HKSAR v. WONG KWOK KWONG

HCMA642/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO.642 OF 1998

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J U D G M E N T

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1. After his trial in the Kwun Tong Magistracy the Appellant, Wong Kwok Kwong, was convicted of one charge of Assault Occasioning Actual Bodily Harm, contrary to s.39 of the Offences Against the Person Ordinance. By way of sentence, he was put on open probation for 18 months. This is his appeal against conviction.

2. The incident took place on 17 March 1998 at a public bus stop in Tseung Kwan O where the victim, a female, was assaulted and injured by the Appellant. It was the prosecution's case that both had been passengers on board the upper deck of a double decker bus. As the bus was approaching a bus stop the victim, Madam Jim, prepared to alight. The Appellant was in front of Madam Jim and both were proceeding down the stairs from the upper deck. While on the stairs Madam Jim bumped into the Appellant accidentally. When the bus eventually pulled up at the bus stop the Appellant was alleged to have grabbed hold of the victim and pushed her out of the bus with such force that she almost fell onto the ground. There was an argument between the two and the Appellant punched the victim's face with his fist. The events were witnessed by a fellow passenger Mr Cho who took pity with Madam Jim and scolded the Appellant with foul language for what he had done. The matter was reported to the police and the victim was treated in the United Christian Hospital.

3. Madam Jim and Mr Cho gave evidence at the trial respectively as PW1 and PW2.

4. The Appellant elected to give evidence and no defence witness was called. His account of the incident was that as he was going down the stairs from the upper deck, the victim pushed and bumped into him and he almost lost his balance. He told the victim to stop. After he alighted from the bus the victim ran up to him and held up her fists as if she was about to hit him. Believing she was about to hit him, the Appellant warded her off and in the course of which he thought he might have injured the victim. He maintained he had never pushed or punched the victim. At the time he was under the impression that the victim and Mr Cho were robbers and they were about to rob him.

5. The medical report of the victim was admitted as evidence at the trial by consent. On examination by a doctor in the hospital the victim was found to have sustained the following injuries :

" There was bruises over the lower lip with small laceration wound at buccal mucosa. No other site of injury was found."

6. After considering the evidence, the learned Magistrate found the prosecution witnesses to be honest and credible and accepted their accounts of the incident. He did not believe the Appellant and rejected his version of the events and went on to find that the prosecution had proved the offence against the Appellant. This is what he said at page 7 of his Statement of Findings :

" On the whole of the evidence here I have no doubt at all that there had been some argument as a result of an accidental bumping of the appellant by PW1. As a result of this the appellant pushed and pulled PW1 out of the bus, as both PW1 and PW2 attest to. She was then hit in the mouth by a deliberate punch from the appellant. I do not accept that the punch was accidentally done in the course of the appellant warding off PW1.

The injuries occasioned certainly amount to 'actual bodily harm', and I saw nothing sinister in the fact that the three loosened teeth are not mentioned in the medical report. ..."

7. There are eight grounds of appeal against conviction but they can be conveniently grouped under five headings the first of which is the learned Magistrate failed to consider the possible issues of self-defence and accidental contact. The second is that the Magistrate erred in concluding that PW2 was an independent witness; thirdly, he failed to give sufficient regard and or placed undue emphasis on the medical evidence, and the fact that it was the Appellant who reported the incident to the police. Fourthly, it was submitted that the Magistrate erred in drawing an inference of guilt from the available evidence and lastly, the Appellant's conviction was unsafe and unsatisfactory.

8. I think it would be appropriate to deal with the alleged erroneous finding by the learned Magistrate that PW2 was an independent witness. It was contended by Counsel for the Appellant that since the evidence might have suggested PW2 had threatened to assault and had used foul language against the Appellant and that after the incident at the bus stop he had talked to the victim, PW2 could not have been an independent witness. There was, however, clear evidence that PW2 was a passenger on board the same bus and that the victim and the Appellant were both strangers to him. PW2 had obviously taken pity on Madam Jim when she was assaulted. PW2's conduct thereafter was consistent with that of an officious bystander. The Magistrate noted that PW2 had a brief conversation with the victim about the incident but nevertheless found that PW2 was an honest and credible witness despite minor discrepancies in his evidence and that of Madam Jim. I do not find any justification in the criticism against the Magistrate's finding of the status of PW2 and his subsequent reliance on his evidence.

9. Once the Magistrate accepted the evidence of both Madam Jim and PW2 and found that she was pushed and pulled out of the bus by the Appellant, there was no evidential basis upon which would give rise to an issue of self-defence. In the course of being pushed out of the bus by the Appellant, any ensuing struggle by Madam Jim in resisting the Appellant's effort could not have given rise to a plea of self-defence for the Appellant. Likewise the contention of accidental contact must be looked at in the light of such findings. The injuries sustained by the victim in the course of being pushed out of the bus would be the mere result of the series of acts upon which the present charge is laid. In my view it is not open to the Appellant to argue that a singular act within that series of acts could have been an accident.

10. Throughout the trial the central issues before the learned Magistrate was whether the Appellant had assaulted the victim and if so, whether she had sustained any injuries as a result of the assault. Having heard the evidence from all the witnesses including that of the Appellant, the learned Magistrate rejected the Appellant's version of the events. On the Appellant's point that there was no mention of Madam Jim's three loosened teeth in the medical report, the Magistrate indicated he found as a fact that she did suffer such condition after the assault by the Appellant.

11. Suffice it for me to say that in coming to his findings, the Magistrate had carefully considered all the evidence and assessed the credibility and accuracy of each witness before coming to his findings. He had specifically found that the victim was not a witness who tended to exaggerate the incident or her injuries. On the facts before the learned Magistrate, he was entitled to draw the inferences as he did and I am unable to say, nor am I persuaded by Counsel for the Appellant that the conviction is in any way unsafe or unsatisfactory.

12. For the reasons given, this appeal is dismissed.