HKSAR v. FRANKE BERND BODO

HCMA464/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 464 OF 2002

(ON APPEAL FROM WSCC 770 OF 2002)

-------------

--------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant, Franke Bernd Bodo, a tourist from Germany, was convicted of two charges of Common Assault, contrary to Common Law and section 40 of the Offences Against the Person Ordinance, Cap. 212. The charges alleged that he, on 5 May 2002, at the High Block, Lift Lobby, City Hall, Hong Kong assaulted So Yuk Mui ("Ms So") and Ngan Hoi Yan ("Ms Ngan").

2. The facts are very simple and so are the issues in this appeal. Both victims, Ms So and Ms Ngan, were staff members of the City Hall Library. According to Ms So, at about 5 p.m. on 5 May 2002, she was instructed to handle a dispute which occurred on the ground floor of the City Hall.

3. The dispute arose as the appellant complained an ankle-weight, which he stored at the cloak room earlier, was missing. She observed that the appellant was irritated and threatened to call the police. There was a conversation for about 10 to 15 minutes, and after that the appellant walked over to the lift lobby.

4. Ms So by then believed that the dispute was resolved, walked over to the same lobby intending to take the lift to the third floor and return to work. A moment later, one of the lifts arrived. Among the people who came out from the lift was Ms Ngan, the victim in the second charge. The evidence then was that the appellant suddenly used his right body and elbow to bump the chest of Ms So. The bump was so forceful causing Ms So to move backward and knock on the door of the lift. Her pen was dropped to the floor. The appellant at that time smiled to her and said that he only did that accidentally as he was short-sighted. The second victim Ms Ngan helped her to pick up her pen. Whilst Ms Ngan was trying to return the pen to Ms So, the appellant twice leaned his head over to Ms Ngan. Ms Ngan was scared by this sudden move. She stepped back to avoid the appellant at which point the appellant elbowed the right hip of Ms Ngan. A senior staff member of the Library saw this and called the police. The appellant then left the City Hall and was eventually arrested by the police.

5. The appellant gave evidence and said that he was a tourist. At about 10 a.m. on 5 May 2002, he left a rucksack, a brief case, a mattress and an ankle-weight at a cloak room of City Hall for storage. He returned to the cloak room at 5 p.m. to collect his belongings and found his ankle-weight missing.

6. The first victim Ms So subsequently turned up but denied any responsibility for the loss of the ankle-weight. She had suggested the appellant to call the police. The appellant said he was upset at the time since it was a small matter, he decided to call the police some other time. The appellant decided to go to the toilet so he collected all his belongings. He put the rucksack on his back and carried the brief case with his right hand. He raised both hands to hold the straps of the rucksack with both of his elbows pointing outwards. The rucksack was heavy weighing between 23 and 25 kilograms in weight. It was suggested by the defence at the trial that this made it difficult for him to maneuver his movements. The rucksack was also very long in length, and as a result, his view was blocked.

7. He walked over to the lift lobby intending to take the lift to the toilet which located on a different floor. He said he did not see Ms So at the lift lobby at that stage. Before the lift arrived on the ground floor, he changed his mind deciding not to go to the toilet. He decided to leave the City Hall. When he turned around, he accidentally bumped Ms So with the rucksack and his elbow.

8. As to Ms Ngan, the appellant said that he did not know if she had come out from the lift. He said he only noticed her presence after he accidentally bumped Ms So and apologized to her. At that point, he heard a lady speaking words like "stupid and crazy" from behind. He was annoyed so he turned back, walked over to Ms Ngan asking her what she was saying. Ms Ngan did not answer him. He repeated the question, still Ms Ngan did not answer. According to the appellant, when he turned around, he might have accidentally brushed Ms Ngan with his rucksack and elbow. He said he then left the City Hall by walking slowly and he was stopped and arrested by the police outside the City Hall.

9. The appellant had emphasized at the trial before the magistrate that the entire incidents were accidental.

10. So the only issue before the magistrate, indeed before this court, was whether the bumping had been intentional or accidental as the appellant contended. The magistrate heard the evidence of the two victims, Ms So and Ms Ngan, and he also heard the evidence of the appellant. He gave their evidence very careful consideration and evaluation. He dealt with the question whether the acts by the appellant were intentional or accidental in his Statement of Findings, at page 17 of the appeal bundle in paragraph 5(3) :

" The whole series of actions, judging from the overall evidence, done by the Defendant, were intentional rather than accidental. They were nothing short of assaults. PW1 and PW2 were not Defendant's random targets of assault bearing in mind that there were other people at the lift lobby. He was angry that PW1 had denied responsibility for the loss of his ankle-weight. He let his anger out on PW1 by intentionally assaulted her. When he saw PW2 assisted PW1, he channelled his anger to PW2 and assaulted her. The Defendant had made a conscious selection, choosing PW1 and PW2 as his targets of assault."

11. The magistrate also found that the evidence of Ms So and Ms Ngan was consistent with each other, and he was satisfied that they were witnesses of truth. He found all the elements of the two charges proved, and proved beyond reasonable doubt. On this basis the magistrate found the appellant guilty.

12. In my judgment, there is ample evidence to support the magistrate's findings of guilt. It is a case of a finding of facts by the magistrate and is not a matter that an appeal court should substitute its own view for the magistrate's clear finding of facts.

13. Accordingly, the appeal is dismissed.