HKSAR v. Chung Kin Wing

HCMA001324/2000

HCMA1324/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1324 OF 2000

(ON APPEAL FROM NKCC 3232 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 27 March 2001

Date of Judgment: 27 March 2001

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J U D G M E N T

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1. The appellant was acquitted on 27 November 2000 of wounding and assault occasioning actual bodily harm. Having acquitted the appellant, the magistrate bound the appellant over to be of good behaviour for a period of 12 months on his own recognizance in the sum of $2,000 to keep the peace and be of good behaviour. This was pursuant to section 109I of the Criminal Procedure Ordinance, Cap.221. Both the appellant and the respondent take no issue with the power of the magistrate to make such an order in an appropriate case.

2. The facts of this case were that this was a dispute between neighbours. Dogs were barking and a dispute took place between the wife of the appellant and the family next door who owned the dogs. The appellant came to the dispute, an assault followed in the corridor and all of them suffered injuries, including the appellant. There were evidence supported by doctors' reports to that effect.

3. The magistrate relied upon admissions by the appellant that he had been involved in an assault and violence and rejected the issue of self-defence. If the magistrate had been satisfied that the issue of self-defence had not been negatived so that he would be sure that the appellant did not act in self-defence, then he would not have been entitled to have bound over the appellant.

4. The magistrate deals with the issue of self-defence in two places in his Statement of Findings. Firstly :-

"Defendant gave evidence that he was all along acting in self-defence, and he was the victim instead. He said he was punched by PW3 and he found no way to escape and he pulled out a metal pipe originally placed in an earth box and only used it to point against the dogs without hitting anyone at all. As I found Defendant not telling the truth, I rejected his evidence."

and later :-

"As I intended to impose a binding-over order on the Defendant despite the acquittal, opportunity was then given to the Defendant to submit why this cause should not be taken. Mr Pickavant submitted that it was a clear case of self-defence and the answers from the record of interview should not be taken out from the whole context. However, as I rejected the evidence of the Defendant, particularly for acting on self-defence, the objection was not well-grounded."

It would seem from both these quotations that the magistrate came to the conclusion that the prosecution had negatived self-defence upon the basis that the evidence of the appellant was not to be believed. This is, of course, not the law. The law, as it stands, is that it is for the prosecution on the whole of the evidence to negative so that the magistrate is sure that the issue is self-defence. This was a fundamental point in this case and, in my view, the failure of the magistrate to deal with that point specifically is one which must give rise to some doubts as to his approach.

5. Ms Sin, counsel for the respondent, has taken me through the evidence and has indicated that there was material upon which the magistrate could have found that self-defence had been properly negatived. However, no proviso available in magistrate's appeals and I am satisfied that the failure by the magistrate to address this issue, particularly given the terms in which he expressed his rejection of the evidence of the appellant as being the reason why an objection that it was a case of self-defence, should be overruled and gives rise to concern.

6. The appeal of the appellant against the order of the magistrate that he be bound over to be of good behaviour for a period of 12 months in the sum of $2,000 is allowed and the order is set aside.

Representation:

Ms Mary Sin, SADPP of Department of Justice, for the Respondent

Mr John Pickavant of Messrs John M. Pickavant & Co., for the Appellant