HKSAR v. LEI SAN POU

HCMA 796/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 796 OF 1999

(On Appeal from NKCC 2584 of 1999)

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J U D G M E N T

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1. The Appellant appeals against her conviction on one charge of Fighting in a Public Place contrary to Section 25 of the Public Order Ordinance, Cap. 245.

2. This Appellant was originally the 2nd Defendant in the case. The 1st Defendant, the other protagonist in the fight, had pleaded guilty before another court, was convicted and called as a witness for the prosecution at the trial of the Appellant.

3. The fighting arose from an altercation between the Appellant and PW1, who were hawkers in Yin Chong Street. There had been a long-standing dispute between them as to the use of a particular area between their two stalls. On the day of the incident, the Appellant complained that goods belonging to PW1's stall were blocking her area and she knocked them over. The fighting resulted from this incident. As a result of the altercation, the Appellant eventually went to hospital and reported the matter to the police, both she and PW1 were charged with Fighting in a Public Place.

4. There was a trial at which this Appellant was represented. All the matters that were put before the court today in great detail by Appellant were put before the court on behalf of the Appellant, through her lawyer, or by the Appellant giving her evidence.

5. The Magistrate, who was aware of the allegations against PW1 made by Appellant as to her being the major protagonist in the fight and also as to her attempts, allegedly, to stop a report being made to the police, found PW1 nevertheless credible in her account and accepted her evidence and the evidence of PW2, a woman who was in a stall some further distance away.

6. The Magistrate when considering Appellant's evidence noted that she admitted that there was an argument, but sought to portray herself as an entirely innocent victim in relation to the incident; the Magistrate did not accept that. He considered that Appellant's account lacked credibility and that given the nature of the long-running dispute between PW1 and Appellant he could not accept that she was the innocent victim she described herself as. The Magistrate made appropriate findings of fact, he found that there was a fight and he found that this Appellant was involved in it. He considered and rejected the issue of self-defence.

7. Prior to this appeal, I had read two letters placed before the court by the Appellant in which she sets out not only the incident subject of the charge, but many incidents going back some months or indeed years in respect of the dispute. Appellant has related to me this morning in greater detail matters about the incident for which she was charged. No matter of law arises in result of that material or on this appeal. The matter was an issue of fact which was before the Magistrate and he had the advantage of seeing and hearing the witnesses at trial.

8. There was nothing raised before me by the Appellant's letters, or by her account this morning which indicates that I can impose my view of the facts in place of the magistrate's view. This appeal is dismissed.