HKSAR v. LEUNG SUN-HOI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPELLATE JURISDICTION

Magistracy Appeal No.619 of 1997

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J U D G M E N T

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1. This is an appeal by the appellant against a conviction of an Assault Occasioning Actual Bodily Harm imposed by the learned Magistrate, Mr McNair.

2. It is contended on behalf of the appellant that there were material irregularities in the conduct of the trial and Mr Mullick for the appellant has outlined those today. Secondly, it is indicated that the conviction was unsafe and unsatisfactory. Mr Mullick has outlined what he considers to be material discrepancies between the accounts given of this incident of assault by the victim and her son and that which they gave to the investigating police officer when they gave their witness statements. It is correct that there were discrepancies and inconsistencies and, in his statement of findings, the Magistrate dealt with those and concluded that PW1 and PW2 were giving correct evidence of what had happened and that they were honest and reliable witnesses.

3. I have been through the transcript in some detail and I have considered the Magistrate's statement of findings with great care. I am satisfied that he had before him at all times the matters that he was supposed to consider, in particular he took into account the fact that because this was an assault by a husband on a wife that there may have been motives for the victim and her son to exaggerate or give dishonest evidence. He had the advantage of seeing those witnesses. He also had the advantage of seeing the officer who took the statements. He accepted the evidence of PW1 and PW2. There was no evidence to refute this in any way. The officer's evidence was of little use in respect of the decision on credibility because the officer was giving evidence about the taking of a witness statement some two months after the incident. The Magistrate saw and heard him and he was entitled to refuse to accept his evidence.

4. For those reasons I find the conviction was sound and I uphold the Magistrate's decision.

5. I have considered the sentence that was imposed by the Magistrate. I consider it a proper sentence in the circumstances. I note that this is the appellant's second offence of assault occasioning actual bodily harm. The appellant already has a previous offence in 1990. The Magistrate took into account the circumstances of the assault and also the relationship between the parties. He found a fine inappropriate and considered that a sentence with an element of deterrence appropriate. I agree with him and I confirm the sentence to be immediate imprisonment for two months.