HKSAR v. Chan Ming Leong and Another
Read the full judgment text of DCCC 704/2021 on BabelCite. This District Court judgment was delivered on 8 August 2022.
1. D1 is facing two charges and D2 is facing four charges.
Cited by 2 cases · Cites 1 case
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DCCC 704/2021 [2022] HKDC 847 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 704 OF 2021 ________________________
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________________________ REASONS FOR VERDICT ________________________ 1.D1 is facing two charges and D2 is facing four charges. 2.Charge 1 is against D2 for common assault.
3.Both defendants pleaded not guilty to all charges. 4.P3 is the Admitted Facts admitted by prosecution and defence pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.
5.Prosecution called four witnesses to give evidence. 6.PW1 is Alexander Robert Medd, the alleged victim in this case. He testified that he and his wife owned the property known as Lot 43, Tai Long Wan Tsuen, Wang Pui Road, Lantau, and they have been living there for the past 10 years. The incident 7.On 29 March 2020 the day in question, at about 4:15 pm, he was at home sitting out in the garden with his son who had just flown in and was on quarantine. D1, D2 and another man were walking up using their mobile phone to video record his property. He knew D1 and D2. D2 has bought properties in the village since five years ago. He had dealings with them in the past. They had been over and crossed onto his property in the past. He was afraid and intimidated (by their presence) and so he used his mobile phone to film these three men. Whilst he was filming, D2 picked up two stones and D1 picked up one stone. D1 came up very close to him in an aggressive manner with a stone in his hand. He felt threatened. His filming ended abruptly because D2 grabbed his mobile phone. As a result, his mobile phone dropped onto the ground. D2 then lunged out of the fence, grabbed him and, as a result, both of them fell down. He confirmed P7 is the video he took. P8 Photo Album (photos and screenshots from P6 and P7) 8.Counsel on fiat ran through all 45 photos in this album with PW1. PW1 gave evidence as follows:-
9.The video produced and marked Exhibit P6A was played in court. P12 photo album 10.Counsel on fiat ran through the 17 photos in this photo album with PW1. Photo (1) to (6) are photos of the scene taken by DPC17107 on 29 March 2020. PW1 confirmed the broken gate as depicted by those photographs was not broken before this incident. Photos (7) to (17) are photos of PW1’s injuries taken by DPC20733 on 3 April 2020. He confirmed all the injuries as depicted were sustained in this incident, the injuries at his knee and abrasions below were caused when he fell down for the second time. The two wounds on his head were sutured, two stitches at one and one stitch at the other. 11.PW1 confirmed neither he nor his son threatened or acted aggressively towards any of the three men nor had any weapon in their hand in the entire incident. D2’s cross-examination 12.Mr Harris, counsel for D2, suggested to PW1 that:-
He also suggested to PW1 that:-
PW1 disagrees with the above defence case. 13.He agrees with Mr Harris that:-
14.D2 produced and marked as defence Exhibit D2-10 a set of emails exchanged between PW1 and the Department of Justice between 25 May 2021 and 30 July 2021. A transcript of the prosecution’s video evidence prepared by the defence and approved by prosecution is provided to the court marked MFI-D2A. D1’s cross-examination 15.Mr Robert Pang for D1 challenged PW1’s evidence:-
16.Mr Pang suggested to PW1:-
PW1 disagrees with the defence case. 17.In re-examination, PW1 said his knee was injured when he fell down with D2. When he stood up to stop D1 from hitting him, D2 attacked him and he fell down for the second time. 18.PW2 is PW1’s son. At the material time he was 19 years old, a university student studying in the UK. He is the alleged victim under charge 6. His account of the incident 19.It was sometime after 4 pm when he and his father were sitting out in the garden, he noticed D1, D2 and another man appeared at the end of the garden taking pictures or videos. His father got up from his chair, walked towards those men and started filming them. When he noticed those men were getting more aggressive in their demeanour, he got up and walked towards them. He saw those three men moving towards his father, and saw D1 raised his hand. He heard his father shouting at D1 “Throw at me, I dare you”. At that instant, he took out his mobile phone and started filming what was happening. 20.He saw D2 lunged at his father by stepping into their garden, got hold of his father and as a result his father fell back on his knees. At that point of time, he saw D1 also lunged at his father and bashed his father’s head with a piece of concrete or stone in his hand for two to three times and also on his neck and back. His father grabbed D1’s hand to stop him and managed to get up from the ground, moved to the side of the wall whilst still entangling with D1 (P8(34 to 35) depicts). At that time D2 picked up his father’s mobile phone or had it in his hand and threw it down onto the concrete path. The mobile phone bounced off from the concrete path onto the grass lawn (as P8A(a) to (y) depicts), so he picked it up and moved to one side. 21.D2 approached him and slapped his father’s mobile phone off from his left hand. He then turned to look at his father. His father had fallen onto the ground with D1 underneath the fence holding D1’s right wrist. D1 bit his father’s hand when his father refused to let go. D1 eventually wrestled his way out. His father also got up. He could see his father was bleeding from the back of his head with blood dripping down his neck. His father told the three men not to leave until the police came. 22.When police came he told the police that he had video-recorded what happened and the police wanted them as evidence. So he copied the video and photographs from his mobile phone onto a USB and gave it to the police. Exhibit P6A is the complete video he took. D1’s cross-examination 23.Mr Pang suggested to PW2 that:-
PW2 disagrees with the above defence case. D2’s cross-examination 24.Mr Harris suggest to PW2 that:-
PW2 disagrees with the above defence case. 25.PW3 is PC24718. He learnt from the police console about a fighting case occurred at Tai Long Wan Tsuen. He attended the scene at 5.07. There he saw PW1 and his family members, D1, D2 and their people. There was a visible wound on PW1’s head and was still bleeding. Two Chinese males were arrested, both denied having attacked PW1. He was shown Exhibit D2(10) a photograph which depicts a pitchfork, he claimed he had never seen this photograph before. He also confirmed there was no complaint from anyone that they were threatened by someone holding such a pitchfork, and had there been such a complaint, the police would have made enquiries about it and seized it as exhibit. He confirmed the pitchfork (shown in the photo) was not seized as an exhibit. D1’s cross-examination 26.PW3 agrees:-
D2’s cross-examination 27.Mr Harris suggested to him and he agreed:-
28.PW4 is PC19581. At 4.59 pm he received instructions from the police console to proceed to Tai Long Wan Tsuen. He and his colleagues attended the scene. Subsequently he arrested D2 in the hospital. 29.Under D2’s cross-examination, he confirmed he was assigned to deal with D2 at the scene. He cannot remember if D2 was talking to his solicitor when he arrived. D2 did complain to him at an early stage that his left shoulder was hurting and for that reason the police made arrangements for D2 to be sent to the hospital. 30.Both D1 and D2 have no halfway submission. I ruled there is a prima facie case for both defendants to answer on each charge. Defence case 31.D1 elected not to give evidence but called two witnesses who are common defence witnesses for himself and D2. DW1 - Mr Wong Wai, Philip 32.He is called to testify basically about two matters:-
33.He is a director of an engineering consultancy company. D2 is a client of his company and he has known D2 for some 10 years. He came to know D1 at the end of the 2019 as he was a party of the construction team in a construction project at Tai Long Wan Tsuen, Lantau Island. His involvement in D2’s project was:-
34.A meeting was held on 9 February 2020 and the proposal/planning for the village, defence Exhibit D2-12 was distributed to attendees who were mainly foreigners. Throughout the meeting, PW1 remained standing when he could sit down at the conference table interrupting from time to time, expressing his personal opinions, in particular on two aspects:-
35.The enclosing wall was a temporary structure intended to protect D2’s property and prevent outsiders from entering and getting injured inside the construction site. 36.He met PW1 again on 2 April 2020. PW1 approached him and showed him the injuries at the back of his head and played a video clip with his notebook computer to show how he got hurt. He had the impression that the playing time of the clip was over 3 minutes. PW1 controlled the playback speed by what he described as using a combination of normal speed, fast, slow, jumpy (stop and start manner) and dragging (dragging the time bar). The video clip started from PW1 walking out from his house to the lawn, approaching D2 and D1 who were outside the fence. PW1 was holding a mobile phone at the direction of D2 and D1 as if he was filming them and the latter did not want to be filmed. When the three of them got close to each other, a struggle ensued between them, perhaps there was contact between PW1 and D2 with their hands and arms and both were on the ground as the clip played on. He used the words “perhaps” because PW1 played that part in fast speed, he could not see that part clearly. He was unable to see who touched who first because the contact was simultaneous. The part which PW1 wanted to show him how he fell and got hurt was played at fast speed. 37.On that occasion, apart from showing the video, PW1 also said to him “Philip, you should receive your fees for the construction work as soon as possible”. When he asked why, PW1 said “Mr Hui will soon go to jail”. He confirmed D1-1/Video 2 was in the clip shown to him by PW1 but the clip played for him by PW1 was longer. The clip played in court does not show the part of PW1 walking out from his house towards D2 and D1. D2’s cross-examination 38.He does not agree with the suggestion that:-
Prosecution’s cross-examination 39.He agrees he and his company was representing D2 to liaise with the villagers as public relations. He also agrees that at the meeting with the villagers, some were happy with the project and some were not. He agrees PW1 consistently complained about the enclosing wall and wanted the wall to be taken down. 40.He has no idea nor in the position to say whether D2 was unhappy with the complaints but D2 had in fact required him or his company to satisfy each and every villager. D2 did not express if he was upset, angry or unhappy with PW1’s complaints but did tell him to take down the enclosing wall as soon as possible. 41.Regarding the video that he saw, he was told by PW1 that it was shot by his son. He confirms from the video clip he saw PW1 coming out from his house walking down to confront the defendants. He agrees apart from the mobile phone, he saw nothing else in PW1’s hands. Mr Raffell showed him defence Exhibit D2-10 which depicts a garden tool, and asked if he saw that garden tool in PW1’s hand, at first he answered “Probably not”, when the question was repeated, he answered he did not. He also confirmed (apart from PW1) no one else showed him any video or photograph of this incident. 42.He was shown defence Exhibit D2-9. He agrees the broken part of the fence leaned inward towards PW1’s garden was a result of external force towards the garden. 43.When he was queried, if it was PW1’s intention to show him how he got injured on his head and he was unable to see clearly, then why did he not ask PW1 to play back properly. He answered “I did not”. He added when the video was played PW1 told him someone hit him on the head but he did not see that on the video and yet he did not ask any question. 44.He disagrees he gave his evidence selectively in favour of D2 or his memory that the video was 3 minutes long could be faulty. As to how he could say it was 3 minutes, he explained after PW1 played the video he checked the time and noted that 15 to 20 minutes had passed so he reckoned the play time lasted for 3 minutes or so. After all three videos were played in court, DW1 said none of these were shown to him before. 45.In re-examination Mr Pang asked him to clarify his inconsistent evidence why he said under cross-examination the video shown to him by PW1 was not the same video shown to him during his examination-in-chief. He explained from the video he was shown by PW1 he could see PW1 leaving the house and walking towards the defendants. He is certain there was a scene PW1 had D2 pinned down on the ground. When Mr Pang asked him why he did not ask PW1 to show him the part how he got injured, his explanation is for he could see PW1 and D2 were on the ground and D1 was pulling PW1 away, so he did not ask. PW2 - Mr Wong To (the man in black in the video) His evidence-in-chief 46.He was employed by D2’s company for approximately a year from April 2019 to 3 April 2020. He served as the D2’s personal assistant. On the day of the incident he went to Tai Long Wan, Lantau Island with D2. They met up with D1 who was the main contractor of the construction work and then he learnt from D1 that the doorway of the house was damaged and the drainage was blocked by someone. They then went to inspect the blockage of the drainage. 47.As they were walking along the concrete path, a foreigner (PW1) approached them, scolding them aloud in English and pointed at them. He could not understand what PW1 was saying. They ignored PW1 and carried on what they were there for. PW1 kept following them, yelling and scolding them and raised his mobile phone at them in one hand and held up something like a fork with his other hand. At that time D2 was closest to PW1, seeing what PW1 was doing, he picked up a stone. D1 followed suit and also picked up a stone. When PW1 put down the fork, D2 put down the stone and so did D1. 48.When their inspection was done and on their way back to D2’s house, PW1 again lifted up the fork. D1 then picked up a stone. PW1 put down the fork. They continued walking forward, D2 was in front followed by D1 and he was the last. Suddenly he heard somebody yelled and it was D2. Before he heard the yelling he was looking at the other direction. He turned to look at once and saw PW1 had D2 pinned down on the ground already. So he went over at once tried to pull PW1 away together with D1. He recalls D1 using his hand or arm to smack PW1’s body. It was in a chaos, he could not recall which part of PW1 was smacked by D1 and did not see whether D1 was using his bare hand or something held in his hand when smacking PW1. PW1 then let go of D2 and turned to struggle with D1. 49.He helped D2 to get up. D2 told him his hand or arm was injured and painful. D2 then searched for his mobile phone and picked up a mobile phone case from the ground, probably not D2’s. At that moment another foreigner (PW2) dashing over at their direction with a mobile phone in his hand. D2 handed the mobile phone cover to PW2 but the latter did not take it but continued filming, scolding and yelling at the same time. D2 put the mobile phone case down on the ground then went over to check on D1 and PW1. At no time he or D2 had any physical contact with PW2. The police arrived shortly. The police only recorded his identity card number without making any enquiries from him. D2’s cross-examination 50.Under cross-examination he confirmed:-
Prosecution’s cross-examination 51.Under cross-examination, DW2 said he was sacked by D2 who gave him one month’s wages in lieu of notice, so he did not ask why he was sacked. He is now working for a management company which has no connection with D2 whatsoever. 52.He agrees:-
D2’s case 53.D2 elected to give evidence and called one character witness. D2’s evidence-in-chief 54.Defendant was born in China in 1964. He is now 58 years old, married with a big family. He has a clear record. He received his tertiary education in the Mainland, a university graduate and received doctorate from the university in Mainland and Russia over 20 years ago. He came to Hong Kong in 1992 and became a permanent resident in 1995. He was already a businessman before he came to Hong Kong with business in motor vehicle, property investment and development. He also engaged in the oil and gas business over 20 years ago. He is a director of many companies and some are listed companies. He was awarded Gold Bauhinia Star by the Government of Hong Kong SAR and appointed as a Justice of Peace. His achievements are set out comprehensively by his two character witnesses, Dr Tsoi Wing Sin and Dr Tai Tak Fung in Exhibit D2-16 and D2-17. 55.In 2019, he purchased a number of properties in Tai Long Wan Tsuen and also rented other lots. Defence Exhibit D2-11A is a map of the village, the lots shaded in blue are the properties he purchased, the lots shaded in pink are lots he rented. He acquired those properties for his family’s holiday home. There were construction works to improve his properties starting at the end of 2019. In addition, he engaged consultants to improve the village. D2-12 is the proposal prepared by his consultant in accordance with his instructions. 56.PW1 was his neighbour. He was unaware of PW1’s complaints about his construction works until his constructor told him at the later stage. He had met PW1 twice by chance before this incident but never spoke to him nor discussed about his complaints for it was his contractor’s responsibility. His English is not good and does not know much English. 57.On the day before this incident, D1 reported to him that the gate was damaged by his ‘gweilo’ neighbour and the outlet of the drainage in his garden was blocked with mud. D1 asked him to go over to check and see what to do with it. The incident 58.After they met up with D1, the three of them proceeded to inspect the situation. He found the metal gate was damaged and laid on the side as depicted in photo D2-8. Then they went to check the drainage at the end of the concrete path. PW1 upon seeing them got up from the chair near the doorway of his house at once and came over at a quick pace. As he was approaching, he yelled at them and gestured them to leave. He did not understand what PW1 was yelling or what he meant. He could tell PW1 was unfriendly. 59.When they reached the end of the concrete path they looked at the drainage and D1 was taking photographs of the drainage. By that time PW1 got closer. PW1 was very agitated as one could tell by his panting aloud. PW1 used one hand to film them with his mobile phone, and picked up a fork which was leaning against the fence with his right hand, waving it up and down and sideways as if he was throwing it at him. He was frightened by PW1 and out of instinct he picked up two stones for self-protection. When PW1 dropped his hand but still holding the fork, he put the stones down. He wanted to leave as soon as possible. He had no intention to get into a fight with PW1 for his size. 60.He was on his way back to his house and had walked past PW1, but PW1 followed him and kept on filming him. So he fended off PW1’s phone which was too close to his head. He did not lunge at PW1 but rather it was PW1 who seemed mad pulled his hand like wrestling and swung him towards the enclosing wall. By then PW1 had put down the fork. As a result of being swung around for 180 degrees, he broke the fence and fell onto the concrete path. PW1 then pinned him down with his knees and body. He got help and managed to get back on his feet. He then saw PW1 was wrestling with D1. 61.He did not smash PW1’s mobile phone. 62.As to the allegations that he tried to snatch PW2’s mobile phone, it was absolutely impossible because he was too far from PW2 and he had no motive to do so. 63.He called and spoke to his solicitor, Mr Chan before the police arrived. After he related the circumstances, Mr Chan said he will arrange a lawyer to come over as soon as possible and advised him not to say anything before the lawyer arrived. That is why he did not say anything to the police about the garden hoe held and waved about by PW1 and the police did not ask him either. Prosecution’s cross-examination 64.Under cross-examination PW2 agrees PW1 was meddlesome before this incident but it had nothing to do with him because the trouble about the construction work was to be handled by his contractor. On the day of this incident he was just conducting an inspection as he would inspect his property regularly. 65.About the swearing, he claims he was not swearing at PW2 but was talking to himself for he was feeling painful all over his body and dizzy. He disagrees the reason he picked up the stones was because he was annoyed with PW1 filming him. He disagrees in his demonstration to the court he raised two hands to show how PW1 was holding his mobile phone to film. PW1 was holding his mobile phone (with one hand) to film and pick up the fork by the side of the fence (with the other hand). He actually did not pay attention to PW1 until PW1 started waving the fork to and fro and that was when he reacted. 66.If so, he was queried why D1 did not take a photo of PW1 holding a fork. His explanation is D1 had stopped shooting. He was also quried if his lawyer advised him not to say anything, then why did he make a statement to police under caution as stated in paragraph 7 of the Admitted Facts, P13. His explanation is because his lawyer had not arrived and without prior knowledge he was arrested for damaging the phone of another. He added he did not tell the police PW1 was holding a pitchfork because the police did not ask him about that and also he did not have the opportunity to do so. Mr Raffell then pointed out the police had in the post-recorded statement asked him if he has anything to add. D2 answered his lawyer had advised him not to answer. He disagreed the reason why no one mentioned about the pitchfork at the scene to the police was because it had nothing to do with the case. He also explained he did not point out the pitchfork to the police because there were many other exhibits besides the pitchfork and also he was feeling painful. 67.He denies he had pushed aside PW1’s mobile phone, brushed it aside, or fended it off. He disagrees he lunged at PW1 first and because of the forward momentum the fence broke. He disagrees that the incident started when he picked up the stones and threatened to throw at PW1. He disagrees he smashed PW1’s mobile phone. Re-examination 68.Mr Harris asked D2 to confirm by referring to the defence Exhibit D2-11B that PW1’s garden exceeded the official boundary. 69.D2-1 is the further facts admitted by D2 and prosecution pursuant to section 65C of the Criminal Procedure Ordinance concerning the injuries sustained by D2. 70.D2 produced the following exhibits:-
71.DW3, Dr Tsoi Wing Sin is called as defendant’s character witness. 72.Above is the defence case for D1 and D2. 73.All parties submitted their written final submissions. Basic legal principles 74.The burden of proof is on the prosecution, the standard of proof must be beyond all reasonable doubt. An accused has nothing to prove. He has the legal right to remain silent. No adverse inference should be drawn against him for not giving evidence. The standard of proof for an accused is on the balance of probabilities. I bear in mind the Barrada Directions for D2 has a clear record. I reminded myself the criteria of self-defence by referring to the following passages in Archbold 2021 Edition:-
75.With the above in mind I turn to examine the evidence. 76.D1 is facing one count of common assault under charge 2 and wounding with intent under charge 5. 77.Prosecution submits these two charges against D1 are borne out beyond any doubt by the testimony of PW1 and PW2 and the video recording taken by these two produced as prosecution Exhibit P6(video 1) and P7(video 2). 78.Mr Pang submits it is undisputed that on 29 March 2020 afternoon an incident involved PW1, D1 and D2 occurred outside PW1’s house. The main issue is how the incident happened. It is also common ground that video 2 does not show how the incident started or how PW1 and D2 fell onto the ground. In addition to the videos, the factual matrix of the case depends heavily on the accounts of the witnesses and therefore the credibility of witnesses is crucial in this case. Mr Pang submits:-
79.Mr Pang further submits the prosecution has failed to prove all the elements of common assault under charge 2 beyond reasonable doubt for (a) PW1 was not in fear and did not have any apprehension of immediate unlawful personal violence and (b) D1 was acting in self-defence in reaction to PW1 holding up a garden pitchfork. 80.Regarding the charge for wounding with intent, Mr Pang submits the prosecution’s evidence on how the incident started and happened is internally inconsistent and inherently improbable. PW1 was the aggressor who followed and dragged D2, swung him round, broke the fence and pinned him down on the ground. D1 acted reasonably in trying to get PW1 off D2. It is reasonable that in a moment of unexpected chaos D1 felt it necessary to pick up a rock and hit PW1 to defend D2. The fence posts where the incident happened had sharp metal edges as depicted in the photographs and the broken fences had sharp corners. The possibility that PW1 was injured by these structures in the course of the struggle cannot be ruled out. 81.D2 faces four charges, namely common assault under charge 1, criminal damage under charge 3, assault occasioning actual bodily harm under charge 4 and common assault under charge 5. Prosecution submits the allegation of common assault under charge 1 against D2 is borne out beyond any reasonable doubt by the testimony of PW1, PW2 and the video evidence exhibits, P6 and P7. D2 picked up two stones or rocks and mimed as if he was throwing them at PW1. PW1 testified he felt threatened by such action. 82.Regarding charge 3 for criminal damage, prosecution submits there is no dispute that PW1’s mobile phone was damaged. PW2 clearly testified that it was D2 who committed this offence. 83.Regarding charge 4 for assault occasioning actual bodily harm, prosecution submits the clear evidence of PW1 is that he was filming D1, D2 and DW2. D2 lunged at him taken PW1 by surprise. D2, perhaps, was trying to grab PW1’s cell phone or deflect it from being used to film him, as he said to the police, caused PW1 to fall and suffer injury to his knee and minor injuries on other parts of his body. 84.Regarding charge 6 for common assault, prosecution submits D2 was obviously annoyed and angry with both PW1 and PW2 for filming him (or them) hence the swearing outburst and tried to slap PW2’s mobile phone out of his hand. PW2 felt the threat of immediate violence and he was battered by D2. 85.Mr Harris for D2 submits:-
Court Analysis A. Video evidence 86.The four video footages with sound provided with an objective view of what happened at different stages of this incident. One can see from video 1 and 2 how the incident started and became physical between the two parties. In the course of deliberating the verdict, I reviewed these video footages repeatedly. Set out below is my observation of video 1 and 2. There is no need to set out any details of video 3 and 4 for these two footages show the aftermath of the incident and nothing of significance. 87.Video 1 was taken by PW1 with his mobile phone with sound. The duration of this video is 17 seconds.
88.Video 2 was taken by PW2 with his mobile phone. The duration of this video is about 15 seconds.
89.MFI-D2A is a transcript of the prosecution video evidence. A copy is attached herewith for reference. To assist the court for easier reference, the parties rearranged the sequence of the photos in the photo album, P8 (Book 2). P8A is the rearranged photo album. Finding of the video evidence 90.I am satisfied what was captured on the video is what actually happened at the scene. Such evidence is solid and undeniable. D1 91.Now I turn to consider the overall evidence against D1. For charge 2, defence submit PW1 is not a credible nor reliable witness. Despite all the criticisms made against PW1, I find PW1’s evidence as far as charge 2 is concerned is credible and reliable for his evidence is wholly supported by video evidence ie Video 1. I would not repeat the details of my observation of this footage for I have already set out in the preceding paragraph saves to add the following: when D1 walked up so close to confront PW1 who obviously was still filming with the camera fixed on D1, the look D1 put on was unmistakably aggressive and fierce. PW1 testified he felt threatened at the time. In my view, what was captured on the video is so clear and indisputable that by what D1 did and how he behaved at the time undoubtedly amount to common assault on PW1. 92.I turn to consider whether or not D1 was acting in self-defence. It is the defence case that PW1 was holding a pitchfork with his right hand whilst he carried on filming the defendants with a mobile phone in his left hand. It is not in dispute that there is a pitchfork on the side of the broken fence (see D2-9). For the following reasons I do not accept defence’s contentions:-
93.For charge 5, the prosecution case against D1 is when PW1 and D2 were still on the ground, D1 used a stone he held in his hand to hit PW1 on the head and body a number of times. The evidence in support of this charge includes the evidence of PW1, PW2, video evidence and medical findings of PW1’s injuries covered by the medical reports. 94.I repeat here, despite all the criticisms made against PW1, I find PW1’s evidence as far as charge 5 is concerned is credible and reliable for his allegations are wholly supported by the video evidence, that is Video 2. Details of my observation of this footage has already been set out in the preceding paragraph, so I will not repeat again. In my view, what was captured on the video is un-mistakenly clear and indisputable, D1 did bash PW1 on the head and upper back with a stone held in his hand. 95.Mr Pang submits (a) as evidenced from the video as well as PW1 agreeing that D1 and DW2 were of much smaller built; (b) PW2 tried to pull DW1 away in vain; (c) The incident happened in a matter of a few seconds and chaotic, the reasonableness of D1’s acts must be considered. Taking into account the situation at the time, it is reasonable that in a moment of unexpected chaos D1 found it necessary to pick up the stone to hit PW1 to defend D2. Whilst it is not in dispute that D1 did used a rock to hit PW1, the injuries sustained by PW1 were relatively minor. Even if, which is denied, D1 hit PW1’s head with a rock, the degree of force and hence the reasonableness of such force would not have been great. 96.Mr Pang further submits it is not in dispute that PW1 did suffer a wound on the head, nevertheless, the evidence to support the wound was caused by the stone that D1 used to hit PW1 is far from satisfactory. Contrary to PW1’s evidence, PW3 did not notice any blood stain on the stone. PW1 did not notice the cut on his head until he was told by his son. The fence post where the incident happened had sharp metal edges and the broken fences had sharp corners as depicted in the photographs. The possibility that PW1 was injured by these structures in the course of the struggle cannot be ruled out. 97.I considered all the evidence relevant to this charge carefully. In law, self-defence covers the situation of protecting another or property. First of all, Video 2 does not depict how PW1 and D2 ended up on the ground. Photo P8-3 is the start of the Video 2. It depicts PW1 had one knee on the ground and was on top of D2 who was on the ground. DW2 was the one on the right side of PW1 trying to pull PW1 away. D1 was in front of PW1 with his right hand raised above his head. D1 was holding an object, admittedly a stone, in his right hand. From the video footage, I can see very clearly D1 used the stone in his right hand to hit the upper part of PW1’s body repeatedly until PW1 turned to him and then the two started pulling each other. By then D2 had got back on his feet. After playing this video repeatedly, I could not hear D2 yelling in pain or at all. Also I do not see PW1 had in any way assaulted D2 apart from perhaps pinning D2 down on the ground with his hands. In other words, D2 was not in grave danger. I accept D1 was trying to help D2 and PW1 was much bigger in built but I fail to see any justification for D1 using a stone to hit PW1’s upper body repeatedly. He could have joined force with DW2 to pull PW1 away from D2. In my view, his attack on PW1 was totally unwarranted and unproportional in the circumstances and the force was excessive. 98.I have examined the stone which is produced as P1. It is a very hard piece of stone with sharp edges. I have no doubt when D1 held such a stone in his hand he must have known using such a stone as a weapon to hit another person, especially on the head, could cause very serious injuries. On the video I can see how D1 attacked PW1. At the very start of the footage I can see very clearly D1 raised his right hand high in the air and swung at the back of PW1’s head. As PW1 was getting up, D1 continued to hit PW1 repeatedly on his upper body until he was grabbed and pushed away by PW1. I believe D1’s intention was to hurt PW1 badly in order to get D2 free. PW1 was lucky not to have sustained much more serious injuries than he actually did. 99.According to the Exhibits P9A and 9B the medical reports on PW1, he sustained head, upper back and right leg injury. There was tenderness over his head, upper back and right leg abrasion wound over right leg and laceration wound over head. Suture of head laceration performed. 100.P12(7 to 17) are photographs of PW1’s injuries taken by police on 4 April 2020. Photograph (7) depicts two wounds at the occiput of PW1’s head. In my view, the wounds are no doubt serious. 101.My finding is the video clearly captured D1’s attack on PW1 including the moment he was hitting PW1’s head with a stone. I do not accept D1’s contention that PW1 could possibly be injured by the sharp edges of the broken fences during the course of the struggle. I have no doubt whatsoever the laceration wounds on PW1’s head were inflicted by D1. 102.Now I turn to consider the evidence against D2. Charge 1 103.The prosecution’s case against D2 is he picked up two pieces of stone, one in with each hand, drew his right hand back and mimed throwing a stone at PW1. In response, PW1 said to D2 “Throw it honestly, you do want to throw it, don’t you”. D2 then dropped both stones without throwing them and walked on. The evidence in support of this charge include PW1’s evidence and video evidence. 104.It is captured on Video 1 taken by PW1, as he was filming those three men outside his premises, D2 suddenly bent down, picked up two stones one in each hand then turned to face the direction of PW1’s camera, pulled his right arm backwards with a piece of stone in hand as if he was going to throw it at PW1. He then dropped two stones on the ground. PW1’s voice can be heard saying “Throw it, honestly, you want to throw it, don’t you, I won’t, I won’t coz I’m going to video you throwing it”. By what PW1 said it is very clear to me he did there and then apprehend immediate and personal violence by what D2 threatened to do to him. 105.Regarding the defence of self-defence, I adopt the same reasoning as I did when I rejected D1’s defence in the preceding paragraph (92). Charge 3 106.The prosecution’s case is D2 grabbed PW1’s right hand and caused PW1’s mobile phone to fall onto the ground. It is part of the admitted facts that the phone was damaged during the incident. The evidence in support of this charge includes the evidence of PW1, PW2, video evidence and PW1’s mobile phone produced as exhibit. 107.Video 2 was taken by PW2. It depicts PW1 and D2 grappling on the ground. DW2 was inside the fence, looked as if he was pulling PW1’s arm and D1 was standing in front of PW1 attacking PW1. PW1 got back on his feet and started grappling with D1 and so D2 was able to get back on his feet on the concrete path. PW2’s camera was fixed on PW1 and D1 but then at 00:04 I can see on the video D2 looking at the red-colour mobile phone bouncing onto the lawn. The red-colour mobile phone belonged to PW1. I tried hard to look from the video in order to find out how the phone came to be bouncing onto the lawn but unable to. However, I found the answer from P8(14). This is a photo shot that came from Video 2. It depicts D2 was holding a red-colour object in his right hand up in the air above his head as if he was throwing it onto the concrete surface. P8 photograph 12 depicts the red object landing on the lawn and photograph 13 depicts the red rectangular object landed on the lawn. The video footage at 00:05 depicts very clearly the red rectangular object was an iPhone, that is Exhibit P2. P2 belonged to PW1, the subject matter of charge 3. 108.I examined P2 and found one of the four corners of the glass cover at the back was badly damaged. I would add that I can see from the video footage between 00:04 to 00:05 and as well as the abovementioned photographs at the material time, D2 was on his own, there was no one near him. DW2 was some distance away to D2 at that time and he was in the course of crossing from inside the fence to the concrete path. Also I heard D2 swearing in Chinese “Fuck your mother or something stinky cunt” after he got back on his feet before throwing PW1’s mobile phone onto the concrete surface. That is one of the most vulgar, foul language commonly used in Hong Kong. For D2 to utter this kind of foul language, it reflects he was furious, irritated and in great anger at that time. Furthermore, it is an admitted fact that after D2 was arrested and cautioned, he said “He took photos or video of me without my consent so I pushed aside his phone”. By this admission, it is very clear for me that D2 was indeed so annoyed with PW1 filming him. 109.Based on the above evidence and observation, I have no hesitation whatsoever to find it was D2 who threw PW1’s mobile phone onto the concrete surface deliberately with the intention to damage it. Charge 4 110.As mentioned in the preceding paragraphs Video 2 does not depict how PW1 and D2 started grappling with each other and ended up on the ground. I have considered the evidence from both sides carefully. Their versions are very different and I find them equally probable. However, PW1 did give very different versions to the police as to how he fell onto the ground with D2 (see the preceding paragraph 15(5)) and his versions in court. As I am unsure which version is the truth of the matter, I have to give the benefit of doubt to D2 by finding him not guilty on this charge. Charge 6 111.According to PW2’s evidence, D2 came up and slapped his hand which he was holding his mobile phone. There was no video evidence to support such allegation. PW1 did not see that happened and so there is only PW2’s words against D2. Counsel for D2 points out in his submission, when the grappling first between PW1 and D2 then PW1 with D1 had ended completely, PW2 mentioned nothing about being slapped by D2 at all. Had D2 slapped PW2’s left hand, PW2 would surely have mentioned that in the video clip or at least the video clip would show evidence supporting such allegation but there is none. 112.I reviewed the footage of Video 2. As I stated in preceding paragraph, it appears to me that D2 was handing over a red phone case to PW2 but PW2 did not take it. D2 then bent down to put the phone cover down on the lawn. There is nothing on that part of the video which indicates D2 could possibly have committed the offence. After careful consideration, I have to give him D2 the benefit of doubt by finding him not guilty on this charge. 113.Regarding the two defence witnesses called as common witness for D1 and D2. I have to say at the beginning they are not independent witnesses, even in DW2’s case, he claimed he is no longer in D2’s employ. For DW1, D2 is his client and they have known each other for a long time. After careful consideration, I do not find their evidence credible. For DW1, as to why he did not ask PW1 to play the video for him to see clearly how he got injured, the evidence or explanation he gave does not make any sense at all. I do not believe there was a longer version of the video as DW1 alleged. If the “missing part” of the video only shows DW1 walking from his house to the corner of his garden, and PW1 was only holding his mobile phone and nothing else, why was there a need to edit the video. I placed no weight on DW1’s evidence. 114.And for DW2, it appears to me that the evidence he gave is selective for the defendants. For instance, he said he did not notice D1 bashing PW1’s head with a stone. Only after Mr Raffell asked him to look at Video 2 again, he agrees it was the case, D1 did bash PW1’s head with a stone. On the video I can see the moment he and D1 were trying to get D2 out. They were so close and D1 kept hitting PW1 on his head and upper body not once, how could he not able to see D1 was bashing PW1’s head with a stone? This is only an example to illustrate. I placed no weight on his evidence. Verdict 115.D1 is found guilty on charges 2 and 5. D2 is found guilty on charges 1 and 3 and found not guilty on charges 4 and 6.
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