R. v. Li Yiu Kin

HCMA000037/1997

1997, No. MA 37

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

________________

________________

Coram: Hon Sears, J. in Court

Date of hearing: 14 May 1997

Date of judgment: 14 May 1997

________________

J U D G M E N T

________________

1. This is an appeal from a Magistrate Mr Chan in Kwun Tong who has set out his findings in a very clear and examplary manner. He had a difficult case to deal with and I do not think he was greatly assisted by counsel who were then appearing.

2. There was an altercation that took place in a shop called the "Big Boy" in the Amoy Plaza in Kowloon Bay. A lady had gone along there with her son because she said he had bought a game at $2,000 and it was not working. She was obviously very angry and thought that her son had been cheated. The appellant was in the shop and there was an altercation that took place, the lady was in a very angry and aggressive mood and at one time she took her shoe off to apparently hurl it. She poked the appellant's head on a number of occasions with her finger. He said that he pushed her away and his hand may have gone into her face when he pushed her away. In my judgment it is probable that that did happen. There was no evidence that this was a punch.

3. The Magistrate said that he looked at the medical report which was produced and it said that she had some swelling on the left eye lid. Nothing other than that and an abrasion wound over her left face - a bruise. I am not sure what it actually was but the magistrate appears to have said that that allowed him to make a finding that he punched her.

4. In my judgment, one must be very careful when working off pieces of paper on medical reports to know really what evidence they do provide. It provides evidence that something came into contact with her face. He said it could not have been his palm, I confess I do not share that view. There was clearly an altercation going on. What he said at the very end was "I found that D1 and D2 did take part in the fight against each other". Now the offence of fighting in a public place is that it must be an unlawful fight, see, for example, R. v. Wong Chi Keung [1987] 1 HKC 360. A person is entitled to act in reasonable self defence. The magistrate said, as Mr Cheung pointed out to me, it was unreasonable and unwarranted for him to have retaliated with so much force. I find that difficult to follow. If he meant because of his earlier finding that his conclusion was that something hard had come into contact with her face, I do not share that view.

5. In my judgment, his finding therefore that it was unreasonable and unwarranted is not justified by the evidence. It must be understood that this clearly was a very very angry lady who was poking her finger on the appellant's forehead and the probabilities are that what he did was to push her away. It may be that he had pushed her away hard, but that does not make his action unlawful. He was a man of good character. The magistrate did not give himself the standard "Berrada" warning although magistrates do not have to set every single matter out, it must be recognized that convictions are treated by people in Hong Kong as an important slur on their character. Mr McCoy has emphasized that there was a doubt in this case as to whether or not this was an unlawful fight.

6. In my judgment, on the evidence which indicated that he was not the initial aggressor and that the evidence disclosed that he was taking a lot of aggravation from this lady and he then reacted in the way he did does not automatically justify a finding that he was unlawfully fighting.

7. Whilst I consider the magistrate was not helped by counsel and had a difficult case, in my judgment, there is a reasonable doubt in this case and I would allow the appeal.

Representation:

Mr W.S. Cheung, S.C.C., for Crown

Mr G.J. McCoy Q.C., inst'd by M/s David Kavenscroft & Co., for Appellant