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Hksar v Fong E Fong Candy

Judgment Cited in Precedent Map Related
Vincent
Judgment Date30 December 2020
Neutral Citation[2020] HKCFI 3133
Year2020
Judgement NumberHCMA108/2020
Subject MatterMagistracy Appeal
CourtCourt of First Instance (Hong Kong)
HCMA108/2020 HKSAR v. FONG E FONG CANDY

HCMA 108/2020

[2020] HKCFI 3133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 108 OF 2020

(ON APPEAL FROM ESCC 754 OF 2019)

_____________________

BETWEEN
HKSAR Respondent

and
FONG E-FONG CANDY Appellant

_____________________

Before: Hon Toh J in Court
Date of Hearing: 24 September 2020
Date of Judgment: 30 December 2020

_______________

J U D G M E N T

_______________

1. The appellant was convicted after trial of one charge of Common Assault and fined HK$3,000. The appellant appeals against her conviction.

PROSECUTION CASE

2. In March 2019 at around noon, the victim (PW2) was in St Paul’s Hospital for medical consultation. He was in a wheelchair and accompanied by his daughter Madam Hong Mon (PW1) and a domestic helper Delia Sasil (PW3). They were waiting outside the consultation room. The appellant suddenly appeared and tried to talk to PW2. Upon seeing this approach, PW1 immediately reported to the police and requested the defendant to leave. At that time, PW3 turned the wheelchair round in order to prevent the defendant from approaching PW2. There was a struggle as the defendant and PW3 were grabbing for the wheelchair handle. In the midst of this struggle, the defendant grabbed PW2 by throwing her arm around his neck (see Photo P4(2) and P4(3) which were photos taken by PW1). Subsequently nurses turned up and separated the parties. The incident was also captured by CCTV which was produced as Exhibit P1. The appellant was subsequently arrested and under caution she said she held onto PW2 because she was afraid that he would fall (see Exhibit P6). She also gave a similar account in Exhibit P7.

DEFENCE CASE

3. The appellant elected not to give evidence nor called any witnesses. The Defence submitted that the appellant had not assaulted PW2 and that in order to regain her balance had accidentally grabbed PW2 and defence counsel invited the court to view the CCTV footage closely. Further, without any basis in evidence, defence counsel submitted that the appellant had made an honest mistake in her cautioned interview by “imagining” that she held onto PW2 because she was afraid that he would fall.

MAGISTRATE’S FINDINGS

4. The learned magistrate made very extensive analysis of each prosecution witnesses’ evidence. He was fully aware of the background of unhappy events between the appellant and the prosecution witnesses and he actually warned himself to approach the evidence of both PW1 and PW2 with caution because of this.

5. The learned magistrate also dealt with the minor inconsistencies in PW1’s evidence and accepted her explanation that the account she gave to the police was less detailed than her account in court because she was anxious to bring her father home for dinner and also the learned magistrate found that these inconsistencies were not material. He also found that PW1’s evidence was consistent with the CCTV footage which was produced in court and so he accepted PW1’s evidence as truthful and reliable.

6. The learned magistrate also accepted that the photos taken by PW1 (Exhibit P4) were a true depiction of what had happened and also the CCTV footage showed clearly the events that ended in the assault on PW2. The learned magistrate had very carefully made a graph of each of the scene in the CCTV footage with description as set out in his Statement of Findings.

7. The learned magistrate also considered the evidence of PW2 and concluded based on the evidence and the CCTV footage and the facial expression of PW2 in the photograph that PW2 did not consent to being grabbed by the appellant. PW3’s evidence was also consistent with the photographs and the evidence of the other prosecution witnesses and although she had language difficulty in understanding what was said, her evidence was that the appellant had grabbed PW2’s neck, and that was consistent with the photographs and that she heard PW2 saying to the defendant, ‘Say away from me.’

8. The learned magistrate was well aware of the fact that the defence was that the...

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