HKSAR v. HAU KIN

HCMA 478/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 478 OF 2003

(ON APPEAL FROM NKCC 2469/2003)

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REASONS FOR JUDGMENT

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1. The Appellant was convicted after trial of Fighting in a Public Place, contrary to section 25 of the Public Order Ordinance, Cap. 245 and was fined $2,000.00. He appeals against his conviction only.

2. At trial, the Appellant was the 2nd Defendant. The facts were that a "bumping incident" occurred between D1 and the Appellant, the aftermath of which involved mutual shouting and bad language, but no violence. The Appellant, who had just arrived back from a trip to China, left the scene to get some noodles, but was followed by D1. Neither D1 nor the Appellant knew each other prior to this incident.

3. D1, who apparently had been drinking, (according to the police officers who later dealt with him) struck the Appellant on his back with a stool. At the same time, he grabbed the Appellant's right hand with his left hand. They fell to the ground wrestling, the stool remained in the D1's hand. During the struggle, the Appellant was able to grab the stool and hit D1 on the head once. The stool broke into pieces which scattered on the ground. The Appellant was seen to walk forward, pick up part of the stool and walk towards D1. At that point, police officers who had seen the incident, which was of very short duration, stopped the two men and revealed their identities as police officers.

4. D1 suffered tenderness and laceration on his right hand, an abrasion over his left elbow and, when the police first saw him, was bleeding from a wound about 2 inches long on head, although it is not clear if that injury resulted from the struggle, or because D1 had fallen to the ground.

5. The Appellant suffered tenderness and redness on his right back area, as well as abrasion on his right back, right thumb and right elbow.

6. PW1 was an off-duty police officer who saw the men quarrelling and saw D1 grab the stool and hit the Appellant's back with it. At the time he saw the Appellant pick up a piece of the stool, he shouted "Police! Freeze!". His evidence was that although D1 appeared to be in pain and showed signs of dizziness, he was himself trying to get up from the ground to take another piece of the stool. He was stopped by PW1.

7. PW2, the second police officer arrived at the scene. At that stage, D1 was lying on the ground. He did not physically examine the head of D1. He confirmed D1 smelt of alcohol.

8. The Appellant gave evidence. He is a man of clear record, aged 39, who had just returned from Mainland China. He confirmed he did not know D1. He said D1 caused the bumping incident and agreed there was an exchange of foul and abusive language. He said although there was a laceration on D1's head, he did not know how D1 sustained the injury. He claimed that he was trying to defend himself from attack by D1.

9. The Deputy Magistrate rejected the Appellant's evidence in its entirety. He considered the question of self-defence, as the Appellant could rely on it as a defence to the charge and the burden of negativing it rested on the prosecution. He examined the evidence to see whether what the Appellant had done amounted to self-defence and noted the force applied had to be reasonable in the circumstances of the case, although this was not be adjudged purely objectively. His summary was as follows:

" The appellant was hit with a stool at his back by D1, but not with great force. Otherwise, he would feel the great pain. Both of them then wrestled on the ground. The appellant successfully took away the whole stool from D1. At that time, D1 was still lying on the ground. I found that it was the situation which was also obvious to the appellant that D1 no longer imposed any threat of danger on him.

The appellant decided to hit on D1's head with the whole stool with such great force that the stool broke itself and D1's head. I found that the appellant's act of aiming the attack with the stool on D1's head and with such great force as applied by him exceeded a reasonable force in the circumstances, either adjudged subjectively or objectively. Besides, the appellant's act of hitting D1's head with a stool in the circumstances was unreasonable. After D1's head and the stool were broken, the appellant's attack on D1 did not stop there. The appellant picked up an A-ladder shaped fragment of the stool and intended to further attack on D1 with it. Fortunately, the appellant was stopped by a police officer, PW1."

10. The Deputy Magistrate erred in ruling out self-defence, in particular because he did not consider whether pre-emptive action by the Appellant to stop D1 attacking him was justified. That question was examined in Beckford v. The Queen [1988] A C 130. The Appellant was attacked from behind by D1 who used the stool as a weapon. The Appellant, not unnaturally, retaliated and successfully wrested the stool from D1. Although the Deputy Magistrate refers to the Appellant using such great force that the stool broke, there is nothing to support that, nor is the condition of the stool prior to its use as a weapon known. The fact it broke into pieces is not necessarily an indication of the degree of force.

11. The incident took place in seconds - it is difficult to see how the Appellant would have had time to do more than react to the attack by D1, let alone judge whether his retaliation was proportionate. It is difficult, given the circumstances described, to see how the Deputy Magistrate could have been sure that the Appellant's act was unreasonable, or drawn the irresistible inference that in picking up the fragment of stool and moving forward he intended a further attack.

12. For these reasons, I am not satisfied that the Deputy Magistrate incorrectly ruled out self-defence as being available to the Appellant. Accordingly, I allow the appeal.

13. I would like to comment on the unfortunate use of this particular charge by police. It appears that the police, either to save time, or to save the trouble of further investigation, not infrequently prefer a charge of fighting in a public place when properly they should charge one or other party with assault. It appears this is such a case. This was a violent attack precipitated without good reason by a man who appeared, on the police evidence, to be affected by alcohol. The Appellant was defending himself, in retaliating as he did.

14. The preferable course in this situation was to charge D1 with Common Assault, or Assaulting Occasioning Actual Bodily Harm, rather than charging both men with fighting in a public place and leaving it to the Magistrate, at trial, to conduct an investigation into the facts which the police prefer to avoid.

15. The appeal is allowed, the conviction quashed and the fine, if paid, is to be returned to the Appellant.