HKSAR v. ONWUGBONU, FELICIA P AND ANOTHER

HCMA 729/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 729 OF 2003

(ON APPEAL FROM TWCC 906/2003)

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J U D G M E N T

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1. Both Appellants were convicted in the Magistracy, after trial, of one charge of Fighting in a Public Place, contrary to section 25 of the Public Order Ordinance, Cap. 245. The 1st Appellant was fined $750 and the 2nd Appellant was fined $2,000. The 1st Appellant (A1) appeals against her conviction and the 2nd Appellant (A2) appeals against both conviction and sentence.

2. The basic facts relied on by the prosecution were that A2 was the driver of a taxi in which A1 together with an older woman and her two children were passengers. Evidence was given by a solicitor, PW1, who was passing by in a car and PW2, a security guard who later attempted to stop the fighting.

3. PW1 told the court he saw the taxi stopped at the car park entrance to Belvedere Garden Phase 2 and saw the parties fighting on the pavement near the rear of the taxi. This witness actually observed A2 leave his taxi and initiate the fight. Security guards from the Estate approached the group and attempted to separate them. Later, after being separated, A1 and her friend allegedly continued to pursue A2. The Appellants were taken to opposite sides of the road and restrained while police were called. Subsequent medical examination revealed that A1 had swelling on her left leg and right wrist and A2 had abrasions over his face and chest wall.

4. A1, who was represented, did not give evidence, nor did she call any witnesses. A2, who appeared in person, gave evidence on his own behalf, but did not call any witnesses. The Perfected Grounds of Appeal against conviction for the 1st Appellant are summarised as follows:

(1)

Whilst the Magistrate correctly ruled that self-defence is a complete answer to a charge of fighting in a public place, and that the onus is on the prosecution to exclude self-defence beyond reasonable doubt the Magistrate erred in applying those principles to the facts of the case and a miscarriage of justice ensued as a result.

5. Ground 2 was that the Magistrate fell into error when he made a finding of fact that:

"After the parties had been successfully separated, D1 (A1) had attempted to restart the fight again"

when the actual evidence did not establish this was so.

6. The third ground was that the Magistrate erred in finding that:-

"seemed like trying to fight again"

was of the same meaning as fighting (per se), when the former was no more than a possible manifestation of intention whereas the latter by definition was a completed act.

7. A2 was not represented at this appeal and he filed home-made grounds of appeal against conviction:

(1)	That the fighting had allegedly taken place within the area of a private estate and therefore was not a public place.
(2)	That when A2 arrested the passengers the three of them resisted.
(3)	The Magistrate did not take into account assaults the passengers had committed before the witnesses came into the picture.
(4)	The Magistrate placed too much weight on the witnesses' evidence.

8. For the appeal against sentence, the complaint was that:

(1)	A1 had been fined only $750, compared to his fine of $2,000.00 for the same offence.
(2)	The Magistrate had not taken into account the alleged criminal damage occasioned by A1.
(3)	The Magistrate did not consider that the other two persons (presumably the elderly woman and the child) had not been prosecuted.
(4)	The Magistrate did not take into consideration that A1 had been spared being charged with other offences by the police.

The general ground was that the sentence was too severe.

Consideration of the 1st Appellant's appeal against conviction

9. An independent eyewitness, Mr Lo (PW1), saw A2 rush up to his erstwhile passenger (A1) after she alighted from the taxi and attack her. A1 retaliated and the Magistrate considered that her reaction at that stage was self-defence, which had not been disproved by the prosecution. In his Statement of Findings he set out, correctly, the principles relating to the defence of self-defence.

10. The Magistrate looked for evidence of self-defence, reminding himself that once a defendant had raised this defence, it was for the prosecution to disprove it beyond reasonable doubt. He reminded himself that a person being attacked could defend himself by making the first move, but had to act reasonably with regard to the violence used against him. He also bore in mind that if in a moment of anguish a defendant had done an act he or she reasonably and instinctively believed was necessary, the defence could be established. He considered the question of self-defence for each of A1 and A2.

11. The Magistrate found that A1's reaction initially was self-defence and that self-defence had not been disproved by the prosecution. The security guards who came to the scene separated the protagonists and after a short hiatus, according to PW2, A1 and A2 were seen again to be engaged in a struggle. The Magistrate decided that, at this point, A1 had lost the advantage of the defence of self-defence and had become an equal participant in the fight. On that basis, she was convicted.

12. However, there was no cogent evidence to support the view the Magistrate took about the struggle. There was no clear evidence about how or why the struggle resumed. The evidence by PW2 in that regard was ambiguous. Certainly, there was no evidence sufficiently strong to disprove self-defence was continuing.

13. At paragraph 9 of the Statement of Findings, the Magistrate stated:

"I found the part in PW1's evidence where D1 and the woman were getting the better of D2 caused me to believe that D1 had begun to exceed the actions of self-defence and had begun to intentionally participate in a fight, despite the fact that D1 had not attempted to fight when separated. However there was also a reference to "pushing" in that part of the evidence and this caused me to question whether D1 was still acting in self-defence. I therefore paid careful attention to what else happened to be satisfied beyond reasonable doubt that there was no continuance at this stage of the self-defence actions by D1 and the woman."

14. Paragraph 6 is his final conclusion:

"I found that D1 had fended off D2 and acted in self-defence when D2 had approached her. However, I found that D1's later actions had not been in self-defence but she had gone beyond self-defence and had intentionally become an aggressor in the fight. I found therefore that the charge of fighting in a public place was proved beyond reasonable doubt against her."

15. The problem arose because PW2 had come to the scene after PW1 had left it. He had not seen the beginning of the incident and was further disadvantaged by having had his view of the matter distorted by what he had been told by other people at the scene. PW2 stated in his evidence:

"My own opinion is that they were fighting. And from the information I gathered, there was somebody fighting at the entrance to the estate and, so I was under the impression that a fight was going on (Transcript p. 63T to p. 64B)."

16. The relevant evidence given by PW2 was:

"While the man was being pulled away...... the two ladies seemed like trying to fight again but two colleagues pulled them away and the two parties were separated on opposite sides of the road." (Transcript p. 65 K-M) (emphasis added)

17. The Magistrate interpreted this as a definite statement that A1 had attempted to restart the fight. In fact, no evidence was led and it was not possible to work out from the evidence given, how the second phase of the incident started, or how the fighting allegedly restarted. Given this gap in the evidence, there was insufficient evidence to support the view the Magistrate took of the renewed struggle. It was not possible to be sure that the prosecution had disproved self-defence.

18. For this reason, I allow the appeal of A1. The appeal is allowed, the conviction quashed and any fine paid is ordered to be returned.

Consideration of the 2nd Appellant's appeal against conviction

19. I am satisfied that the Magistrate dealt correctly with A2. Clearly the area where the incident took place was a public place and the Magistrate so found. The fighting was unlawful as A2 was not acting in self-defence and the prosecution had properly disproved that defence beyond reasonable doubt. He found that A2 was the aggressor in the fight. Accordingly, I dismiss the appeal of the 2nd Appellant against conviction.

Appeal of the 2nd Appellant against sentence

20. The main complaint of A2 was that he was fined $2,000 whereas for the same conviction, A1 was fined only $750. A2 had a clear record; he was a married man of 40 with three children. He earned $7,000 per month. He told the Magistrate that his glasses, which had been broken in the incident, cost $600. He had been required to attend the police station six times during the investigation. At the appeal hearing he informed the court that he paid 620.00 per day for the rental of his taxi as he drove 2 shifts daily.

21. The Magistrate noted the maximum penalty for the offence was at level 2, which is a maximum of $5,000 and/or 12 months imprisonment. He considered a $2,000 fine was appropriate for A2's part in the offence taking into account his clear record and because he found there had been an earlier incident in the taxi that caused A2 to lose his temper. He was satisfied, having made enquiries, that A2 was able to pay the fine.

22. It appears from the transcript that there was some justification for A2 being aggrieved by the difference in fines originally imposed. A1's fine was placed at a lower level because counsel advised the court of her position as a dependent wife whose husband, a pastor, depended on his congregation for support. However, in the circumstances, the fine imposed by the Magistrate did not take sufficient account of the comparatively low income of A2 given his family commitments and the diminished income of taxi drivers generally in this period of recession.

23. For these reasons, I allow the appeal against sentence, to the extent of imposing a fine of $1,000 instead of the $2,000 imposed by the Magistrate.