HKSAR v. OFLAS, WILFREDO D.

bjbj HCMA781/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 781 OF 2009 (ON APPEAL FROM TMCC 2872 OF 2009) -------------------------------- BETWEEN HKSAR Respondent and OFLAS, WILFREDO D. Appellant ------------------------ Before : Hon McMahon J in Court Date of Hearing : 8 December 2009 Date of Judgment : 8 December 2009 ----------------------- J U D G M E N T ----------------------- AUTONUMOUT The appellant, a 43 year-old Philippine national, was convicted by Mr Stephen Smout at Tuen Mun Magistracy of an offence of common assault. The appellant was fined $1,500. He appeals his conviction only, his appeal against sentence having been dismissed upon its earlier abandonment by him. AUTONUMOUT The appellant, who was employed as a driver by a family in Tuen Mun, had originally been charged with the indecent assault of a female Filipino (PW1) who was employed by the same family. The nature of the assault was that the appellant had kissed PW1 on the lips. The magistrate accepted that he may have done so as a result of PW1 having thrown a wet cloth at the face of the appellant earlier on the same day, and had further accepted the appellant s case that he had kissed PW1 simply to insult her in response to her throwing the wet cloth and that he had intended no indecency in his actions. The magistrate therefore found the appellant not guilty of the offence of indecent assault with which he had originally been charged but guilty of the alternative offence of common assault. AUTONUMOUT The appellant s case in respect to his appeal against conviction is that his counsel at trial had wrongly and without his instructions accepted that the appellant had in fact assaulted PW1. AUTONUMOUT With respect to the unrepresented appellant, his appeal against conviction on the ground as advanced is wholly unsustainable. He gave evidence at trial and his evidence was to the effect that he had kissed PW1 in retaliation to her throwing the wet towel at him. Before me he now attempts to maintain his ground of appeal in the face of his evidence by asserting that his counsel acted against his interests in this regard, and that if he had been properly advised he may have given different evidence to the effect that PW1 had also hit him with a coat hanger before he kissed her. That is evidence I accept he did not give at trial but which he had ample opportunity to give. AUTONUMOUT The appellant says he was not asked about this particular aspect of the case. But in any event I do not see that it makes any difference. There is no suggestion of self defence being the reason for his kissing PW1 and it remains a common assault. AUTONUMOUT Additionally it is clear from what has been said to me by the appellant that he knew that he did not have to give evidence. It is also clear that he gave his evidence under oath. I have no doubt that the appellant was wholly aware of his right not to give evidence if he chose not to do so and was aware of his responsibility to give truthful evidence. I note also that the appellant s cautioned statement had been produced as evidence during the prosecution s case and that it had been agreed that it was made voluntarily. That cautioned statement also contained the forthright admission that the appellant had kissed PW1 on the lips in retaliation for her earlier throwing the wet cloth at him and was otherwise in the same terms as his evidence. AUTONUMOUT In those circumstances I cannot see any merit in the appellant s appeal against conviction. It goes without saying that I can see absolutely no merit in requiring those acting for the appellant at trial to provide any evidence to this court and I am prepared to proceed simply on the documentation before me. The appeal is dismissed. AUTONUMOUT am told by the appellant that he is likely, at the discretion of the Director of Immigration, to lose his right to work in Hong Kong. If it is of any assistance to the appellant, I must say this is one of the most trivial of assaults imaginable, and in my view some leniency could be exercised regarding the Director s review of the appellant s working visa. (M.A. McMahon) Judge of the Court of First Instance High Court Ms June Cheung, SPP of the Department of Justice, for HKSAR The Appellant in person, present PAGE - PAGE A B C D E F G H I J K L M N O P Q R S T U 1udk 1udk G H I J K L M N O P Q R S T U V t"(# &`#$ "@AB & 6" Lilian YS Tai Microsoft Word 9.0 Title Microsoft Word Document MSWordDoc Word.Document.8