HKSAR v. Leung Kit Hing Doris

HCMA 44/2024

[2025] HKCFI 5279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 44 OF 2024

(ON APPEAL FROM ESCC 2924 OF 2023)

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REASONS FOR JUDGMENT

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1.The Appellant was charged with one charge of “common assault”, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212. The particulars of offence stated that she assaulted a Mr Wong at the ground floor lobby of the High Court on 29 November 2023. She pleaded not guilty and was convicted after trial by Mr Jeffrey Sze, Magistrate (“the Magistrate”), and sentenced to 3 months’ imprisonment.

2.The Appellant appealed against the conviction and sentence as well as some of the orders made by Miss Ivy Chui, Principal Magistrate (“the PM”) and the Magistrate.

3.On 12 September 2025, upon hearing the respective submissions of the Appellant and the Respondent, I dismissed the Appellant’s appeal against conviction and the orders.  Her appeal against sentence was allowed to the extent that the sentence was reduced from 3 months to 6 weeks’ imprisonment.  I now give my reasons.

Background

4.The Appellant first appeared before the PM at the Eastern Magistracy on 28 December 2023, and she was not legally represented.  She complained that the prosecution sent the case materials to the Duty Lawyer Scheme (“DLS”) without her consent, and asked for an adjournment so that clarification could be sought from the Chief Executive of Hong Kong about the conduct of the DLS.  The PM adjourned to 22 February 2024 for plea to enable the Appellant to obtain the prosecution materials including the CCTV footage and seek legal advice before a plea was formally tendered.[1]

5.On 22 February 2024, the Appellant pleaded not guilty to the charge.  The prosecution reported to the PM that the Appellant refused to receive the prosecution bundle.  When questioned by the PM, the Appellant said it should be the prosecutor instead of the police to serve the bundle.  When the PM asked the prosecution to serve the papers to her during the hearing, the Appellant became agitated and behaved emotionally.  She refused to sign acknowledgment of receipt, and left the papers on the table in the courtroom.  She also opposed the PM’s decision to set the case down for trial on the grounds, inter alia, this case should be heard by the Court of First Instance (“CFI”) of the High Court; the CCTV footage was fabricated by the police; and she was not fit enough to attend court hearings. Finding that the grounds raised by the Appellant did not constitute any valid ground of adjournment, the PM refused to grant an adjournment and fixed the case for trial to commence on 16 April 2024 with 2 days reserved.[2]

6.On 16 April 2024, the first day scheduled for the trial, the Appellant was absent in the morning.  The Magistrate issued a warrant of arrest (without bail) against her.  She was arrested in the Court of Final Appeal (“CFA”) at 3:10 p.m., and brought before the Magistrate on 17 April 2024.  The reasons she gave for her absence were, inter alia, being her own counsel she could not sustain the stress of an oral hearing; she wanted to visit a doctor for some medical issues; she learnt about the issue of the arrest warrant around noon, and decided to go to the CFA to clarify whether all proceedings should be stayed pending appeal.[3]

7.On 17 April, the Appellant also applied to stay the proceedings as she insisted that this case should be heard in the High Court.  Her application was refused as the Magistrate found the grounds she raised did not justify the stay.[4]

8.By the end of 17 April 2024, the trial was part-heard.  The Magistrate decided to grant bail to the Appellant given the length of the adjournment.[5] The trial continued on 23 April, 7, 8 and 22 May 2024.

9.On 22 May 2024, the Appellant was convicted and sentenced to 3 months’ imprisonment.

Prosecution case

10.It was alleged by the prosecution that the Appellant pushed a security guard to the ground at the ground floor lobby of the High Court on 29 November 2023.  A total of 4 prosecution witnesses were called at trial.  PW 1 Mr WONG was the alleged victim.  PW 2 was the doctor who treated PW1 at the A&E Department of Queen Mary Hospital.  PW 3 was one of the police officers present at the scene, and PW 4 was the security officer in charge of the CCTV system in the High Court.

11.The prosecution also relied upon the medical report prepared by PW2 (exhibit P1), the CCTV footages of the High Court (exhibit P2) and the body camera footages of PW3 (exhibit P3).  The Appellant objected the admissibility of those exhibits on the following grounds:

(1)  The exhibits should have been provided to her prior to the first hearing of the case on 28 December 2023, and the late disclosure was against section 65B of the Criminal Procedure Ordinance, Cap. 221;

(2)  The CCTV and Body Camara footages had been “modified”;

(3)  The background of the case such as the role of the staff working at the High Court Appeals Registry had not been sufficiently considered; and

(4)  The testimonies of PW1 and PW3 were inconsistent.

12.The Magistrate determined the admissibility of P1-P3 by way of alternative procedure.  He found no unfairness would have been caused by ground (1), and grounds (3) and (4) had nothing to do with the issue of admissibility.  In respect of ground (2), having considered the relevant authorities as well as the evidence given by the prosecution witnesses and the Appellant on the special issue, the Magistrate found all the exhibits including the footages were prima facie authentic and accepted them to be adduced as evidence.[6]

13.The Magistrate succinctly summarised the prosecution case as follows:[7]

“3. PW1 was the Deputy Judiciary Security Officer of the High Court. On 29 November 2023 at about 1208 hours, he was informed that a lady was yelling and causing disturbance at the information counter at the ground floor of the High Court. He therefore went with a few colleagues to aid.

4. When he arrived at the information counter located at the ground floor lobby, he saw that the defendant was yelling over her mobile phone. PW1 introduced himself to her and advised her to lower her voice as she was causing nuisance. The defendant complained that some of her court documents were stolen by a South Asian man inside the Clerk of Court’s Office.

5. Meanwhile, PW3, a police officer stationed in the High Court, also attended the scene with other officers to assist. After making enquiries about the alleged theft incident, the police officers released the South Asian man. The defendant became emotional. She scolded the police and PW1 for letting the South Asian man to leave, accusing them of perverting the course of justice.

6. At some stage into the incident, PW3 switched on his bodycam to capture the incident. The footages he captured were relied upon by the prosecution (exhibit P3).

7. In the meantime, a staff of the Clerk of Court’s Office appeared and asked the defendant to return some documents. She began yelling and insisted that she did not take any documents away.

8. The defendant continued yelling and talking loudly until 1300 hours, which was the beginning of the lunch hour for court staff. PW1 therefore asked her to leave the Clerk of Court’s Office, but the defendant refused and continued to speak loudly.

9. Given her behavior, PW1 gave three warnings to the defendant between 1310 and 1320 hours for her to leave and explained to her that he was entitled to request those who caused disorder or disruption to leave. That if she refused to comply, he would engage the police to evict her. Upon the third warning, the defendant left the Clerk of Court’s Office and walked back to the information counter, where she kept speaking loudly.

10. In the meantime, after being warned by the police officers that arrest might be made if she refused to return the court documents, the defendant finally returned the documents. Thereafter, she remained at the information counter and continued to speak loudly.

11. Due to her behavior, PW1 gave further repeatedly warnings and requests for the defendant to leave the High Court building. That he was entitled to do so under Rule 6 of the Judiciary House Rule. However, the defendant became more agitated and refused to do so. At one stage, she even reached out to grab the staff card of a plainclothes security staff (Ms. Lee) which was hanging around her neck.

12. After a final warning for the defendant to leave, at 1432 hours, the defendant reached out her right hand which was holding her cellphone, stepped forward and pushed PW1’s left chest, causing him to lost his balance and fell to the ground.

13. Due to the fall, he felt pain in his back and was sent to the hospital to be treated by PW2, a doctor stationed in the A&E Department. He drafted a medical report subsequently based on his treatment and diagnosis [exhibit P1].

14. PW3 was one of the police officers who were present at the scene and took video footages with his body camara. The prosecution relied on these footages at trial.

15. On 11 December 2023, PW4, the security officer in charge of the CCTV system in the High Court, copied the relevant footages into a CD [exhibit P2] and stored it in a locked wardrobe until he passed it to the police subsequently. The prosecution relied on these footages at trial.”

14.According to the medical report (P1), PW1 sustained left sided chest wall tenderness and left lower back tenderness. 

The Defence Case

15.The Appellant had a clear record.  It was the Appellant’s case that PW1 fell to the ground by himself without being touched by her. She also submitted that she was wrongfully and unlawfully forced to leave the court building, saying that Ms Lee (a plainclothes security staff) pushed her in the back, and PW1 “surrounded his arm around her”.  Therefore whatever she did was under acting under “duress” and “necessity”,

16.The Appellant applied to call a number of witnesses on the general issue, and the Magistrate allowed five of them to be called.  As for the other three who worked at the Clerk of Court’s Office in the High Court (Colin, Henry and Calvin), the Appellant said they could show the “chain of causation” because they dealt with her civil appeal documents, and Colin admitted to her that he did not ask PW1 to evict her from the building.  Since the alleged assault did not occur at the Clerk of Court’s Office but at the information counter, the Magistrate did not see how it was likely for those three to give material evidence and refused the application for their witness summonses.[8]

17.The Appellant elected to testify and called five defence witnesses on the general issue.  They were WPC 1932 (DW1), SPC 51474 (DW2), PC 51346 (DW3), Mr Tang, a clerical staff working at the information counter (DW4) and Mr Leung, a security guard (DW5).

18.The Magistrate summarised the defence evidence as follows:[9]

“21. In general issue, the defendant testified that she did not scold the staff at the Clerk of Court’s Office. She claimed that the staff were on good terms with her. She claimed that she left the Clerk of Court’s Office as she did not wish to delay other court users.

22. She then went to the information counter, where she remained quiet and did not scold anyone. There she was considering if she should write to a judge or file a complaint.

23. Suddenly, there were people surrounding her, with Ms. Lee pushing her back, and PW1 surrounding her waist with his arm. Her briefcase was also grabbed by someone. She sought help from DW1 (WPC1932), WPC55854 and one Ms. Ho Mo Yee by asking them to make space for her to leave as she did not know what Ms. Lee and PW1 intended to do (“你地三個黎開條路比我啦，我唔知佢兩個想做咩呀”).

24. However, DW1 (WPC1932) did not approach to help as she was deterred by another police (SGT54396). Right before PW1 dropped to the ground, she was asking others to walk away and not to touch her as she would fall upon them (“唔該啦，行開啦，你地唔好掂我啦，我會成個人跌落你地到啦”). Thereafter, PW1 fell to the ground by himself without being touched by her.

25. On the other hand, while DW1 agreed that the defendant did seek her help, she did approach her and was standing just close to her, inviting her to leave.

26. About the CCTV footages, the defendant maintained that they were tempered before and during the trial. That the time stated in the CCTV footages were incorrect. That the woman shown therein was not her. She suspected that someone had copied her facial image and pasted it into the footages.

27. As to the bodycam footages, the defendant criticized that due to the angle of how it was taken, it only captured events that was against her and left out those that was in favor to her.

55. DW1 (WPC1932) testified that she saw that after the defendant submitted some documents at the Clerk of Court’s Office, she returned to the information counter. At some stage, the defendant asked to leave, and DW1 signaled by extending her arm and asking her to leave quickly. This was also captured by the body camara footages.

57. DW2 (SPC51474) was a police officer present when the defendant was in the Clerk of Court’s Office and when she returned to the information counter subsequently. DW2 found her to be emotional at the time. He only saw that the security staff had repeatedly asked her to leave but could not see any force exercised by them.

59. DW3 (PC51346) arrived at the Clerk of Court’s Office to deal with the incident. When he arrived, the security guards were already persuading the defendant to leave, but she was being emotional and unwilling to comply. After passing some documents at the Clerk of Court’s Office counter, she left and walked to near the information counter.

60. While at the information counter, the security guards and police officers continued to persuade her to leave the court building, but she refused to comply.

61. DW3 could not observe the defendant being attacked.

63. DW4 [Mr Tang] was the clerical staff working in the information counter. He had no recollection of seeing another woman pushing the defendant’s back, or a man touching the defendant’s waist and pulling her bag.

64. He did see some body contact amongst the defendant, the police officer, but he was not asked to describe the details of these contacts.

66. DW5 [Mr Leung] was one of the plainclothes security guards who attended the scene. He went to the Clerk of Court’s office at around 1210 hours that day to handle the situation. He gave the following account of the incident:

(1) At first, the defendant accused a South Asian man for stealing her documents while she was away from the photocopying machine.

(2) After the police officers dealt with the alleged documents theft incident, the defendant then complained to the police about the staff of the Clerk of Court’s Office, during which she was scolding the staff even just for their closing of the blinds.

(3) When it was 1315 hours which was way passed the lunch hour of the office, the defendant finally left the Clerk of Court’s Office upon exhortation by the police officers and security guards.

(4) The defendant then went to the information counter, when DW5 was being told that she had documents that were not yet returned to the Clerk of Court’s Office.

(5) Therefore, DW5 tried to persuade her to return, but she was unwilling to. This issue went on for a long time, during which the security guards had to correct the barrier tape in the area so as to allow passersby to walk through.

(6) Finally, at 1417 hours, the defendant went to submit some documents, during which she was scolding against the staff emotionally.

(7) Because her emotional attitude was a threat to others, DW5 had to involve in separating the defendant and other court users.

(8) After submitting the documents, the defendant returned to the information counter. DW5 then exhorted the defendant to leave the court premises due to her behavior. At 1425 hour, DW5 did explain to her that since her behavior had affected the operation of the court, she was asked to leave, failing which he would engage the police. Meanwhile, other security guards also urged her to leave.

(9) At this stage, she requested a woman police constable to approach her. She also scolded PW1 loudly, and pulled the Ms. Lee’s staff card which was hanging over her neck.

(10)  At 1430 hours, they began to evict the defendant. As it happened, the defendant suddenly rushed forward, stretched her right arm which was holding a cellphone, and her hand collided against PW1.”

Magistrate’s findings[10]

19.The Magistrate reminded himself of the legal directions on the burden and standard of proof, the drawing of inference and the good character of the Appellant.  He also reminded himself the ingredients of “common assault” as summarized in HKSAR v Chu Frankly(朱經緯)[11].

20.The Magistrate found no material unreasonableness or inconsistencies in the testimony of the prosecution witnesses.  They impressed him as honest and reliable witnesses, and he accepted their evidence.  Besides, the content of P1 was entirely consistent with the evidence of PW1 and PW2.

21.As for the weight to be given to the CCTV and bodycam  footages P2 and P3, the Magistrate was satisfied that they were untampered and they accurately reflected the course of the incident.  They were of smooth dynamic with satisfactory resolution.  He found the content of the footages was consistent with the evidence of the prosecution witnesses, PW1 and DW5.  The Magistrate accepted that the footages were completely authentic and accurate. They reflected what happened in this incident and he attached full weight to them.  He also accepted that the woman shown in those footages was the Appellant.

22.The Magistrate found the defence witnesses DW1-DW5 were honest and reliable witnesses, and he accepted their evidence.  DW2’s evidence was consistent with DW3.  The evidence of DW3 and DW4 was largely consistent with the CCTV footages.  DW5’s evidence remained unshaken and intact despite being challenged, criticized and interrupted by the Appellant.  His evidence was solid with details.  It was reasonable and consistent with the CCTV and bodycam footages.

23.The Magistrate found that the evidence of the Appellant was largely inconsistent with the DWs and the video footages.  He found her to be unreliable and dishonest, and refused to accept her evidence.

24.The Magistrate disagreed that the Appellant acted under “duress” and “necessity”.  He found that throughout the incident, there were numerous occasions which justified her eviction under Rule 6 of the Judiciary House Rule.  The security guards had rightfully and lawfully directed her to leave the building.  PW1 and DW5 had explained to her on numerous occasions the reason why she was asked to leave.  The Magistrate found that she was not acting under any belief that she was under attack or that a crime was being committed, or that it was necessary to protect herself.

25.On the evidence that he accepted, the Magistrate found as a matter of fact that at the material time, the Appellant did push PW1 with her right hand.  The only irresistible inference was that she did so with the intention of causing PW1 to sustain her force, and such force must be unlawful.  The Magistrate found that the prosecution had proven all the elements of the offence beyond reasonable doubt and convicted the Appellant accordingly.

Grounds of appeal against orders, conviction and sentence

26.Since 9 January 2024 (after the first hearing at Eastern Magistracy on 28 December 2023 and before plea was taken on 22 February 2024) the Appellant filed multiple notices of appeal under section 113 of the Magistrates Ordinance (Cap. 227) to appeal against the orders made by the PM and the Magistrate on various occasions as well as the conviction and sentence.  She also filed numerous typed and handwritten submissions from time to time, and sought to adjourn the hearing of this appeal “pending the CFA’s determination on her final appeal”.  The content of most of her handwritten submissions was illegible and incomprehensible.  Her application to adjourn the hearing of the appeal was rejected.

27.During the hearing of the appeal on 12 September 2025, she was asked to clarify the subject matters of her appeal and the grounds thereof.  The following is a summary of the subject matters and grounds of appeal:

(1)  The PM’s order on 28 December 2023 to adjourn the case: the adjournment was unfair as it would give time for the police to “modify” the CCTV footage and to fabricate evidence against her; the PM should have ruled “no case to answer” and acquit her straight away at the first hearing.

(2)  The PM’s order on 22 February 2024 to set down the case for trial: this case should be heard in the High Court, and her appeal in the CFI and the CFA were ongoing.

(3)  The Magistrate’s decision to issue a warrant of arrest for her absence in court in the morning of 16 April 2024: she called the Magistrates’ Courts around noon on 16 April 2024, and told the staff that she would be going to the CFA and see a doctor later.

(4)  The Magistrate’s ruling on admissibility of the prosecution exhibits:  the exhibits should have been served to her before the first hearing on 28 December 2023, and they should be served by the prosecutor not the police.  The police had “modified” the CCTV and the woman shown in the CCTV was not her.

(5)  The Magistrate’s decision not to allow her to call Colin, Henry and Calvin (staff of the Clerk of Court’s Office) as defence witnesses.

(6)  The conviction was unsafe and unfair: case was a set up; there was no evidence to support PW1; the Magistrate wrongly rejected her evidence that she was pushed by PW1 and the female security guard, and PW1 fell onto the ground by himself.

(7)  The sentence was too long: She was a person of good character and Magistrate wrongly regarded her behaviour as “barbaric”.

Respondent’s submissions

28.In respect of the Appellant’s appeal against the orders made by the PM respectively on 28 December 2023 and 22 February 2024, the Respondent adopted the PM’s “Reasons for Order”[12] which was further supported by 香港特別行政區訴陳海瀅[13] where Woo Kwok Hing, DJ (as he then was) dismissed the appellant’s appeal lodged pursuant to section 113 of the Magistrates Ordinance (Cap. 227) against an interlocutory decision of the magistrate on the reason that he did not have the jurisdiction to hear the appeal.  The Respondent submitted that orders made by the PM were interlocutory decisions which did not fall within the expression of “determination” under section 113 of the Magistrates Ordinance.

29.The Respondent submitted that it was correct for the Magistrate to issue the arrest warrant against the Appellant as she was being released on court bail and failed to attend the hearing on 16 April 2024.

30.As to the Appellant’s complaint about the service of the prosecution bundle, the Respondent pointed out that it was the practice all along for the police to assist the prosecution in serving the bundle.  According to their records, the police attempted to serve the bundle on the Appellant long before the trial but they failed to get into contact with the Appellant, hence the attempt to serve the bundle again during the court hearing on 22 February 2024 but the Appellant declined to take the bundle.  In any event the bundle was served before the hearing of the trial, as evident by her use of the witness statements in cross-examination.

31.The Respondent sought to uphold the Appellant’s conviction for reasons stated in the Magistrate’s “Statement of Findings”.  The CCTV and bodycam footages spoke for themselves.  PW1 and other staff of the High Court had all along maintained a calm and professional attitude in evicting the Appellant without using any force, but the Appellant pulled Ms Lee’s (a female security guard) staff card which was hanging over her neck and pushed PW1.  In the circumstances no defence would be available and the Appellant was rightly convicted of “common assault”.

Consideration of appeal against conviction and orders

32.According to the CFA’s decision in HKSAR v Hui Lai Ki [14], magistracy appeals are to be conducted by way of rehearing.  The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed.  An appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony.  Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

33.In respect of the Appellant’s appeal against the PM’s interlocutory orders made on 28 December 2023 and 22 February 2024, I respectfully agreed and adopted the legal principles set out by the PM in her “Reasons for Order” for the February hearing:[15]

“8.  It appears to me that this appeal is again instituted by way of Notice of Appeal against my order and purports to be made pursuant to section 113 of the Magistrates Ordinance (“MO”), Cap.227 which provides:

“113. (1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.”(emphasis added)

9.  In R. v. Wong Yin Ping, [1997] 2 HKC 312, Gall, J observed as follows :

“ An appeal lies at the suit of a person aggrieved by any conviction order or determination of a magistrate in respect of or in connection with any offence. Conviction, order or determination must be read ejusdem generis and whilst it covers orders in connection with an offence, it does not include orders or interlocutory decisions in connection with the trial of that offence. …”[16] (emphasis added)

Gall, J subsequently dismissed the appeal for want of jurisdiction in Wong Yin Ping[17]. 

10.  In R v Leung Kwong-fai, CACC 503/1982, Jones, J in paragraph 7 referred to the case of Newton v. Walker, (1875) H.K.L.R. 317 in which Pickering J summarised the position at page 321 and he said:

“ ................... I am fully satisfied, and hold, that it is not the intention of the subsection to permit appeals upon interlocutory matters arising in magistrates' courts. Were it otherwise appeals would proliferate like mushrooms at dawn to the impediment of the disposal of the work of the criminal courts.”

11.  In HKSAR v. Hung Fung Garment Company Limited, HCMA38/2009, the appellant Saw, J said in paragraph 16 that-

“The expressions “conviction, order or determination of a magistrate” does not apply to interlocutory orders.” (emphasis added)

Saw, J ruled in that case that the appeal was entirely without merit.  The law is clear and unambiguous.  The authorities are clear and unambiguous.  The appeal should never have been before the court. 

12.  Turning back to the present case. Based on the above principles and the authorities, section 113(1) of the Magistrates Ordinance does not apply to interlocutory decisions of a magistrate. It is apparent, in my view, that the decision made or the nature made in this case by me on 22 February 2024 were in the nature of interlocutory decisions. Therefore, the present appeal does not fall within the definition of the expression “determination”[18].

34.For the reasons stated by the PM, I agreed that her decision to adjourn the case on 28 December 2023 and the setting down of the case for trial on 22 February 2024 were interlocutory decisions to which section 113 of the Magistrates Ordinance was not applicable.  The Appellant’s appeal against those orders must be dismissed for want of jurisdiction.

35.Regarding the Magistrate’s issue of warrant of arrest on 16 April 2024, the first day of trial, I agreed with the Respondent that he was absolutely correct to do so.  The Appellant was released on court bail with an undertaking that she would surrender to custody as the court may appoint.  Her absence when the trial commenced constituted a deliberate breach of the bail condition, as such the issue of the arrest warrant was fully justified.  The fact that she chose not to surrender herself upon being told about the arrest warrant at noon time indicated a deliberate and wilful disregard of court orders on her part.  Her appeal against the issue of the arrest warrant was totally devoid of merit and must be dismissed accordingly.

36.In respect of the Appellant’s appeal against the Magistrate’s ruling on admissibility of exhibits, there was clear evidence at trial that the medical report (P1) was duly compiled by PW2 in accordance with his treatment and diagnosis of PW1. 

37.PW4 was the only officer in the High Court responsible for retrieving CCTV footages.  He copied the relevant footages into a CD and kept it in his safe custody until it was passed to the police (P2). He did not tamper with the footages.  PW1 was able to testify about the sequence of events prior to viewing P2 in court, and he testified that the footages reflected correctly of what happened at the material time.  As to the Appellant’s allegation that the footages played in court on the first day of trial was different from what was played subsequently, it was rightly dismissed by the Magistrate who had made notes of the contents on the first day of trial, and found no differences in the footages played on that day and those played subsequently.

38.PW3, being the officer who carried the body camera, testified about the sequence of events prior to viewing the bodycam footages (P3) in court.  He confirmed that P3 accurately reflected the course of the incident. 

39.The Magistrate’s ruling on the admissibility of the exhibits could not be flawed and there was no substance in the appeal against this ruling.

40.Regarding the reasons for not allowing the Appellant to summon three staff members of the Clerk of Court’s Office, I agreed entirely with the Magistrate that they were not able to give any material evidence as the incident of assault took place at the information counter after the Appellant had left the Clerk of Court’s Office.

41.At the appeal hearing the Appellant kept repeating her own version of factual events.  She elected to testify at trial and had the opportunity to put forward her account for the Magistrate’s consideration.  The Magistrate found her to be unreliable as her evidence was inconsistent with her own DWs and the video footages.  Examples of some of the inconsistencies were set out in detail by the Magistrate in the “Statement of Findings”[19], and I would not repeat them here.

42.During the hearing of the appeal I had also watched the footages P2 and P3 in detail.  I had no doubt that the Appellant was the woman depicted in the footages.  I agreed with the Magistrate that the content of the footages were consistent with the evidence of PW1 (victim of the assault) and DW5 (who saw the Appellant rushed forward, stretched her right arm which was holding a cellphone, and her hand collided against PW1).  There was no merits whatsoever in the Appellant’s complaint that the footages were fabricated.

43.Having carefully considered all the evidence by way of rehearing, I agreed with the Magistrate’s analysis of the evidence and his conclusion that the prosecution had proved the charge against the Appellant beyond reasonable doubt.  Her appeal against conviction was dismissed accordingly.

Consideration of appeal against sentence

44.The Appellant was a person of clear record.  In mitigation the Appellant informed the Magistrate that she was in her seventies (she was unwilling to give her exact age), she was single with no children. The Appellant said she had been working as a management consultant for over 20 years, and claimed to have served the public by making representation for protestors to the Commissioner of Police.

45.The Magistrate imposed a sentence of 3 months’ imprisonment for the following reasons:[20]

“6. The two aggravating factors in this case were that first, the defendant assaulted a security guard which belonged to a class which the court would impose deterrent sentence to protect them in carrying out their duties without fear from unlawful or violent interference.

7. Second, the present case occurred within the High Court which is not just a symbol but a venue to exercise the rule of law.

8. In 香港特別行政區訴賴容HCMA83/2019,the defendant walked into the courtroom where a Court of Appeal proceedings was being heard. While sitting in the public gallery, she suddenly stood up and threw three coins towards the Justices of Appeal. The coins did not hit anyone but was close to hitting a security guard. Following her conviction after trial, the defendant was remanded for 9 days before the magistrate imposed a suspended sentence. In dismissing the defendant’s appeal against sentence, Chan J opined that the court is a solemn place to resolve dispute. That no one should be allowed to cohere others to accept his view through violence. Tossing a coin completely defeated the purpose of the court, and was a blatant disregard of the law. Chan J observed that such phenomenon is unfortunately becoming more and more common in courtrooms, and a deterrent sentence of immediately custodial sentence is appropriate.

9. In 香港特別行政區訴陳漢元HCMA131/2023, the defendant pleaded guilty to one count of common assault and was sentenced to 4 months’ imprisonment by the magistrate. The facts was that the defendant was a former employee of the victim. While they were resolving their employment dispute in a courtroom in the Labour Tribunal, they argued about compensation matters, during which the defendant pushed the victim once and grabbed his neck twice, causing him to hit a plastic board. The defendant had an unrelated criminal record from 1981. Upon appeal against his sentence, High Court Deputy Judge Yau reduced his sentence to 14 days imprisonment.

10. Deputy Judge Yau observed that the case was different from intentionally attending the court with the purpose of carrying out the assault. That it was not uncommon to have verbal dispute within the Labour Tribunal between parties, and the defendant simply lost his temper because he could not accept an unrealistic compensation offer by his former employer. Deputy Judge Yau opined that it was a momentary lost of temper and not a premeditated crime.

11. However, Deputy Judge Yau further commented that even in the case of sudden lost of temper, being a venue to protect the rule of law, one who commit a crime within a court must be punished with deterrent sentence, and immediate custodial sentence is the only appropriate option. That suspended sentence or community service order are insufficient to reflect the seriousness of the crime or deliver the message.

12. In my view, the nature of the present case is more serious than the above authorities. First, it was not an impulsive attack. Prior to the assault, the defendant had caused immense disruption and disorder to the court by unreasonable behavior. It lasted for a long time and continued throughout the entire lunch hour while court staff, security guards and police officers were supposed to rest and eat. Much had been set out in my verdict and need not to be repeated here.

13. A solemn place to protect the rule of law had been affected by her barbaric act. She took it further at the end by assaulting a security guard who had rightfully directed her to leave. He was simply performing his duty to maintain the order of the court, and deserved protection in doing so. A deterrent sentence is necessary to warn those who intended to carry out violent act in court.

14. On the other hand, the defendant was convicted after trial and showed no sense of any remorse. Furthermore, she was one who had great difficulty in abiding to the laws: the defendant absconded on the first day of trial and after being told that an arrest warrant was issued against her, she did not return to court until arrested. Throughout the trial, she failed [to follow] court orders repeatedly and disrupted the proceedings willfully. Her risk of reoffending is extremely high.

15.  Given the serious nature of this case and background of the defendant, any form of non-custodial sentence is inappropriate.  I adopt a starting point of 3 months imprisonment.  There is nothing else which render further reduction.  3 months imprisonment is the sentence of this case.”

46.The Respondent submitted that the sentence of 3 months’ imprisonment imposed by the Magistrate was proper and not manifestly excessive nor wrong in principle. 

47.The Respondent submitted that PW1’s position and duty in the High Court was similar to that of a public officer, and it was an aggravating factor to assault an officer carrying out duties relating to public services.  Reference was made to the case of 香港特別行政區訴姚中富 [21] in which the defendant assaulted the belly of a security guard in Sheung Shui MTR station, causing her to fall down onto the ground.  Yau J pinpointed that the security guard was carrying out duties similar to those of a public officer, and should be treated with the corresponding respect and protection under the law. 

48.There is no tariff for the offence of “common assault”.  I agreed entirely with the Magistrate that case was aggravated by the fact that the Appellant assaulted a security guard which belonged to a class that the court would impose deterrent sentence to protect them in the execution of their duties without fear from unlawful or violent interference, and the fact that case occurred within the High Court which was a venue to exercise the rule of law.  Clearly an immediate custodial sentence was warranted.

49.I gave took into account the case of 姚中富 cited by the Respondent.  In adopting the 9-week starting point, Yau J had also taken into account the fact that the appellant in that case had four previous convictions for offences of violence.

50.Having considered the facts of this case, the Magistrate’s reasons for sentence, the authorities cited by the Magistrate and the Respondent, and the fact that the Appellant, being a person aged 75,[22] was a person of clear record, I considered that a sentence of 3 months’ imprisonment was too severe.  In my view the appropriate starting point should be one of 6 weeks’ imprisonment.  The Appellant was convicted after trial.  There being no other valid mitigating factor, 6 weeks was the appropriate sentence to be imposed. 

Conclusion

51.For the aforesaid reasons the Appellant’s appeal against the interlocutory orders and conviction was dismissed, and her appeal against sentence was allowed to the extent that the sentence was reduced from 3 months’ imprisonment to that of 6 weeks’ imprisonment.