HKSAR v. LAU HIN CHING

HCMA 564/2019

[2020] HKCFI 747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 564 OF 2019

(ON APPEAL FROM ESCC NO 1262 OF 2019)

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REASONS FOR JUDGMENT

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Introduction

1.  The appellant was found guilty after trial before Deputy Magistrate Albert Cheung on 28 August 2019, of a single charge of Fighting in a Public Place contrary to section 25 of the Public Order Ordinance, Cap 245 (“s 25”).  He received a sentence of seven days’ imprisonment suspended for 12 months.  By his notice of appeal, dated 30 August 2019, the appellant appeals that conviction on the grounds as outlined below.

The Prosecution Case

2.  The appellant was inside a public toilet and standing at the urinals when Ko Po-chuen (“Ko”) turned towards him and urinated in his direction.  The appellant splashed water from a plastic bottle in the direction of Ko, who then punched the appellant several times.  PW1 heard the struggle and upon investigation found the two men holding each other.  PW2 was called to investigate.  Upon arrest and caution the appellant reiterated the above events and admitted that he had retaliated when Ko had urinated upon him.

The Defence Case

3.  The appellant accepted he had splashed water upon Ko, who then started to assault the appellant by punching him.  He attempted to block the punches but was not entirely successful and was hit on the face.  His eyes were closed for part of the time.  When Ko stopped punching him, the appellant grabbed hold of Ko.  He had remained holding onto Ko at that time to ensure he did not get away.  He had been injured in the assault, had been dizzy, had not been aware that he had been arrested and cautioned and had not admitted to retaliating.  He had put up his left arm in order to defend himself from the blows of Ko.  Ko had hit him sufficiently hard to have fractured his hand.

The Grounds of Appeal

4.  In essence, the appellant complains that the Magistrate erred:

 (i)     in finding that the act of splashing water was an act of retaliation and therefore constituted an act of fighting; such action was not part of the prosecution case;

 (ii)     in finding the appellant had retaliated despite finding him to be an honest and credible witness;

 (iii)     in finding that an assault amounted to an act of fighting in law;

 (iv)     in failing to take into consideration the issue of self‑defence raised by the defendant, alternatively established upon the evidence before him; and

 (v)     in finding there was insufficient evidence from which the Magistrate could be satisfied beyond reasonable doubt that the defendant was not acting in self‑defence.

Accordingly, the conviction was unsafe and unsatisfactory.

The Law

5.  S25 states:

“Any person who takes part in an unlawful fight in a public place shall be guilty of an offence and shall be liable on summary conviction to a fine at level 2 and to imprisonment for 12 months.”

6.  It goes without saying that the Magistrate must be satisfied, as I must now be satisfied, that the appellant had:

 (i)     taken part;

 (ii)     in a fight;

 (iii)     which was unlawful; and

 (iv)     which took place in a public place.

7.  There is no question that the appellant was a party to an incident between himself and Ko and that it took place in a public place.  But did it amount to a fight?  The respondent has suggested a fight includes an element of violence.  I think that is perhaps too harsh a definition.  The term fight includes a multiplicity of situations.  In this case, there is no need to look otherwise than to the ordinary description of what amounts to a fight in common parlance.  This would include inter alia a brawl, struggle or clash.  On the appellant’s own case, that was what occurred after he splashed water at Ko for urinating in his direction because at that point Ko punched him.

8.  For my part, I cannot find that there was any brawl, struggle or clash at the point at which Ko urinated towards the appellant or at the point at which the appellant simply splashed water at Ko, without more.  The respondent relies upon the Magistrate’s finding that this act of splashing was in retaliation.  In that sense, Mr Daryanani suggests it is an act of violence or aggression; an invitation to fight.  I find that this was simply a reaction to being urinated upon and that a spray of tepid water, even if it hit Ko’s face should not be considered an act of violence.  In other circumstances, perhaps where the liquid is hot or the container is solid and also thrown, such an act may amount to an assault but the simple splashing of a small amount of water from a bottle in this situation does not.  There was no fight at this stage and there was no assault as there is no evidence to suggest there was an apprehension of fear of violence at that stage.  Indeed, I am sure the appellant would not have thrown the water if he had thought that Ko would punch him as a result and there was no evidence from Ko.

9.  Thereafter, Ko hit the appellant more than once. At this point, upon the actions of Ko, this became a brawl, struggle or clash, if the Court is satisfied that the appellant was also a party to it.  For, rather like the offence of conspiracy, a brawl, struggle or clash, requires more than one participant.  But unlike the offence of conspiracy, there may be only one participant with the requisite legal intent.  On his version of events, the appellant had no choice but to be a party to the struggle as he was the recipient of an actual assault evidenced by the punches.  He says he sought at all times to block the blows.  He denies ever hitting Ko.  Thereafter, when backed against the wall, he grabbed Ko in order to stop him leaving once PW1 appeared.  In this limited sense it could be said that he acted in self‑defence.

10.  The offence of fighting in a public place is not an absolute one.  The prosecution must show that the struggle between the two of them which ensued was unlawful and, more specifically, that the person charged was acting unlawfully.  It would be unlawful if both parties entered into the struggle with equal fervour, giving as good as they got.  However, the appellant would not be acting unlawfully if the participation of the appellant in the ensuing struggle amounted to no more than defensive blocking and/or some other actions which amounted to reasonable self‑defence when he says he grabbed hold of Ko: R v Wong Chi-keung [1987] 1 HKC 360.  In other words, he was not giving as good as he got.  Far from it, he was trying to avoid being hit and then trying to restrain Ko.

11.  It was for the appellant to raise the issue of self‑defence and for the prosecution to rebut it.  Alternatively, even if not raised by the defendant directly, where there is evidence to establish the possible defence of self‑defence, the Court has a duty to take this into account.  The act of defending himself from Ko’s punches is not an act of self‑defence, it is an act of self‑protection.  There was evidence of self‑defence in so far as he grabbed hold of Ko’s arms and did not let him go in order to stop him running away.  It was certainly alluded to in the closing submissions.  It was for the Magistrate, as it is for me, to make a finding upon it once it has been properly raised either by the defendant or upon the evidence.  He did not do so and in that way, he erred.  He did not do so because his analysis stopped at the point that he found the splashing amounted to an assault and (presumably although he does not say so directly) therefore a fight.  He did not put his mind to what happened thereafter.  He did not feel he needed to.

12.  However, this is a re‑hearing and I have done so.  In so doing, I have taken into account the Magistrate’s findings on credibility having heard the witnesses first hand.  He found the appellant to be an honest and credible witness.  The appellant’s evidence, which he accepted, was that a male at the urinals in a public toilet had turned and urinated in his direction.  The appellant had turned and splashed water towards the male in return who then punched him a number of times.  The appellant said he did not retaliate at any stage.  His earlier admission upon arrest that he had retaliated was not relied upon by the Magistrate for good reason.  It follows that when PW1 and PW2 saw the appellant and Ko holding each other, that stance, which showed Ko as the aggressor and the appellant pushed back against a basin, could have been one indicative of self‑defence rather than of aggression.

Conclusion

13.  The learned Magistrate erred in so far as he found that the splashing of water amounted to an assault and therefore an act of fighting.  Even if I agreed that there had been an assault, not all assaults are a fight.  They can be one‑sided.  He made no further findings as to what constituted such an act from the ensuing brawl.  He did not refer to it at all save to find that the appellant was dizzy from the beating he had received from Ko and he had noted this was the part of the incident which resulted in injury to both the appellant and Ko.  He further erred in not considering the issue of self‑defence and therefore did not satisfy himself beyond reasonable doubt that the appellant was not acting in reasonable self‑defence after the splashing had occurred, or indeed at the time of the splashing given that both actions involved liquid.  If he had not stopped his analysis at the point of splashing, I have no doubt that he could not but have failed to do so.  For my part, I cannot find any attempt by the prosecution at trial to seek to rebut the issue of self‑defence or to consider the unreasonableness of the splashing in response to the urinating.  Mr Daryanani urges the Court now to draw the inference that the appellant was also an aggressor because he did not avail himself of the opportunity to leave at the very beginning of the incident and that he acknowledged someone else had left because it was clear something was about to happen.  I am unable to draw that irresistible conclusion given the subsequent lack of aggression from the appellant.  There is a difference between spoiling for a fight and fighting, even so I do not find that the appellant was spoiling for a fight.  I find that the appellant did not assault Ko and did not participate in a fight with Ko when he was blocking the blows or when he sought to restrain Ko to stop him leaving the scene.  If any part of his actions could be said to amount to self‑defence, I am not persuaded beyond reasonable doubt that they were not acts of self‑defence.

14.  The appellant having been successful under his first and fifth grounds as outlined above in paragraph 4, there is no need to address the other matters raised.

15.  This conviction is unsafe and unsatisfactory. The appeal will be allowed.  The conviction is quashed and sentence set aside. There will be no order as to costs.