfied beyond a reasonable doubt as to the infliction of the haematoma by either of the Appellants.

3. Before me, both Appellants denied having assaulted the victim. That cannot be a ground of appeal. Furthermore, Mr Wong, the 2nd Appellant, addressed me on the torch on which there was evidence before the Magistrate. Mr Wong told me that it was impossible for him to possess a torch at the material time, but in view of the Magistrate's finding, the question of the torch is quite immaterial in this appeal. The Magistrate, after examining the evidence very carefully, made the finding that he was satisfied beyond a reasonable doubt that the 1st Appellant did punch the victim on three occasions and further that the 2nd Appellant did kick the victim, and those amounted to assaults. He did not make any finding that the 2nd Appellant possessed a torch with which the haematoma was inflicted. He therefore found both Appellants guilty of the offence of common assault which was not as serious as the offence of assault occasioning actual bodily harm with which the Appellants were charged.

4. I have read the record very carefully and I cannot find anything to show that the Magistrate was wrong either in law or on his decision on facts. In the circumstances, I would dismiss the appeal.