IN THE SUPREME COURT OF HONG KONG
MAGISTRACY APPEAL NO. 748 of 1989
Coram: de Basto, J.
Date of Hearing: 1 August 1989
Date of Delivery of Judgment: 18 September 1989
J U D G M E N T
1. This is an appeal against a conviction of assault occasioning actual bodily harm.
2. In outline the Crown’s case was that the Appellant boarded PW1’s taxi. At the Appellant’s destination there was an argument the Appellantclaimed, probably rightly, he was short-changed 10 cents by PW1. The Appellant alighted and PW1 started to drive away whereupon theappellant kicked the taxi. PW1 got out of his taxi and went up and pushed the Appellant on the shoulder. The Appellant then punchedhim.
3. PW1 described his nose as broken (a common expresssion in Hong Kong when a person is struck on a part of the body causing bleeding)and about a tooth falling out (exaggerated, if not untrue). These matters, in the circumstances of this case, are quite peripneral.
4. The facts not in Dispute in relation to the assaults are these. The Appellant felt short-changed by 10 cents – he kicked the taxi.PW1 got out of the taxi and came towards the Appellant who stood his ground. PW1 assaulted the Appellant by pushing him.
5. Given those undisputed facts it mattered very little whether the dispute was about 10 cents or about anything else.
What followed later is in dispute. Defence counsel put to PW1 ‘You went to the Appellant to push him again’. Later it was put to PW1: ‘You tent to push him again and he used his hand.’ It was also put to PW1, ‘Defendant’s had went into (sic) your face’. The Appellant said PW1 rushed at himagain (sic) intending to hit him. If the Appellant did not move when first pushed by PW1, then PW1 rust have backed off to enablehim to rush at the Appellant again. That was never suggested to PW1.
6. The Appellant testified that when he warded off the anticipated blow his left hand hit PW1’s glasses. I have already referred tothe suggestion mad to PW1, that the Appellant’s left hand cent into his face.
7. In answer to Mr. Buchanan’s last question to PW2, that witness said that the Appellant had said to him ‘Didn’t you see the taxi driverhit me first?’ Why, one wonders, the use of the word ‘first?’. That was not challenged. The answer he gave to the Appellant was,’I saw you hit taxi driver first’. This fitness did not see PW1 push the Appellant. That did not trouble the magistrate in the realworld, some people are better observers than others and some good observers have comparatively poor memories.
8. There is no doubt on the evidence that the Appellant retaliated to PW1’s bush by hitting him in tile face.
9. The defence was self-derence. The magistrate correctly directed himself that this so-called defence had to be negatived by the Croon.
10. There was no suggestion, much less evidence, that the Appellant felt that, unless he acted as he did, he would have peen in somedanger of being hurt. He was pushed. He simply retaliated by hitting PW1 in the face.
The magistrate as perfectly entitled to come to the conclusion he did. The appeal is dismissed.
Mr. M. Arthur, Crown Counsel for Crown.
Mr. R. Bucnanan instructed by Messrs. So Karbnari for Appellant.