HKSAR v. TSE CHEUK CHIN

FAMC000021/2000

FAMC 21 OF 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 165 OF 2000)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1. The applicant was one of two defendants who appeared before the magistrate, Ms Amanda Woodcock, charged with fighting in a public place contrary to section 25 of the Public Order Ordinance, Cap 245. After trial, both were convicted and fined.

2. The conviction was largely based on the evidence of two eye-witnesses who were found by the magistrate to be independent and credible. The eye-witness who arrived first at the scene gave evidence that the two defendants had engaged in a brawl with each other and that the fight continued even after others had intervened to separate them physically. The witness testified that the applicant had exchanged blows with the other defendant, administering a blow using a broom handle on at least one occasion. The second eye-witness saw less of the incident but generally confirmed the first eye-witness' account. The magistrate also relied on medical reports which showed that both men had suffered injuries.

3. The applicant's evidence was to the effect that he had been knocked to the ground by an unknown third man, with the other defendant thereafter continuing the attack on him. He claimed that he had chased and grappled with the other defendant but had never struck him with his fists or with the broom handle. The magistrate accepted that a third man had initially been involved but otherwise rejected the applicant's evidence as incredible, taking into account the admitted fact that there was a history of bad blood between the defendants.

4. Deputy Judge Tong dismissed the applicant's appeal and also refused to certify any question as being of great and general importance or as involving a substantial and grave injustice, which is a requirement for appeals to this court under section 32 of the Hong Kong Court of Final Appeal Ordinance.

5. The applicant complains that the magistrate had failed to require the prosecution to secure and produce video-tape evidence from closed circuit television cameras in the vicinity.

6. No video tapes were sought by the investigating officers because they considered the available evidence of the eye-witnesses to be sufficient. As I have stated, the magistrate accepted this as she was entitled to. Although the applicant asserted before this committee that such tapes would have shown the incident, there was no evidence before the courts below that such cameras would have captured the relevant occurrences, nor was there any basis for thinking that any video tapes would have been of any assistance to the defence.

7. This court only entertains criminal appeals where a point of law of great and general importance or a grave and substantial injustice arises. There is no such point in the present case. Moreover, on the evidence, the complaint does not disclose any arguable appeal.

8. Accordingly, the applications for certification and for leave to appeal must be dismissed.

Representation: