HKSAR v. Chan Kai Ming

HCMA494/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.494 OF 2005

(ON APPEAL FROM TWCC 435 OF 2005)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 3 August 2005

Date of Judgment : 3 August 2005

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J U D G M E N T

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1.The appellant was convicted on 3 May 2005 of one charge of fighting in a public place and on the same day he was fined $750.  He now appeals against that conviction.

2.The facts were at issue.  The prosecution called three witnesses and of those three witnesses the magistrate believed PW1 and PW2 but disbelieved PW3 unless he was supported by PW1 or PW2.

3.PW1 was a branch manager of Ricacorp, a property agency shop, and PW2 and PW3 together with the appellant were employees who worked under.  There was no argument concerning the date, time or place of the incident nor where it took place. 

4.The evidence of PW1 was that she arrived at the office in the morning and found the appellant and PW3 quarrelling.  She made enquiries of them as to the quarrel and at one stage placed herself between them with PW3 at her front and the appellant at the back.  She said in this position she saw PW3 punch at the appellant past her right ear and that the appellant punch PW3 from behind her.  She did not see where the punches landed.  She said that it was chaotic and did not know whether the appellant’s punches had hit PW3 because she only saw his fists move.  They grabbed each other.  She shouted at them “stop”, could not separate them and told them to go outside.  She did not see what happened outside but did hear noise coming from them for several minutes.  After several minutes, she said she went outside and saw them still in dispute and told them that they must stop or otherwise she would call the police. 

5.PW2 was checking a computer in the shop facing away from the incident.  He heard rather than saw PW3 enter the shop and scold the appellant, heard foul language and a quarrel.  He saw PW1 between PW3 and the appellant trying to mediate.  He did not see any violence.  He saw them go outside without seeing any grappling between them and said outside he saw they pushed and shoved each other. 

6.There were discrepancies between the evidence of PW1 and PW2 with which the magistrate dealt properly.

7.The appellant gave evidence.  He said he arrived at work and saw PW2 in the shop.  When PW3 arrived, bad language was used between the two of them and he said he left the shop.  He went to the shop area next door and after some three minutes, PW3 dashed out of the shop towards him, scolded him and punched him twice, the first punch landing on his left cheek.  He said he put his hand up to the area and was delivered the second blow which hit his fingers.  He said he did not retaliate to push PW3. 

8.The magistrate considered the issue of self-defence.  He did so in these terms :

“I reminded that if the defendant raised self-defence, the prosecution had to disprove beyond reasonable doubt.  I found the defendant had never raised any issue of self-defence as he said he had never responded in any way except verbally.” 

9.It is clear from this passage that the issue of self-defence was in the mind of the magistrate.  A proper direction would have been to his reminded himself that if the issue of self-defence was raised on the whole of the evidence, whether from the prosecution or the defence, then it was for the prosecution to disprove it beyond reasonable doubt and then to go on to consider whether or not it had been disproved to that standard. 

10.There is evidence upon which the magistrate could have considered on the prosecution case that self-defence had been raised.  It was specifically denied by the appellant who did not raise it and he quite clearly on the cases presented did not wish the issue considered.  I must, however, consider that even bearing in mind that this is an experienced, confident and knowledgeable magistrate, he has in his statement of the law, restricted himself to considering whether or not the appellant raised self-defence without the appropriate wider consideration of the raising of that defence.

11.In all the circumstances, I must have some doubt as to whether or not full consideration was given to the issue of self-defence.  The appeal is allowed.  Conviction quashed and sentence is set aside.

Mr Jackson Poon, SGC of Department of Justice, for the Respondent

Mr Eric Cheung, instructed by Messers Y.L. Yeung & Co., for the Appellant