HKSAR v. FAVILLARAN LUDY VISILLAS AND ANOTHER

HKSAR v. FAVILLARAN LUDY VISILLAS AND ANOTHER

The court held that the magistrate had incorrectly treated the medical and witness evidence as establishing a permanent hearing loss amounting to grievous bodily harm; on the true evidence the injury amounted to assault occasioning actual bodily harm (s39 Cap.212), so the conviction under s19 was quashed and substituted accordingly; the FEHD officers lawfully required production of identity and were entitled to detain/arrest under Cap.132 s23 and Cap.570 ss3-4, and the force used by the appellants was disproportionate; appeals otherwise dismissed; sentencing adjusted to 12 days imprisonment for the 1st appellant (time served) for the substituted offence.

Citation
HKSAR v. FAVILLARAN LUDY VISILLAS AND ANOTHER
Parties
Respondent: HKSAR; 1st Appellant: FAVILLARAN LUDY VISILLAS; 2nd Appellant: MILLS EVELYN DOLORES
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 February 2007
Case Number
HCMA478/2006
Procedural Posture
Magistracy Appeal (criminal) / Appeal to Court of First Instance (appellate Jurisdiction) Judgment on Appeal From ESCC 4607 of 2005
Outcome
Appeals dismissed except that the 1st appellant's conviction for inflicting grievous bodily harm (s19 Cap.212) was quashed and substituted with a conviction for assault occasioning actual bodily harm (s39 Cap.212); sentence for the substituted offence fixed at 12 days imprisonment (time served); other convictions...
Legal Topics
Assault, Grievous Bodily Harm, Assault Occasioning Actual Bodily Harm, Powers of Arrest/detention by Public Officers, Fixed Penalty Notices, Evidential Sufficiency and Findings of Fact, Substitution of Conviction on Appeal, Sentencing Parity and Mitigation
Source Language
EN
Criminal Law Public Health/regulatory Enforcement Administrative Law Evidence Law Sentencing Law Assault Grievous Bodily Harm Assault Occasioning Actual Bodily Harm +5 more

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Parties

HKSAR

Respondent

FAVILLARAN LUDY VISILLAS

1st Appellant

MILLS EVELYN DOLORES

2nd Appellant

Procedural Posture

Magistracy Appeal (criminal) / Appeal to Court of First Instance (appellate Jurisdiction) Judgment on Appeal From ESCC 4607 of 2005

Legal Issues

  1. 1 Whether the perforated eardrum and hearing loss amounted to grievous bodily harm
  2. 2 Whether the magistrate erred in treating the hearing loss as permanent and failed to review sentence when later medical evidence suggested recovery
  3. 3 Whether FEHD officers had lawful power to require production of identity and to detain/arrest the 1st appellant

Ratio Decidendi

The court held that the magistrate had incorrectly treated the medical and witness evidence as establishing a permanent hearing loss amounting to grievous bodily harm; on the true evidence the injury amounted to assault occasioning actual bodily harm (s39 Cap.212), so the conviction under s19 was quashed and substituted accordingly; the FEHD officers lawfully required production of identity and were entitled to detain/arrest under Cap.132 s23 and Cap.570 ss3-4, and the force used by the appellants was disproportionate; appeals otherwise dismissed; sentencing adjusted to 12 days imprisonment for the 1st appellant (time served) for the substituted offence.

Court Disposition

Appeals dismissed except that the 1st appellant's conviction for inflicting grievous bodily harm (s19 Cap.212) was quashed and substituted with a conviction for assault occasioning actual bodily harm (s39 Cap.212); sentence for the substituted offence fixed at 12 days imprisonment (time served); other convictions...

Orders

  • Quash conviction of 1st appellant under s19 Offences Against the Person Ordinance (Cap.212) and substitute conviction for assault occasioning actual bodily harm contrary to s39 Cap.212
  • Set aside original one month custodial sentence for the 1st appellant imposed for s19 and impose 12 days imprisonment for substituted s39 offence (time served)