R. v. CHEUNG MEI SOI

1996, NO. MA 1362

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

(On Appeal from STMP 503 of 1996)

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J U D G M E N T

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1. Now, this is an application for leave to appeal against the order to bind the applicant over to keep the peace.

2. The application was made on the basis that the applicant had a fight with her neighbour as a result of an accidental bumping into one another. The learned magistrate made the order on the basis that the applicant was engaged in a struggle with the other person and thereby causing a lot of noise. The learned magistrate had also taken into consideration his observation of the behaviour of the applicant in court, although she did not in fact give evidence.

3. The learned magistrate also took into consideration the content of the cross-examination of the witnesses and as a result of which he came to the view that the applicant was aggressive, provocative, argumentative and was guilty of breach of the peace.

4. Throughout the case the applicant's position was that at the material time she was in fact assaulted by the other party. Although it was only an application for binding over, the learned magistrate could only rely on the evidence. With respect he was not entitled to observe the applicant in court when she was not giving evidence to form any adverse view on the applicant. He must not take into consideration allegations in cross-examination unless such allegations were subsequently supported by evidence. There was, in my view, on the evidence no basis for his conclusion that the applicant was aggressive, provocative, or augmentative. There was no basis for his conclusion that the applicant would in any way cause further unprovoked dispute.

5. On the evidence before the learned magistrate the applicant appeared in fact to be the victim of an assault. Quite apart from the question of whether the learned magistrate in fact had the power to bind over a person without his or her consent, the evidence as before him simply was not adequate, in fact there was no evidence at all to support the finding of the learned magistrate to justify the binding over order in question.

6. The application must therefore be allowed, the order of binding over is set aside and the costs is to be returned to the applicant.