R. v. HO KWOK WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1164 OF 1996

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J U D G M E N T

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1. The appellant was convicted of common assault.

2. The prosecution evidence was based on the evidence of the victim PW1. Appellant and the victim PW1 were living in the same flat. PW1 told the magistrate that because the appellant's possessions were blocking his way, he removed them. The appellant came out and hit him with his elbow and when he fended it off, the appellant hit him with a stool as a result his hand became swollen. He then reported to the police. PW1 also alleged that the appellant had dropped a Chinese pot onto the ground and threatened PW1. The appellant told the magistrate that he had a dispute with PW1 because PW1 said his refrigerator was blocking his way. He said he did not fight with PW1. He brushed PW1's hand away to stop PW1 from moving his refrigerator. He said it might be when they were pushing the refrigerator that he brushed PW1's hand and that might have caused the injury.

3. The magistrate in his statement of findings said this :

" The other allegations of dropping a chinese pot onto the kitchen floor and subsequently threatening the victim, are not relevant to this appeal, save that they impact upon the credibility of the victim. Suffice it to say, that I concluded I could not be sure of the victim's veracity, accuracy or reliability in respect of those allegations. Indeed, had the accused not chosen to give evidence, I should have been extremely loathe to rely solely on the account of the victim."

4. It would appear that if the appellant did not give evidence, the magistrate would not have convicted the appellant.

5. The magistrate went on to say :

" Nevertheless, the accused did testify, and admitted there was a dispute over his possessions, and that he had brushed away the right hand of the victim during that dispute. ...

I regarded the evidence of the accused as an admission of assault. Not only was there physical contact, which was intentionally applied, but it was done in a dispute situation, which caused the victim to become afraid. In my view, the essential requirement of hostility was plainly present. I therefore convicted the accused of the relatively minor assault of brushing away the hand of the victim."

6. The appellant appealed mainly on the ground that the magistrate failed or refused to consider whether what the appellant did was in defence of his property and the magistrate failed to give sufficient weight to the appellant's evidence.

7. The magistrate relied on the appellant's evidence to convict the appellant. The appellant's evidence that he brushed away PW1's hand in the course of pushing the refrigerator to prevent PW1 from moving it was not an admission of assault. Mere physical contact with PW1 without his consent was insufficient to amount to assault in the circumstances where the appellant did so purportedly to protect his property.

8. Mr Liu for the prosecution indicated that the prosecution would not object to the appeal being allowed.

9. There being no sufficient evidence to support the magistrate's finding of assault, the appeal also not being opposed by the prosecution, the appeal is allowed and the conviction quashed. The sentence is set aside and fine to be repaid to the appellant.