刑事檢控科各律師/高級律 - Department of Justice

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30 D. MAGISTRACY APPEALS/ AGAINST CONVICTION 裁判法院上訴案件 / 針對定罪 MA 111/2004 Gall J (2.4.2004) *Cheung Wai-sun & Chan Man-wai #G A Mackay CHEONG Un-ieng Inflicting grievous bodily harm/Victim burned with iron/ Whether injury grievous bodily harm/Question of fact in each case 對他人身體加以嚴重傷害 – 受害人遭熨斗熨傷 – 所受傷害是否嚴重身體傷害 – 屬每一案件的事實問題 The Appellant was convicted of an offence of inflicting grievous bodily harm, contrary to s 19 of the Offences against the Person Ordinance, Cap 212. The prosecution case was that PW1, an Indonesian aged 19 years, was employed with the family of the Appellant in 2003 as a servant. They were not happy with her performance. On 5 September 2003, PW1 testified that she spilt some water while ironing. As she squatted down to wipe the floor, the Appellant lifted her shirt and placed the hot iron she had been using on her back. This caused a wound which consisted of a trapezoid brownish-red burn with ruptured blisters measuring about 10 cm by 6 cm with ruptured blisters about 11.5 cm by 0.5 cm. Two smallish burns were also found on examination upon the front of the right forearm of PW1. On appeal, it was submitted, inter alia, that the injury to the victim could not be categorised as grievous bodily harm. Reliance was placed upon HKSAR v Lo Tak-chi [2001] 3 HKC 385, where it was held that multiple bruise marks and abrasions, a small cut wound on the tongue which required suturing and a chipped tooth without fractures did not satisfy the definition of grievous bodily harm. Held : (1) The phrase ‘grievous bodily harm’ was not defined in the Offences against the Person Ordinance, Cap 212. In HKSAR v Liu Man-kuen MA 604/2000, Lugar-Mawson J said: In both Hong Kong and England, following a jury direction given by Willes J in R v Ashman [1858] 1 F&F 88, it was formerly interpreted to include ‘… any harm, which seriously interferes with health or comfort’. But in DPP v Smith [1961] AC 290, the House of Lords said that there was no warrant for giving the words a meaning other than that which they convey in their ordinary and natural meaning.
31 Viscount Kilmuir LC saying at p 334 of the report: ‘Bodily harm’ needs no explanation, and ‘grievous’ means no more and no less than ‘really serious’. (2) In Liu Man-kuen, the court was considering a case with facts similar to these when a victim was told to place her hands on an ironing board and a hot iron was pressed down the back of both hands resulting in a secondary degree scaled wound of the dorsum of each hand. The court concluded that the injury involved grievous bodily harm, and said: It is a question of fact in each case. And whereas common sense tells one that some injuries will always be considered as amounting to grievous bodily harm and some, obviously minor ones, will not, in the vast majority of cases it is left to the tribunal, properly directed, to come to its own conclusion. (3) The magistrate in the instant appeal came to the same conclusion as in Liu Man-kuen, and it could not be said that was a wrong decision. Result - Appeal dismissed. MA 202/2004 Fung DJ (21.5.2004) *Cheung Wai-sun & Yam Ho #A Macrae SC CHOU Shih-bin Possession of arms and ammunition/Defence that items planted in bag/Magistrate disbelieving defendant and drawing irresistible inference of guilt/No basis for appellate court to intervene on basis of lurking doubt/Magistrate overlooking effect of presumption and setting himself a higher standard 管有槍械及彈藥 – 辯稱物品遭人栽藏袋中 – 裁判官不相信被告人並作出被告人有罪的不可抗拒推論 – 上訴法庭沒理由以潛在疑點為基礎而干預 – 裁判官忽視推定的影響並自行設定較高的標準 The Appellant was convicted after trial of an offence of possession of arms and ammunition without a licence, contrary to s 13 of the Firearms and Ammunition Ordinance, Cap 238. The prosecution case was that at about 5.50 pm on 13 June 2003, the Appellant entered Hong Kong from the Mainland at Lok Ma Chau. At 7.15 pm, at Hong Kong Airport, where he was to fly to Taiwan, he presented his hand-carry baggage (ex P1) for X-ray screening. The security guard found an anti-riot gun of Chinese origin (ex P2) and a cartridge with five chambers (ex P3). It was admitted that ex P2 was a firearm, under Cap 238, and that ex P3 was ammunition. The battery of the gun was not functioning and
Page 1 and 2: To : All Counsel/Senior Law Clerks/
Page 3 and 4: 3 INDEX 目錄 A p. 4 - p. 17 第
Page 5 and 6: 5 問題以「案件呈述
Page 7 and 8: 7 存在。簡單來說 , 胡
Page 9 and 10: 9 17 條開宗明義地說 `
Page 11 and 12: 11 [English digest of MA 1270 of 20
Page 13 and 14: 13 were ordered by the Council or a
Page 15 and 16: 15 (1) The magistrate’s analysis
Page 17 and 18: 17 Result - Appeal allowed. No cons
Page 19 and 20: 19 judge left for the jury’s cons
Page 21 and 22: 21 involved. This was reinforced by
Page 23 and 24: 23 C. CRIMINAL APPEALS/ AGAINST SEN
Page 25 and 26: 25 CA 126/2002 Stock & Yeung JJA Lu
Page 27 and 28: 27 (5) Insofar as A3 and A4 complai
Page 29: 29 good character, he would have re
Page 33 and 34: 33 (1) The magistrate had taken int
Page 35 and 36: 35 供事發當時司機的
Page 37 and 38: 37 The police regarded the Appellan
Page 39 and 40: 39 E. MAGISTRACY APPEALS/ AGAINST S
Page 41 and 42: 41 adduced by the Appellant as to h
Page 43 and 44: 43 Held : (1) The law was as set ou
Page 45 and 46: 45 The magistrate refused to award

刑事檢控科各律師/高級律 - Department of Justice

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