HKSAR v. Lee Wai Ben
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HCMA558/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 558 OF 2009 (ON APPEAL FROM ESCC 6053 OF 2008) ----------------------
---------------------- Before: The Honourable Mr Justice Line in Court Date of Hearing: 16 October 2009 Date of Judgment: 16 October 2009 ---------------------- J U D G M E N T ---------------------- 1.This is an appeal against a refusal by a magistrate to award a successful Defendant costs following his acquittal in the Magistrates' Court. The Appellant had been charged with an offence of wounding in circumstances where he was acting in the course of his employment as a bouncer outside a public house in Wanchai. 2.PW1, who was the victim, was clearly drunk and behaved offensively. He was escorted out of the premises by somebody else and when he got outside, where the Appellant was standing, was rude to him, the conduct being confined to verbal rudeness and verbal aggression. What happened then, happily, was caught on CCTV footage and I quote from what the magistrate said in his statement of findings:
3.Now, unfortunately, the footage stopped there. You could not see what happened, but it was admitted that there was a push at that stage and the fact was that the victim went to the ground and cut his head. The acquittal was on the basis that there was doubt, for reasons I am not going to go into now, but for good reasons there was doubt whether or not the push had, in fact, caused the fall that caused the injury or whether or not the man just fell over because he was so drunk. In fact, there is material before me today, which was not before the magistrate, which suggests it was the latter but that does not matter because this court cannot and will not go behind the acquittal. 4.The question was did the Appellant bring the matter upon himself and the answer that the magistrate gave to that was, certainly, and I agree with his assessment of it. The conduct of the man turning to walk away and the bouncer following him and placing hands on him was folly in the extreme, in my view. An attempt has been made today on the hearing of this appeal to put before me by way of affirmations evidence from security men saying that such conduct was lawful, that it had been taught to the man and that it was entirely proper and professional. That application met with very short shrift for obvious reasons. The assessment of a man's criminality on what is clearly proven to be his conduct is a matter for this court and not a matter for the opinion of security men. The fact was the bouncer, at the stage in question, was not acting in self-defence. The aggressive man, the drunk, had turned away and was leaving. What could be further calculated, I ask rhetorically, to cause more trouble than put your hands on him and give him a push? 5.It has been said that it is when the drunk turns away that he can put the bouncer at his ease and then turn round and take a swing at him. If that was the real fear in this case, all the bouncer needed to do was to take a step backwards, rather than go after the man and lay hands on him. Going after the man and laying hands on him, in my judgment, was clearly unlawful and, in fact, the Appellant would have had no answer to a conviction for common assault, but that is an aside I make, not the reason why I support the magistrate in his finding. The answer is the CCTV footage shows clearly how the Appellant brought the matter upon himself. 6.In those circumstances, the appeal against the Order is dismissed. (Submissions re costs) 7.There is an application for the Appellant to pay the Respondent's costs of today. It is an application I shall allow. In my judgment, the appeal was without merit and there is no reason why the public should pay in those circumstances.
Representations: Ms Hermina Ng, Public Prosecutor of the Department of Justice, for the Respondent Mr James H M McGowan, instructed by Vidler & Co., for the Appellant |