HKSAR v. MARK ANDREW HAZELTON

HCMA 31/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 31 OF 2003

(ON APPEAL FROM WSCC 1564/2002)

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J U D G M E N T

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1. This Appellant faces two charges of common assault. He was charged that on 30 August 2002 he twice assaulted the hairdresser of a lady colleague of his: once in the hairdressing salon and once in the street some distance from the salon. He appeared before Anthony Yuen, Esquire in the Magistrate's Court at Western, and pleaded not guilty to both charges. But on 11 December 2002 the magistrate convicted on both charges, and fined him HK$2,000 on each charge. He now appeals against conviction, extension of time for giving Notice of Appeal having been granted by the Magistrate.

2. The prosecution's case was in effect that the Appellant assaulted the hairdresser twice for no reason at all. The defence case, on the other hand, was that the first incident involved his defending his lady colleague against an indecent assault by the hairdresser, and that the second incident involved his being harassed by the hairdresser and other members of the salon's staff.

3. There was a conflict of evidence for the Magistrate to resolve. Normally an appellate court is slow to interfere with how a trial court resolves such a conflict. But in the present case there are two matters for concern. First, the reason which the Magistrate gave for rejecting the defence evidence is that it was against common-sense to think that the hairdresser would indecently assault the Appellant's lady colleague. The trouble is that there is also nothing which commends itself to common-sense in the idea that the Appellant would assault the hairdresser for no reason at all. And of course the burden was on the prosecution to prove beyond reasonable doubt an assault by the Appellant while there was no burden on the part of the Appellant to prove an indecent assault by the hairdresser. It is a cause for concern that the Magistrate never considered whether the Appellant might have honestly albeit mistakenly believed that the hairdresser had indecently assaulted his lady colleague. If the Magistrate had considered that, he might not have felt sure that the defence evidence lack credibility. He might then have felt some reasonable doubt in the matter.

4. Secondly, the Magistrate said that the prosecution witnesses' evidence fit "well like jigsaw". Yet I detect that there were contradictions between the prosecution witnesses' evidence. If the Magistrate had said that he accepted their evidence despite the contradictions, or even if he had said nothing about contradictions, that would be different. But he appears to have thought that there were no contradictions, and used that as a basis for convicting.

5. By reason of these two matters for concern, I regard these convictions as unsafe and unsatisfactory. Accordingly, I allow the appeal and quash both convictions and set aside the sentences.