HKSAR v. AGACER JAMES C

HCMA1075/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1075 OF 2008

(ON APPEAL FROM TMCC 3193 OF 2008)

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J U D G M E N T

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1. The appellant seeks to appeal against his conviction by Mr Smout at Tuen Mun Magistrates’ Court on a charge of common assault, contrary to common law and section 40 of the Offences Against the Person Ordinance, Cap.212, despite the fact that he pleaded guilty to the charge.

2. The charge alleged that he had assaulted Chan Kwok Tung outside Kam Tin Post Office in Kam Tin Road on 6 August 2008.

3. The history of the matter is important.  When the matter first came before the court on 3 September 2008, the appellant said he would plead not guilty to the charge and he said that he would use the Duty Lawyer Scheme.  The magistrate warned the appellant to approach the Duty Lawyer Scheme without delay and not to leave the matter until the eve of trial. 

4. When the matter came before the court again on 17 October 2008, the appellant was represented by Mr Duncan Percy who was instructed by the Duty Lawyer Scheme.  Mr Percy told the court that he anticipated a plea of guilty and asked the matter to be stood down for 15 minutes in order to take instructions from the appellant.  The magistrate agreed to that course.

5. Forty-one minutes later, the matter resumed before the magistrate.  The appellant entered a plea of guilty to the charge.  The magistrate asked the appellant to listen to the facts of the case and indicate if he admitted them or not. 

6. Those facts were to be effect that the victim had been driving his car along Kam Tin Road and had sounded his horn to alert a woman pedestrian who had run out into the road.  After the victim had travelled a short distance and was outside Kam Tin Post Office, a male later known as the defendant ran out into the road and stopped his vehicle and accused him of sounding his horn.  The victim explained why he had done so but he had been scolded by the appellant with foul language.  The victim had then told the appellant to go home whereupon the appellant had struck him with his fist twice on the rear of his head and neck. 

7. After the reading of the facts, the appellant said that he admitted them.  The magistrate then convicted the appellant and Mr Percy mitigated on his behalf.  He told the court that the appellant was on sick leave following a head injury.  He told the magistrate that the appellant was incensed by the victim using the horn in an aggressive manner.  He said that there had been an argument and the victim had spat in the appellant’s face and in a moment of anger, the appellant had struck the victim.  On hearing that the appellant was subject to a binding over order in respect of a similar offence that had occurred in a Wellcome supermarket, the magistrate adjourned the matter for the preparation of a community service suitability report.

8. The matter came back before the court on 31 October 2008.  It appears that the report was not favourable and that the appellant must have behaved in an unacceptable way to the probation officer because Mr Percy told the court that the behaviour was totally unacceptable and he also said that the appellant retracted the suggestion that he had pleaded guilty simply to avoid wasting time. 

9. The magistrate was told that the appellant was receiving psychiatric treatment for a bipolar disorder or had been receiving such treatment.  Mr Percy therefore asked the magistrate to adjourn the matter for a psychiatric report and the magistrate adjourned the matter for the preparation of probation and psychiatric reports.

10. When the matter came before the court again on 21 November 2008, the court had before it the reports and with the appellant’s consent the court made an order that the appellant be put on probation for 12 months with the condition that he receive such psychiatric treatment as was required and he receive treatment in respect of his alcohol dependence.  

11. I have summarised the history of the matter because this was relevant to the three grounds of appeal put forward by the appellant in his written grounds of appeal.  They are as follows :

“(1)   no sufficient evidence whereon to found the said conviction;

  (2)   malicious prosecution instigated by Station Sergeant Wan Shui Wah of Pat Heung Police Station; and

  (3)   insufficient time allowed by lawyer to give him time to get legal advice (less than ten minutes).”

12. It can be seen from the history of the matter that I have related that there is no substance to any of these complaints.  The appellant had himself admitted the facts which formed the basis of the charge.  Grounds 1 and 2 are accordingly without any substance.  Ground 3, the allegation of insufficiency of time is also without substance.  The appellant was represented by experienced counsel who sought 15 minutes in order to take instructions from the appellant.  Instead of the 15 minutes, the court did not sit for a further 41 minutes. 

13. It is clear that Mr Percy had an opportunity not only to speak to the appellant on that occasion but also before the next hearing because Mr Percy told the magistrate that the appellant retracted the allegation, that he had pleaded guilty to avoid wasting time.  There is therefore no substance to any of the grounds of appeal that have been put forward.

14. The appellant has written a letter to the court which he amplified upon before me.  The matters in that letter have no bearing on the validity of the appellant’s conviction.  He referred in particular to an allegation that his signature was forged by a police officer on a bail form.  That is a matter that is irrelevant to the issue before this court which is whether the appellant was rightly convicted.  It is a matter that he is free to take up if he wishes to do so but it does not affect the validity of his conviction.  I accordingly dismiss the appeal against conviction.