HKSAR v. Leung Tung Ming

HCMA91/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.91 OF 2005

(ON APPEAL FROM KCCC 12707 OF 2004)

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BETWEEN

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Before : Hon Pang J in Court

Date of Hearing : 11 May 2005

Date of Judgment : 11 May 2005

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J U D G M E N T

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1.The appellant, Leung Tung Ming, was convicted after trial before a magistrate sitting in the Kowloon City Magistracy of one charge of fighting in a public place.  He was fined $3,000 and he now appeals against his conviction.

2.One notable flaw in the Statement of Findings by the learned magistrate is that he made no reference to the evidence of a defence witness, one Mr Sham, who had given evidence for the defence at the trial.  Mr Sham’s evidence in the context of the case was that he supported the appellant’s version that there was no fighting.  His evidence, if accepted, would have cast serious doubt on the prosecution’s case against the appellant.  No reference was made by the magistrate to Mr Sham’s evidence.  If the magistrate rejected this part of the defence evidence, no  reason was given. 

3.Miss Pang, for the respondent, had quite fairly conceded that this omission is fatal in the appeal against the conviction of the appellant.

4.For the reasons given, the appeal against conviction is allowed and the fine, if paid, is to be returned to the appellant.

Miss Anthea Pang, SGC of DPP,  for the Respondent

Mr Kelvin Leung, instructed by Messrs Hau, Lau, Li & Yeung, for the Appellant