HKSAR v. NASIR AHMAD

HCMA 402/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 402 OF 2013

(ON APPEAL FROM TMCC 4336/2012)

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J U D G M E N T

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1.  The appellant was convicted after trial of one charge of assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212. He was sentenced to 2 months’ imprisonment. He now appeals his conviction.

The Prosecution Case

2.  The only prosecution witness, Shahid, testified that prior to this incident he there was some previous dispute between him and the appellant in relation to arrears of rent and he made a complaint to Kam Tin Police Station.  Afterwards, he drove his truck to the depot, and was later joined by two police officers.  As the appellant and his gang could not be found there the police left.  Shahid said that it was around midnight that the appellant arrived at the depot with two other persons.  The appellant was holding a one metre long wooden bar whilst the other two held a glass bottle and a one foot long rod respectively.  Shahid immediately dialed 999 but after he got through he was immediately hit by the appellant on his right forearm first and someone hit his head from the back.  Shahid fell off but was held up to stand.  At one stage he fell down but was held up and hit on his legs around the knee areas, causing his knees to bleed.  He said that the incident lasted about 1‑2 minutes.  He said he was subsequently held to his truck and whilst he was about to drive away, something was thrown onto his windscreen of his truck whilst the others loaded something onto his truck.  He immediately drove to Kam Tin Police Station and made a report.  He was then sent to hospital and was to have sustained “multiple abrasions at anterior surface of left thigh, left leg and right leg.”  A photograph taken from the hospital, also showed that Shahid’s left knee were injured and there were some blood stain on his shorts.

The Defence Case

3.  The appellant testified that he resided in a container located at the depot in question at the material time, which belonged to his friend, Bilan.  He denied to have owed Shahid any rent and said he barely knew Shahid.  He said that around midnight on the day in question he saw from inside the container that Shahid was breaking in the gate of the depot with the rear side of the truck, and then Shahid, together with three other unknown kicked the door of the container where he was residing and threatened to beat him up.  He managed to run away from the depot and observed from a “small mountain” near the depot that Shahid’s gang was loading air‑conditioners into his truck.  He then informed Bilan that Shahid was stealing.  He also told the court how he saw the loads accidentally fell on Shahid’s leg and made him bleed.

4.  The appellant called two defence experts whose evidence was that basically that it was very likely that there was collision between the rear side of Shahid’s truck (or any other vehicle having the same paint on the vehicle surface) and the gate of the depot.

Grounds of appeal

5.  The appellant advanced no specific grounds of appeal.  At the appeal hearing he repeated his evidence at the trial briefly and said that Shahid was the one who went there to steal and he had not beaten up anyone.

Respondent’s reply

6.  Counsel for the respondent submitted that this case turned on the credibility of Shahid and the appellant, and the magistrate, who had heard and seen the witnesses, was entitled to making findings as she did.  Having found that Shahid was a witness of the truth, there was ample evidence to convict.

My judgment

7.  The magistrate had fully analysed the evidence of Shahid and that of the appellant.  I have no doubt that the magistrate was alive to the disparities as referred to in the defence final submission. The magistrate, as the sole finder of fact, could decide whether they are true inconsistencies or disparities, whether they are material to the issues which the magistrate had to decide, or whether, on the other hand, they were simply peripheral, irrelevant and insignificant.  The magistrate was entitled to find those insignificant and cast no doubt on the credibility of the victim.

8.  The magistrate considered the following areas of the appellant's evidence: his allegation of his detail observation of Shahid’s group entering the depot from a peephole in the container; that he managed to escape to a small mountain nearby but was yet above to see how Shahid sustained his injuries; that he chose to call Bilan but not reporting to the police; and that there was no report made to the police by Bilan had his property been stolen and damaged as claimed by the appellant.

9.  The magistrate had applied common sense and daily experience in setting out her thinking process as to why she was of the view that the appellant’s evidence was incredible and unworthy of belief.

10.  This appeal is devoid of merit.  I dismiss the appeal and affirm the conviction.