IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 662 OF 2008
(ON APPEAL FROM FLCC 1351/2008)
||CHAU WAI MAN（周偉文）
Before: Hon Beeson J in Court
Date of Hearing: 8 January 2009
Date of Judgment: 6 February 2009
J U D G M E N T
1. The Appellant was convicted after trial before Magistrate W. Lam of one charge of Assault Occasioning Actual Bodily Harm. He was fined $8000 and ordered to pay $2000 compensation to the victim. The Appellant had been charged originally with one count of Wounding, contrary to s.19 of the Offences Against the Person Ordinance, Cap 212, but the Magistrate was not satisfied that the evidence established that offence and convicted the Appellant of Assault Occasioning Actual Bodily Harm. The Appellant appealed against conviction only.
2. The basic facts of the prosecution case were not disputed. The Appellant was formerly one of the superiors of PW1 in a real estate company in which all the participants in this incident worked. Neither the Appellant, nor the witnesses, owned, or had shares in, the business.
3. On the date of the incident PW1 and two colleagues began drinking in the EU Bar sometime between 5pm and 6pm. PW1 had had a substantial amount to drink there – the three men consumed a minimum of a dozen bottles of beer up to about 6.45pm. The trio then moved to the After Five Bar to join the Appellant and other colleagues, a group of about 6 in total. The drinking continued, there was discussion of work-related matters and finger-guessing games were played, which resulted in the losers having to consume their drinks at speed. Wine was available as well as beer.
4. The evidence of DW1 and DW2 – colleagues of both PW1 and the Appellant – was that PW1 was affected badly by the length of time he had been drinking; the quantity he had consumed and his mixing of beer and wine. PW1’s own evidence confirmed his insobriety.
5. At around 10.35pm, allegedly consequent on what he referred to in his evidence as (unspecified) “rumours spread by bad people”, PW1 began swearing at and abusing the Appellant for real, or imagined, grievances relating to his work. He then stood up and pushed the table over, so that glasses and bottles fell to the floor and those around it were splashed with drinks.
6. The evidence of DW1 and DW2 was that PW1 fell to the floor amidst the broken glass, which could have caused injuries to his hands, or caused lacerations on his eyelid. PW1 denied he had fallen, although his evidence was that he had little, or no memory of events.
7. DW1 pulled PW1 outside the bar to prevent further trouble, but the Appellant followed and, allegedly, punched PW1 in the area of his right eye, causing bruising and, possibly, the 2 short lacerations on his right eyelid which later required 4 stitches. DW1 said that he and PW1 had already reached the other side of the road by the time Appellant and DW2 emerged from the bar and that the Appellant had never punched PW1.
8. DW2’s evidence was that when both PW1 and DW1 were outside, near the door of the bar, not far from him and the Appellant, PW1 had tried to rush towards the Appellant and he, DW2, had blocked him from doing so. He told the Appellant to “just leave it” and walked with him to the car park. He noticed that PW1 and DW1 were still near the door of the bar at that time. PW1 left in a taxi to which he was shepherded by DW1. He went to the hospital where lacerations on his right eyelid were sutured. The Medical Report did not refer to any other injuries, although photographs taken at the hospital show the ring and little fingers of his right hand apparently bandaged. PW1 could not explain why his fingers were bandaged.
9. A report was made to the police by PW1 the next day. The Appellant was arrested a week later but said nothing under caution.
Evaluation of Evidence by Magistrate
10. The Magistrate found that the Appellant had a motive to be angry with PW1 – he had been sworn at and abused by PW1, despite assistance that the Appellant had given PW1 in the course of his work in the past – assistance that PW1 acknowledged in giving evidence. However, he could see no motive for PW1 to frame the Appellant.
“I cannot see any possibility that PW1 could be framing the Defendant up regarding this incident.”[AB11/12 – para 5 (3)]
11. He found that PW1 had been drunk, but not so drunk that he was unconscious, or did not know what he was doing. PW1 insisted he had not fallen to the floor in the bar; nor had he banged his eye on any furniture or other hard object. The Magistrate accepted that evidence, but did not explain why, given PW1’s poor recall of events, he could be so sure that PW1 knew what he was doing, or that he had not fallen onto the glass.
12. The Magistrate considered the possibility that the Appellant had acted in self-defence, but as the Appellant said that he had never used force on PW1, he had not examined that aspect any further.
13. Overall the Magistrate found that PW1 was frank, honest and reliable and considered that he gave his evidence in a...