HKSAR v. CHOW LEUNG WAI

HCMA465/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 465 OF 2008

(ON APPEAL FROM ESCC4957 OF 2007)

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J U D G M E N T

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1. The appellant (D2) appeals against his conviction on a charge of fighting in a public place, contrary to section 25 of the Public Order Ordinance, Cap. 245.

2. The appellant was jointly charged with Mr Trinidad Cezar Q (D1) who was also charged with one count of indecent assault of which he was acquitted.  The charge of fighting in a public place alleged that the appellant and D1, together with two males now in custody, had taken part in an unlawful fight outside the 7-11 Convenience Shop in Spring Garden Lane, Wanchai on 10 October 2007.

3. Three witnesses to the fighting were called by the prosecution, two of whom were associated with the appellant.  PW1, Miss Tsang Yu Ming was the girlfriend of the appellant and had been living with him for more than 10 years.  PW2, Mr Tsang Chun Chiu was a friend.

4. Their evidence was broadly similar.  On the evening in question, at about 11 p.m., they and the appellant had been walking along Spring Garden Lane.  PW1 (Miss Tsang) was walking ahead and the appellant and PW2 were walking behind her.  At this time, a Filipino, who they alleged was D1, and who was holding a paper cup and appeared to be drunk, was walking in the opposite direction.  When he walked past PW1, he raised his hand, patted PW1 on the chest and then continued to walk on.  PW1 had then pointed at the Filipino.  The appellant who was walking behind had told the Filipino that PW1 was his girlfriend and asked the Filipino what he had done with his hand.

5. The Filipino’s reaction had been to throw the cup he was holding at the appellant, splashing him with its contents.

6. According to PW1, the Filipino had then raised his other hand to the level of the appellant’s nose.  The appellant had inclined his head to one side and there had then been a struggle during which the appellant had sought to grab the Filipino’s hands.

7. PW2 did not see the Filipino try to punch the appellant but said that he saw the appellant move his head as if he was trying to avoid being punched.  The appellant had then thrown his arms around the Filipino and pushed him away and there was a struggle.  He said that the appellant had handed him his mobile phone and asked him to make a report to the police.

8. Both witnesses spoke of a struggle with both men rolling on the ground.  Both spoke of two other non-local men becoming involved.  PW1 said one of these two men had tried to pull the appellant’s arm while the other had hit the appellant’s back.  A woman had pulled one of these two men away whereupon both the two men had moved away.  PW1 said she had then told D1 that she had made a report to the police.  They had then awaited the arrival of the police.  Both PW1 and PW2 when asked in cross-examination by Mr Surman on behalf of the appellant, said that the appellant had been acting in self-defence.

9. PC1618 (PW3), who subsequently arrived at the scene, said that D1 appeared to have consumed a lot of alcohol as when he arrived at the scene D1 was holding a can of beer, his face was red and he smelled strongly of alcohol.

10. The third eyewitness to the events was Miss Ting Wai Lam (PW5), a cashier at the 7-11 store.  She said that D1 was one of a group of friends who had been in the store since about 8 p.m. that evening.  D1 had bought cans of beer on several occasions and on one occasion had spilt beer onto the shop floor.  He had left the shop just before the incident. 

11. Her observation of the incident was from the cashier’s counter of the store.  She said that she was too frightened to go outside but that she was only about six to seven feet away.

12. She said that she saw D1, whom she described as an Indian or Pakistani, and the Chinese man (who must have been the appellant) fighting, exchanging “fists and kicks” outside the store.  She did not know how the fight had started.  The fighting lasted about a minute.  The fighting had stopped.  D1 had then returned to the shop and asked two of his friends to go outside.  The fighting had then continued between D1 and the appellant and one Indian or Pakistani male.  But although fierce, the fighting was less severe than before.  She said that there was a group of seven to eight people, some of whom were mediators asking them not to fight.  She said that although D1 was the only person on his side whereas there were two on the other side, he appeared to be strong.  She said that they were exchanging hook shots.

13. Neither D1 nor the appellant gave evidence.

14. The learned magistrate acquitted D1 of indecent assault because he found that he could not be sure that D1 was the man who touched PW1’s breasts.  This was because PW1 and PW2 said that the man who did so was wearing shorts.  PW3 said that D1 was wearing long jeans at the time of his arrest.

15. In so far as the charge of fighting in a public place (Charge 2) was concerned, the learned magistrate said this :

“   Regarding Charge 2, I take the view that PW1 and PW2 are likely to be bias.  In other words, their evidence has a strong tendency to be favourable to D2 for very obvious reasons.  Furthermore, the quality of their identification evidence in relation to D1 also cast doubt on their overall credibility.  I attach no weight to their evidence for Charge 2. …”

16. He went on to say that he accepted the evidence of Miss Ting without reservation and continued :

“   As a juror, I have no doubt in my mind that at the material time, D1, D2 and at least one other non-Chinese male were fighting.  Mr. Surman has raised the defence of self-defence on behalf of D2.  In my view, when the first segment of fighting ended, either D1 or D2 could have left the scene and the matter would most probably have ended there.  However, D1 went inside the store to summon his friends and D2 remained outside the store.  In other words, neither of them had the intention to withdraw themselves.  On this basis, I find as a fact that no party was acting in self-defence, most certainly not D1.  I also note that the injuries sustained by D1 were serious and were clearly more serious than D2’s.  I find that D1’s injuries could only have resulted from the fighting described by Miss Ting.  I further find that D1’s injuries could have only been inflicted by D2 or resulted from his fighting against D2.  Hence, if D2 was in any way acting in self-defence, the degree of force he applied was beyond reasonable, thereby rendering the fight unlawful.”

17. The learned magistrate did not base his finding that the appellant had committed the offence of fighting in a public place upon what had occurred at the start of the incident.  Clearly he could not do so because PW5 did not see how the incident had started, and so there was nothing to gainsay the evidence PW1 and PW2 that it had started with an indecent assault on PW1 and that upon the matter being taken up with D1 he had thrown a cup of beer at the appellant and had at least attempted to strike the appellant about the head.  Even though the learned magistrate may have said that he attached no weight to the evidence of PW1 and PW2 in so far as Charge 2 was concerned, he was obvious from his statement that he could not “be sure that D1 was the man who touched PW1’s breasts” that he at least accepted their evidence that someone had done so.  He therefore could not exclude the possibility that the incident had started with an attack upon the appellant by D1.

18. The magistrate based his conclusion that the appellant was not acting in self-defence upon the evidence of PW5 that there had come a point at which the struggle between D1 and the appellant had temporarily stopped and D1 had entered the 7-11 store and called upon his friends to come outside.  It was on this basis that he concluded that the appellant had no intention to withdraw and therefore thereafter could not have been acting in self-defence.  This would have been a justifiable conclusion for the magistrate to reach if he had been sure that the appellant had been aware that D1 was entering the store to summon assistance and would return to resume the struggle but had nonetheless remained outside the store.  However, there was no evidence upon which such a finding could be made.  There was no evidence as to the circumstances surrounding this break in the struggle or its duration.  I note that PW1 referred to two men she referred to as South Asians “coming out” and joining the struggle but had not referred to there being a break in the struggle between D1 and the appellant. 

19. Assuming PW5’s evidence about there being a break in the struggle when D1 had entered the store to be correct, there was nothing to suggest that the appellant might not have concluded that D1 had decided against further violence, and had therefore decided to wait outside with PW1 and PW2 perhaps until the arrival of the police.  The resumption of violence by D1 and the other men might have been unexpected by the appellant.

20. The language used by the magistrate after he said that he had concluded from the fact that D1 had entered the store and the appellant remained outside that neither of them had the intention to withdraw themselves (i.e. “On this basis, I find as a fact that no party was acting in self-defence, most certainly not D1” (my emphasis)) suggests that he might not have been as certain about the appellant as he was about D1.  His words, later in his Statement of Findings : “Hence, if D2 was in any way acting in self-defence, the degree of force he applied was beyond reasonable, thereby rendering the fight unlawful” further suggests that it might not solely have been from the fact that the appellant remained outside the store when D1 entered to summon assistance that he concluded that the appellant was not acting in self-defence, but that factor coupled with a disproportionate use of force by the appellant.

21. The learned magistrate’s findings that the appellant had used disproportionate force was based upon his finding that the injuries sustained by D1 “were serious and were clearly more serious than” the appellant’s.  The leaned magistrate did not indicate the source of the evidence which had led him to this conclusion.

22. In so far as the appellant was concerned, there was evidence from a medical report admitted as Exh. P3 as part of the admitted facts that the appellant had a haematoma on the left side of his head and redness of the skin on the right side of his neck and arm.

23. The medical report on D1, while admitted by D1’s lawyer as part of the admitted facts, had not been admitted by the appellant’s counsel.  It was therefore inadmissible against the appellant.

24. While there was in addition evidence from PW1 that D1’s nose was bleeding and two photographs of D1 were admitted as Exh. P7 showing him with a bandage above and below his left eye, I doubt that from this evidence alone the magistrate was able to conclude that D1’s injuries were “serious”.  There seems a strong possibility that he relied upon the medical report on D1’s condition which was not admissible against the appellant.

25. It does not follow from the possibility that the magistrate might have relied upon inadmissible evidence in reaching his conclusion that the appeal must inevitably be allowed. 

26. An appeal to the Court of First Instance of the High Court takes the form of a rehearing on the papers, but bearing in mind that this court cannot rely upon inadmissible evidence.

27. I have carefully considered whether by reference to the photographs (Exh. P7) and the evidence that D1’s nose was bleeding, I could come to the conclusion that D1 was using disproportionate force.  Bearing in mind the evidence from PW3 of D1’s apparent intoxication, I do not consider it would be safe to infer that the appellant had necessarily used disproportionate force.

28. For the above reasons, I allow the appeal against conviction.

29. In my view, this is not a case that warrants an order for retrial.  This matter has been hanging over the appellant’s head for a year.  The magistrate, even on conviction, considered that it merely warranted a $1,000 fine.