HKSAR v. CHEUNG KWOK LEUNG

[English Translation – 英譯本]

HCMA 17/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 17 OF 2007

(ON APPEAL FROM TWCC NO. 2606 OF 2006)

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial on one count of “fighting in a public place”, contrary to section 25 of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong, and was fined $2,500. The particulars of the offence alleged that on 4 September 2006 the appellant and one Wong Chi Keung (黃志強) (hereinafter referred to as “Wong”) took part in an unlawful fight in a public place, namely the temporary parking area near the entrance to Container Terminal 6, Container Port Road South, Kwai Chung, New Territories, Hong Kong. The appellant appealed against conviction.

2. After the hearing, I allowed the appeal, quashed the conviction and set aside the fine. I now set out the reasons for my decision.

Prosecution case

3. Prosecution called two witnesses to give evidence. They were Yip Chun Fai (葉俊輝), PW1, and police constable 5436, PW2. The medical reports pertaining to Wong and the appellant (Prosecution Exhibits P1 & P2) were adduced in court pursuant to section 65B of the Criminal Procedure Ordinance.

4. PW1 worked as a security guard at the temporary carpark in Kwai Chung Container Terminal. On the day in question and while at work, he suddenly heard a colleague, surnamed Lee, say that some people were fighting in the traffic lane under the canopy. When he ran to the traffic lane under the canopy, he saw Wong, another colleague of his, and the appellant fighting and grappling with each other. They fisted at each other for about one and a half minute. Seeing this, PW1 and his colleague Lee separated the two of them immediately. PW1 said that he was not sure who struck first and that the appellant had said loudly at the scene that he had been assaulted by Wong.

5. Regarding the description of “grappling with each other”, PW1 said by that he meant that the two had bodily contact but they were not grabbing hold of each other. He said both of them had swung their fists at each other but he did not think that they had kicked each other.

6. Under cross-examination, PW1 agreed that Wong was at that time holding a fluorescent baton for directing traffic, which was one and a half to two feet long. PW1 said that he did not see Wong attack the appellant with the baton. As to whether the appellant swung his fist so as to hit Wong or to fend off Wong’s attack, PW1 said that he was not sure because everything happened as quickly as a flash.

7. PW2 later arrived at the scene. Having inquired of Wong and the appellant about the incident, he arrested the appellant for the offence of “fighting in a public place”. PW2 saw that the appellant was bleeding in the left corner of his mouth while Wong complained of pain in the right side of his chest. Both the appellant and Wong asked for medical treatment and were eventually sent to Princess Margaret Hospital for treatment.

The defence case

8. The appellant said that he was driving a container truck on carriageway No. 6 along Container Port Road South at the material time. Meanwhile, his truck suddenly “stalled” and was parked on the traffic lane. The appellant asked Wong if he could maintain order and control traffic at carriageway No. 6. Wong, however, sulkily replied that the office had not instructed him to do so. As the appellant was planning to go to the front of the truck, he suddenly heard Wong swear at his back. He then approached Wong to reason with him. Wong suddenly swung his right fist toward the left side of his face. He took two steps back and managed to avoid the blow.

9. Wong then dashed forward and chased to hit the appellant with his right hand which was carrying the fluorescent baton. The appellant at that time did not run but stood at the original spot and they were about 4 feet apart. Wong succeeded in hitting the appellant at the corner of his mouth only on the third attempt as the appellant managed to dodge his first two attempts. Thereafter, Wong continued rushing forward to chase and hit him, while he continued backing away from carriageway No. 6 to carriageway No. 4, trying to avoid him. The appellant had only pushed Wong at his chest with both hands, but Wong did not fall down nor stop moving forward to chase and hit him. The appellant claimed that he had never fought back nor rushed forward to fist at Wong.

10. The appellant claimed that he heard many people shout “stop hitting” at the time. Later, around 7 to 10 security guards came on the scene, and they formed a “wall” to separate him from Wong. The appellant stood behind the “wall” and Wong outside it. Wong still carried the baton in his hand to hit him and he continued to dodge. The appellant claimed that PW1 had lied and was biased in favour of Wong, possibly because the witness was Wong’s colleague. As regards his leg injury, the appellant guessed that he was kicked by Wong on his leg and it got swollen when he was standing behind the “wall”.

11. The appellant had suffered from blood vessel blockage in both legs for more than 10 years and had to wear compression stockings usually. His movements were comparatively slow.

12. The appellant agreed that he was not on guard when he went forward to Wong to ask him why he swore at him. Nor did he anticipate that Wong would hit him.

Grounds of appeal

13. Mr. Lam, Counsel for the appellant, raised the following two grounds of appeal in support of his submission that the conviction was unsafe:

(1)           The magistrate had wrongly understood the evidence of PW1 and wrongly found that the acts of the appellant at the material time were “acts of boxing”.

(2)           The finding of the magistrate that the appellant was not acting in self-defence was unsafe and unsatisfactory when neither the circumstances surrounding the start of the fight nor the course of it could be ascertained.

14. Mr. Lam submitted that the following points could be seen from the summary of the prosecution case by the magistrate as set out in paragraphs 4 to 7 (pp. 13-14) of her Statement of Findings:

(1)           It could not be ascertained how and why the fight started;

(2)           “Wong was holding a fluorescent baton for directing traffic, which was one and a half to two feet long, in his hand” during the fight; and

(3)      “As to whether the appellant swung his fist so as to hit Wong or to fend off Wong, PW1 said that he was not sure since everything happened as quickly as a flash”.

15. Mr. Lam submitted that the magistrate had not elaborated further on what she meant by “acts of boxing” either in her statement of findings or her oral verdict delivered in court. On an ordinary understanding of its usage and meaning, “boxing” could mean that in a fight or boxing match, one did not care that he was being hit by the opponent’s fist but single-purposely swung one’s fist in order to hit the opponent. This term clearly assumed or included a description of the mental state of the boxer. However, there was nothing in the testimony or evidence as a whole to support such a conclusion of the magistrate.

16. Mr. Lam also submitted that whether “acts of boxing” would invariably go beyond the limits of self-defence must depend on the course of the fight. The appellant did not use any weapon at that time but the other party was holding a fluorescent baton. That might induce fear in the appellant, causing him to react more forcefully.

17. Mr. Lam contended that from Exhibit P1, it could be seen that there was red mark and tenderness on the right chest of Wong. The appellant also admitted that he had pushed Wong on his chest, and it could be seen from the evidence of the appellant and exhibit P2 that the appellant was in fact injured as a result of being attacked. Therefore, the “self-defence” argument raised by the appellant did constitute an issue in the case.

18. Mr. Lam submitted that whether judging from the overall evidence of the case or the analysis of the magistrate, the prosecution has failed to prove beyond reasonable doubt that the appellant’s acts were not self-defence.

Respondent’s response

19. Mr. Joseph Wong, Senior Government Counsel for the respondent, replied that the magistrate had clearly explained in her oral verdict and Statement of Findings the reason why she had accepted the two prosecution witnesses as honest and reliable witnesses. She had also pointed out and explained why she had rejected the appellant’s evidence.

20. Mr. Wong stated that according to PW1’s evidence, the appellant and Wong “fisted at each other” for about one and a half minute. The witness did not see Wong ever attacking the appellant with the traffic baton. The medical report was also consistent with this.

21. Mr. Wong argued that the magistrate had already clearly mentioned the acts of the appellant and Wong fisting at each other when she mentioned “acts of boxing” in her oral verdict. She had also recited the course of their fisting at each other before finding that the appellant had gone beyond the limits of “self-defence”. The magistrate had taken all the evidence into consideration, including the appellant’s claim that he had never fought back and had not rushed forward to fist at Wong, before making her findings on the facts.

22. Mr. Wong submitted that the magistrate had considered the appellant’s defence that he was acting in “self-defence” at the scene and she had not erred in rejecting his evidence.

Judgment

23. An appeal brought under the Magistrates Ordinance is by way of “rehearing” on the evidence before the magistrate (supplemented by any further evidence admitted by the appellate court): see Chou Shih Bin v. HKSAR, FACC 11/2004. In my judgment, as far as the facts are concerned, the appellate court shall have regard to the advantage enjoyed by the magistrate of having heard and seen the witness giving evidence whereas the appellate court can only rely on transcripts. Whether a witness was credible and reliable is purely a matter within the judgment of the magistrate. However, the conviction will be unsafe if the finding of fact made by the magistrate was unreasonable, illogical or inherently improbable, or if the magistrate, in dealing with the evidence, had quoted the evidence wrongly or had omitted or failed to consider or analyze material matters.

24. PW1 was the only eye witness in this case. He said in examination-in-chief that the appellant and Wong were fighting and “grappling with each other”, and “fisted at each other”. He, however, agreed under cross-examination that Wong was holding a fluorescent baton for directing traffic, which was one and a half to two feet long, at that time. Then, under what circumstances did Wong and the appellant “fist at each other”? Given PW1 said that he did not see Wong ever attacking the appellant with the traffic baton, what was Wong’s hand, which was holding the baton, doing when he and the appellant “fisted at each other”? It is common sense that if two persons were fighting and one of them was holding a traffic baton, that person would have no reason for not using it. PW1 did not know who struck first but he also categorically pointed out that the appellant had said loudly at the scene that he had been hit by Wong.

25. I was told that the baton was made of hard plastics with a fluorescent light inside. Upon comparison, Wong who was holding the baton was in a more favourable position than the appellant who was barehanded and had no “weapon”.

26. Although the appellant might have exaggerated the attack by Wong on him, the burden of proof is on the prosecution. PW1 frankly admitted that he did not know if the appellant swung his fist so as to hit Wong or to fend off Wong. The prosecution failed to prove beyond all reasonable doubt that the appellant was “fighting” with Wong and not acting in self-defence. For the above reasons, the conviction is in my judgment unsafe.

27. In passing, regarding the submission on “boxing” (搏拳), the magistrate indeed had not explained what she meant by “boxing”. It is not clear whether she was referring to a fight with fists. As PW1 said that the appellant and Wong “fisted at each other”, it would be better, at least in order to avoid any unnecessary speculation or dispute, for the magistrate to adopt the wordings of the witness or commonly known wordings.