HKSAR v. WONG KWONG WAI

HCMA 856/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 856 OF 2008

(ON APPEAL FROM TWCC 2441/2008)

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trial of one count of assault occasioning actual bodily harm, contrary to common law and punishable under s. 39 of the offence against the Person Ordinance, Chapter 212, Laws of Hong Kong.  He was sentenced to four months’ imprisonment.  He now appeals against both the conviction and sentence.

2.  In essence the prosecution case against the Appellant was that on 1 August 2008, the Appellant went to the premises named in the charge in order to collect rent from PW1, the victim.  When PW1 refused to pay the rent, the Appellant used exhibit P1 which was a mop to assault the victim causing him injuries to his right forearm.

3.  The Appellant who gave evidence at trial put forward a different version of the events indicating that it was PW1 who was the aggressor by throwing water at the Appellant and then picking up his walking stick to strike the Appellant.  He, the Appellant retreated from PW1’s room to the corridor and used the mop to block the doorway so that PW1 could not leave his room.

4.  The only grounds of appeal against conviction filed by the Appellant on 24 September 2008 are that there was no evidence, or no sufficient evidence to support the conviction.

5.  On the hearing of the appeal in which the Appellant represented himself, the Appellant repeated many of the matters that he brought to the attention of the learned Magistrate in his evidence and final submissions at trial.  These matters included the fact that PW1 was an unreliable witness who had framed him, the Appellant up, the fact that there was no eye-witness to the incident, whether the Appellant had kicked open or pushed open the door to PW1’s flat and the fact that the prosecution had failed to prove that any injuries suffered by PW1 were caused by him the Appellant.

6.  In his reasoned and thorough statement of findings, the learned Magistrate identified the fact that the only real issue in the case was the question of credibility of PW1 on the one hand and the Appellant on the other.  He was alive to the fact that PW1 was a person of bad character having specifically referred to his past criminal record of convictions.  He correctly proceeded with the utmost caution before relying on such a witness.  Similarly, he referred to the fact that the Appellant was a person of good character and directed himself accordingly.

7.  With regard to any inconsistencies between the evidence of PW1 and the statement that he had made to the police with regard to this incident, the learned Magistrate found these to be “more apparent than real and …… had no hesitation in rejecting the criticisms levelled at PW1’s evidence” by the Appellant.

8.  At the end of the day, the learned Magistrate was perfectly entitled to accept the evidence of PW1 as being truthful, and reject the evidence of the Appellant.  Indeed the learned Magistrate gave reasons for coming to these conclusions on credibility, and it is not for this court to interfere with the learned Magistrates’ findings on this issue.

9.  With regard to the medical evidence the learned Magistrate found this to be consistent with the evidence of PW1, whose evidence he had already accepted as being truthful.  The doctor testified that the mop (exhibit P1) could cause the injuries which were found on PW1’s right forearm.  The learned Magistrate accepted this evidence.  Having accepted the evidence of PW1 and rejected that of the Appellant, a conviction was inevitable.

10.  There is no merit to the appeal against conviction.  I dismiss the appeal and confirm the conviction.

11.  With regard to the appeal against sentence of four months’ imprisonment, the learned Magistrate was of the view that a deterrent sentence was required to deter others from committing like offences.  This Appellant was using violence as a means of collecting rent from a 67-year-old man in extremely poor health.  The application is devoid of merit and I confirm the sentence of four months’ imprisonment.