HKSAR v. Yung Chi Tung
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HCMA296/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 296 OF 2008 (ON APPEAL FROM KTCC 7227 OF 2007) ----------------------
---------------------- Before : Hon Tong J in Court Date of Hearing : 14 October 2008 Date of Judgment : 14 October 2008 Date of Reasons for Judgment : 21 November 2008 ----------------------------------- REASONS FOR JUDGMENT ---------------------------------- 1.The appellant (the 2nd defendant) was charged jointly with another defendant (the 1st defendant : D1) for fighting in a public place and criminal damage. The appellant and D1 both pleaded not guilty to the charges. After the trial, the learned magistrate acquitted the appellant on the criminal damage charge but found him guilty of the fighting charge. As to D1, the magistrate acquitted him of both charges. 2.The appellant seeks to appeal on the conviction. 3.The trial was conducted in English but I gave leave to the appellant to write and make submissions in Chinese as he said he could not afford to engage a lawyer nor does he know English. 4.This case involved a dispute that had taken place in the lobby of Ching On House, a residential building. The main witness for the prosecution was Madam Yeung (“PW1”). She was the security guard of the building. She testified that she was on duty in the lobby on 30 October 2007. At one stage, she noticed that D1, a non-resident, had taken the lift to go upstairs but he returned, shortly after, to the lobby and was about to leave. However, the appellant, who lived in the building, saw D1 and asked her whether D1 was a resident. 5.PW1 said somehow, D1, on hearing that, rushed back from the main entrance to attack the appellant, but the latter warded him off and grabbed D1 by the neck. A struggle between then ensured. Later, the police arrived and arrested both of them. 6.After the prosecution case, both D1 and the appellant had elected to give evidence. D1 stated that he actually lived in a neighbouring building. On the day in question, he was going to visit a friend in Ching On House, but he failed to locate him. As he was leaving the building, he heard someone shouting. It occurred to him that he had forgotten to register as a visitor so he returned. Then he had a row with the appellant about his presence there. He said that when he was going to register his name, the appellant blocked his way, attacked him and forcibly restrained him until the police arrived. D1 said he did not kick nor hit back, hence there was really no fighting between him and the appellant. 7.The appellant said otherwise. He testified that after he had gone home that day, his wife complained to him that someone had tampered with their iron gate earlier. So the appellant went out to see if he could find the suspect. Upon returning to the building, he saw D1 who was about to leave. So he made enquiry with the security guard as to whether D1 was a resident there. But D1 then became aggressive and hit him. He fended off D1’s attack and managed to subdue him, which was done in self-defence, and he was the one who told the security guard to call the police. 8.In her evaluation of the evidence, the learned magistrate concluded that PW1 was not a credible witness because of her contradictory testimony. The magistrate considered PW1 to be biased and what she said was also inconsistent with the contents of the CCTV tape. Similarly, the magistrate was not impressed by the appellant’s account. She pointed out in her statement of finding that :
9.The magistrate also rejected the appellant’s claim of self-defence. She stated :
10.As to the evidence of D1, the magistrate considered him to be a truthful witness. She had this to say :
11.The magistrate stated that she would accept and rely on the account given by D1 and the contents of the CCTV recording. The magistrate found that when D1 returned to the building, he did not rush back to attack the appellant as PW1 and the appellant had claimed; it was the appellant who had, unreasonably, restrained D1 at the guard post and held him down until the arrival of the police. (See the paragraphs under evaluation and self-defence in the Statement of Findings.) 12.In conclusion, the magistrate made the following specific findings :
13.What had transpired was, in effect, that the magistrate had rejected the evidence of the main prosecution witness, but accepted the evidence of one of the defendants (D1). She also relied on the evidence of the CCTV recording, which showed part of the incident, to convict the appellant of the charge of fighting. 14.However, it is really common sense that it would take two to fight. Of course, like the offence of conspiracy, one defendant may be acquitted of fighting whereas another defendant may be convicted, depending on the nature of the evidence and the issue of admissibility. But here, the magistrate had believed one of the two defendants who said he did not fight with the other defendant. Logically, then there was no fighting between the two defendants and it was a case of assault by one on the other. Hence, the charge of fighting could not be established. The magistrate did say that D1 was assaulted by the appellant (see paragraph 22 of Statement of Findings). If so, the magistrate should have amended the charge according to section 27 of the Magistrate Ordinances, Cap. 227 and the appellant should be given the opportunity to meet that particular charge. 15.It may well be difficult to decide, against the background of this case, at what stage the amendment should be made, and on how to proceed with the trial if the magistrate wish to rely on the evidence of a co-defendant to convict the appellant on a different charge. But that would be a matter for the trial magistrate to decide. 16.In the circumstances, the appeal was allowed, the conviction quashed and the sentence set aside.
Mr Marco Li, SPP of the Department of Justice, for HKSAR The Appellant, in person, present |