HKSAR v. Song Hannah

HCMA 253/2021

[2022] HKCFI 1534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 253 OF 2021

(ON APPEAL FROM ESCC 1685 OF 2020)

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Before:  Hon Toh J in Court

Date of Judgment: 30 May 2022

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JUDGMENT

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1.The Appellant who was D4 in the case below, was jointly charged with two other Defendants of “fighting in a public place”, contrary to section 25 of the Public Order Ordinance, Cap 245. She was convicted after trial and fined HK$3,000.

2.She now appeals against her conviction.  There is no objection from the applicant and the respondent to the application being determined on the papers without a formal hearing.

Evidence of the Prosecution

3.Madam Ada Lam (“PW1”) had known the Appellant since 2019 or 2020.  On the day of the offence, she met up with the Appellant and other voluntary workers at the Appellant’s office to go to Sham Shui Po to distribute surgical masks for charity.

4.She left the office after the Appellant had left, and upon she approaching near Times Square, when she was two meters away, she saw some young people approaching the Appellant and other voluntary workers.  Someone kicked the Appellant and she saw the Appellant stepped back. Then PW1 said she was attacked by others and she also saw the Appellant fall down as she was attacked by a group of people.  PW1 then used her arm to try to protect the Appellant.  She said the Appellant was dragged on the ground and hit by others.  PW1 identified the Appellant in Court and in the video recording.    

5.Apart from the evidence of PW1, there was also the video of what took place from the CCTV camera, which the learned Magistrate relied most heavily upon.  Added to that was also the evidence of PW4, Sergeant 34035, who came on the scene subsequent to PW1.

6.At the conclusion of the Prosecution evidence, the Appellant chose not to give evidence or call any witnesses.   

Magistrate’s Findings

7.The learned Magistrate considered that the best evidence in this case was the video recording taken by the CCTV at the scene.[1]   

8.The learned Magistrate in his Statement of Findings at paragraph 19, had closely analysed the video and concluded that from the video at 13:35:15, the Appellant had used her hands to push a person in black which then started the series of “body contacts”.[2]  The learned Magistrate found, therefore she had started the fight by pushing the person in black, and at that time of the push, she was not defending herself or anyone else.

9.On that basis, he found that the Appellant committed the offence of fighting in a public place and convicted her.        

Grounds of Appeal

10.Mr Cheng Huan SC and Ms Athena Wong filed the following perfected Grounds of Appeal:

(1)  The learned Magistrate erred in law in finding Ms SONG Hannah (D4) (“Ms Song”) guilty of the offence of fighting in a public place merely on the basis that Ms Song “started the fight by pushing the person in black, which is not for defending herself or others, nor any property.”

1.1  The learned Magistrate did not consider the essential ingredients of the offence of fighting in a public place, which is an offence contrary to the Public Order Ordinance, Cap 245; and

1.2  Even if Ms Song pushed the person in black, this in itself is not sufficient in law for Ms Song to be guilty of fighting in a public place.

(2)  The learned Magistrate relied exclusively on the video recording[3] in finding Ms Song guilty and totally ignored and/or did not sufficiently consider other evidence adduced at the trial.  Such evidence clearly showed that Ms Song was not fighting in a public place but was in fact the victim of a number of assaults.

2.1   In the cross-examination of PW1, there was uncontradicted evidence that Ms Song was assaulted; and

2.2.  There was also uncontradicted evidence in the cross-examination of PW4 that Ms Song was assaulted.

(3)  Further and/or alternatively, the learned Magistrate erred in finding Ms Song guilty on a basis which was not advanced by the prosecution.

3.1.  It was never part of the prosecution case that Ms Song was guilty of fighting in a public place merely on the basis that she pushed a person in black;

3.2.  The learned Magistrate made no enquiry and did not ask for any assistance from the prosecution as to whether the basis for the prosecution case was that Ms Song pushed the person in black.  Further, the evidence of PW1 and PW4 as stated in Ground 2 above was not contradicted or undermined by the prosecution and did not form the basis of any re-examination; and

3.3.  If it was the prosecution case that the push by Ms Song constituted the offence of fighting in a public place, it was not put in any form to any of the prosecution witnesses.  This is contrary to the rules of fairness stated in Browne v Dunn (1984) 6 R 67.  

(4)  Further and/or alternatively, the issue of self-defence was raised in the evidence and by Ms Song.  However, the learned trial Magistrate erred in ruling out the defence.

(5)  In all the circumstances of the case, the conviction is unsafe and/or unsatisfactory for the reasons aforesaid either individually or accumulatively.

Discussion

11.It is clear from the evidence that the Prosecution relied on the CCTV video and also the evidence of PW1 and PW4, as to what happened during the fighting that took place outside Times Square. 

12.The learned Magistrate, as I have pointed out, relied heavily on the CCTV video.  It is difficult to see how the learned Magistrate resolved what can be seen on the video with the evidence of both PW1 and PW4.  As counsel for the Appellant pointed out, it was clear that the Appellant had pushed the person who was filming her on his mobile phone because he was getting closer and closer to her. 

13.It is also understandable that if somebody uses a mobile phone to film another person, and depending on the circumstances the person being filmed may worry, not only for her personal safety but that her personal space and rights may also be affected.  Therefore, as the submission of the Appellant’s counsel suggested, her reaction was to push the person away.

14.The fight, according to Ms Wong, counsel for the Respondent, did not start immediately because the person who had been pushed by the Appellant, had turned away.  Furthermore, as was submitted by the Appellant, the law is that one person cannot be in a fight, it has to take at least two persons to start a fight.  Therefore, it appears from the evidence, at that stage, fighting had not begun with the push by the Appellant.  However, the learned Magistrate sought to make her action in pushing the person who was filming her to be the basis for the conviction.       

15.I would also like to mention that the CCTV video stated by the learned Magistrate as the best evidence.  However, caution had also to be applied because it is a stationary camera and in the melee, the angle of the camera taking a view of the scene may at times be misleading.

16.Obviously what was being taken or filmed on the CCTV had to be supplemented by actual witnesses on the ground.   In this case it came in a form of PW1 and PW4.   

17.The learned Magistrate although mentioning the evidence of both witnesses, never tried to resolve his findings that he had taken from the video with his findings of facts from the evidence of the witnesses. 

18.I have, therefore, tried to resolve it.  The evidence of the witnesses were clear that during the fighting, the Appellant was the person being attacked.  She not only had her hair pulled, but she was pulled on the ground, at one stage was even nearly on top of PW1. 

19.Therefore, upon reading the very brief Statement of Findings of the learned Magistrate, I am left with a lurking doubt as to the safety of the conviction, as no reference was made by the learned Magistrate to how he resolved what he saw on the CCTV with the evidence of the prosecution witnesses.

20.As was pointed out by the counsel for the Appellant, there was no re-examination by the Prosecution as to the evidence of PW1.  And PW1’s evidence was uncontradicted and certainly was very clear as to what she saw.  Therefore, in those circumstances, the fact remained that the Prosecution had failed to prove beyond a reasonable doubt that the Appellant was fighting in a public place. 

21.I therefore, quash the conviction and allow the appeal against conviction.  The sentence is also quashed.           

Ms Lilly Wong, SPP the Department of Justice, for the Respondent

Mr Cheng Huan SC leading Ms Athena Wong Hiu Hung, instructed by Y K Lau & Chu, for the Appellant