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[English Translation ― 英譯本]
HCMA 693/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO 693 OF 2015
(ON APPEAL FROM ESCC 4099 OF 2014)
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BETWEEN
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HKSAR |
Respondent |
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and |
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HUI CHI FUNG
（許智峯）
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Appellant |
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Coram: Hon Barnes J in Court
Date of Hearing: 8 September and 16 December 2016
Date of Judgment: 16 December 2016
Date of Reasons for Judgment: 9 January 2017
REASONS FOR JUDGMENT
1.The appellant was originally charged with two counts of Common Assault, contrary to the common law and punishable under Section 40 of the Offences against the Person Ordinance, Chapter 212 of the Laws of Hong Kong. The appellant pleaded not guilty and was acquitted after trial of the two charges by Mr. Colin Wong, a magistrate sitting in the Eastern Magistracy. The prosecution subsequently applied for review. The magistrate affirmed his decision but ordered that the appellant be bound over for 12 months on his own recognizance of $1,000. The appellant appealed against the said order.
2.After the hearing, I allowed the appeal and set aside the bind-over order. These are my reasons.
Facts of the case
3.The respondent was represented by Mr. Nicholas Wong, Senior Public Prosecutor. Mr. Wong summarized the facts of the present case as well as the reasons why the magistrate found the appellant not guilty in his written submission. I quote as follows:
“Prosecution case at trial
2. This case occurred at the office of the Central & Western District Office situated on 11/F., Harbour Building, Sheung Wan [“the office”]. The appellant is a District Councillor of the Central & Western District Council. He was dissatisfied with some decisions of the Central & Western District Council and for that reason, he started a sit-in protest together with another person in the office premises from 31st March 2014. Later, on 1st April 2014, they moved to the outside of the office and continued with the sit-in protest overnight. During the time, in view of the appellant’s conduct, the Central & Western District Office took some ad hoc security measures restricting non-staff members from entering the office area. At about 3:25pm on 3rd April 2014, the appellant requested to enter the office but was refused. He thus jumped onto the table at the reception counter and inserted his legs into the gap between the surface of the table and the plastic gate attempting to go into the office forcibly. Upon seeing that, the security guards in the reception counter including PW1 and PW2 came up to stop the appellant from entering the office by pressing his legs. The appellant kicked his legs which hit PW1’s body and PW2’s hand(s). Eventually, the security guards managed to stop the appellant from entering the office by force. The appellant was taken away from the reception counter by the security guards who were outside the reception counter.
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Decision after review
5. Having heard the submissions made by the prosecution and the defence in relation to the review application, the trial magistrate made the following decision:
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(7)The trial magistrate affirmed his original decision of acquitting the defendant of the two counts of Common Assault. He was of the opinion that at the material time, PW2’s abdomen was near to the appellant’s legs. Any movements of the appellant at that time might directly affect PW1 and PW2. These movements might be the appellant’s leg movements which were caused by the movements of any of PW1, PW2 or PW8. Therefore, the trial magistrate could not rule out the occurrence in which PW1 and PW2 felt that they were being kicked owing to the involuntary movements of the appellant when his legs were being grabbed, or his leg movements due to his legs being pressed by the other people.
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4.The reasons why the magistrate imposed a bind-over order could be seen from his statement of findings:
“Other factual foundation
23. I found in my verdict that the bodily contacts might be caused involuntarily when the defendant was being pinned down. Hence, the defendant was acquitted. Nonetheless, as appeared from the above findings, the defendant did know that the prosecution witnesses disallowed him access to the office area.
24. It can be seen from the facts of both parties that whilst the defendant knew that he was not given the permission, he still insisted, “If you deny me access, I will force my way in.” and attempted to get in with force. Having been stopped, the defendant still refused to be brought under control and be carried away. The defendant did not let go of his hand[s] and tried as best as he could in order not to be carried away. Yet his legs were beyond control. While the defendant was refusing to leave, bodily contacts ensued. The above facts were not disputed by the defendant.
Bind-over order
25. The prosecution asked this court to consider a bind-over [order]. I did refer myself to the case HKSAR v Lau Wai Wo (2003) 6 HKCFAR 624. In considering whether to impose a bind-over order to keep the peace, so as to ensure [a person’s] conduct complies with the law, there must be involved violence to person or property, or the threat of violence such as violence(sic), and a reasonable apprehension that such violence will take place. As far as the present case is concerned, the [accused] person was a trespasser who forced his way into the office and was subdued under the gate. My finding of fact was that the security guards had used reasonable force in an attempt to take the defendant away. The defendant was uncooperative. He insisted on staying behind attempting forcible entry. His stay, which was an unreconciled stay, did not amount to an assault. Nonetheless, what had happened was that a security guard lawfully requested a trespasser to leave (or) attempted to carry him away, but the trespasser still kept on resisting the security guard and acted strenuously to resist his control. This obviously gave rise to a [feeling] of threat, or a reasonable apprehension that violence would take place.
26. The defendant claimed that the other security guards were neither scared nor fear upon seeing him again. However, when considering the circumstances of the case at that time, I am obliged to consider whether there was any apprehension that violence would take place. Secondly, in deciding whether it was necessary to impose a bind-over order, I am also obliged to take into account that the [defendant] was a man of clear record and did not have any violent tendency. Yet, in view of the circumstances of the present case, I do think there is still a need to impose a bind-over order. I also think that, since the appellant forced his way in, refused to leave even though he was lawfully stopped by the security guards, and persisted in his attempt in acting as a trespasser, those were sufficient to give rise to an apprehension that violence would take place.
27. Therefore, I order the defendant to be bound over for twelve months by entering into a recognizance of $1,000 to keep the peace and to refrain from committing or attempting to commit any criminal act by using or threatening to use violence against any person.”
Grounds of appeal
5.Counsel for the appellant has put forward a number of grounds of appeal. After consideration, I think I only need to deal with the following two:
(I) The magistrate wrongly applied the legal principles established in the case HKSAR v Lau Wai Wo (2003) 6 HKCFAR 624; and
(II) The magistrate did not/refused to consider whether there would be the possibility that the appellant would breach the peace again in future.
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