HKSAR v. LO YEUNG YAU

HCMA 578/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 578 OF 2002

(ON APPEAL FROM TMCC 375/2002)

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J U D G M E N T

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1. This is an appeal against the Appellant's conviction after trial by a Magistrate of a single charge of wounding contrary to sec. 19 of the Offences Against the Person Ordinance, Cap. 212. An appeal against the sentence of eight months imprisonment has been abandoned.

2. The Appellant was a kibitzer in the basketball court at Butterfly Estate, Tuen Mun. One of the players took exception to his advice. There was an argument. The Magistrate found as a fact that the Appellant launched an assault on the player. There was a scuffle. The player picked up a stool and chased off the Appellant. He left the basketball court only to return a few minutes later armed with a spade with which he hit the player who sustained a scalp injury as a result. The Appellant was immediately remorseful and offered compensation to the player if the injury were reported as an accident. The police were summoned. The player pointed out the Appellant to the police constable. Both before and after caution the Appellant made inculpatory comments to the constable.

3. Apart from the player and the constable two other persons were called as witnesses.

4. The Appellant elected to give evidence. He claimed that it was the player who had assaulted him and had pursued him out of the basketball court waving a stool: he had picked up the spade solely in self-defence: they had returned to the basketball court: the stool, not the spade, had injured the player: he had not made any admissions to the constable.

5. This was a matter where the credibility of the witnesses was the decisive issue. The Magistrate saw and heard the witnesses. He accepted the evidence of three out of the four prosecution witnesses, giving detail of what they said during the trial and convincing reasons why he believed them. He was cautious in his approach and did not rely on the evidence of the fourth witness who did not impress him. Particularly understandable is his acceptance of the constable's evidence as to what the Appellant said at the scene. He was aware of and dealt with the discrepancies that emerged in the prosecution witness' evidence. He directed himself fully.

6. He rejected, for equally cogent reasons, the Appellant's version of events.

7. An appeal is not a retrial on the facts. There can be no valid criticism of the conviction. The appeal is dismissed.