The Queen v. Wong Chi Keung

HCMA001062/1986

BETWEEN;

Coram: Roberts, C. J.

Date: 17 December 1986

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JUDGMENT

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1. This is an appeal against a conviction for fighting in public, contrary to section 25 of the Public Order Ordinance, Cap. 245.

2. There was one witness called by the prosecutions, a police officer ("P. W. 1") who arrived at the junction of Shun Ning Road and Wing Lung Street on the afternoon of 27th July, 1986. Here he saw a group of three men fighting, "kicking and punching among them" as he describes it, and went up to them. They continued to fight. One of them escaped and he arrested the other two, who were subsequently charged.

3. D.1 pleaded guilty and D.2, who is the appellant today, pleaded not guilty. P. W. 1 did not see the early stages of the fight, which was already in progress when he arrived. He asked the two of them why they were fighting there. They said they were trying to get a space for hawking. It is not without significance that neither of the defendants said anything about having been attacked at that stage.

4. The appellant was unrepresented at the trial, but gave evidence on his own behalf. He said that D.1 and another man "came up and assaulted me" after they had had a conversation during which D.1 asked him if he had a protector. "We fought with each other, we fell on the ground - I stood up again - and the police arrived."

5. He was only asked one question in cross-examination -

"Q.         You fought back when the other attacked you?

A.	No - The other 2 punched me on to the ground and hit me. I first let them hit me."

6. The substantial criticism, which counsel for the appellant makes of the Statement of Findings, is that, although it must have been obvious to the magistrate that self-defence was being raised, he made no reference to it in his Statement of Findings.

7. It is not in dispute that the offence of fighting in a public place is not an absolute one, in the sense that to establish the offence the Crown must show that an unlawful fight is taking place. A fight is not unlawful to the extent to which a person taking part in a fight in a public place is acting in reasonable self-defence.

8. The magistrate, however, in his Statement of Findings, concludes -

"Having heard and seen the Police Officer and the Appellant, I had no doubt that the Appellant was fighting at this road junction. Indeed, in his own evidence he said: 'We fought with each other.'  I therefore found the case proved, and convicted the Appellant."

9. It appears, therefore, as if he did not direct his mind, as I think he should have done, to the question of self-defence. It may be that, had he done so, he would have been satisfied that the Crown, on whom the burden of disproving self-defence lies, had established that the appellant was not acting in self-defence, or he may nave decided that the Crown had not disproved this defence, especially in view of the fact that the only prosecution witness arrived after the fight was in progress.

10. The omission, on the part of the magistrate, to consider self-defence persuades me that he conviction is unsafe and that the appeal against it should be allowed and the conviction quashed.

Representation:

Miss E. Toh (Robert W. H. Wang & Co.) for Appellant

Mr. J. M. Gerber, Crown Counsel, for Respondent/Crown Prosecutor.