HKSAR v. LAM CHI ON

HCMA282/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.282 OF 2004

(ON APPEAL FROM TWCC3939 OF 2003)

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J U D G M E N T

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1. The appellant Lam Chi On was acquitted on a charge of common assault before a magistrate, but she was ordered to be bound over in the sum of $1,000 for one year to be of good behaviour. She now appeals against the order.

The prosecution case

2. On the night of 18 August 2003, PW1 to PW3 had drinks in a bar in Tsuen Wan. The appellant approached their table and had an argument with a girl called Carol.

3. Later, PW1 to PW3 left the bar and went to Castle Peak Road to get the bus. The appellant rushed up to them. PW1 said the appellant grabbed her bra from the front and they jostled each other and eventually falling to the ground. PW2 gave similar evidence and the three of them got into a protracted struggle and all three fell down. The appellant then called the police.

The defence case

4. The appellant gave evidence and said she approached Carol in the bar and Carol's boyfriend was abusive and she became frightened. Then Carol's group left the bar.

5. Later, she reached the outside of her residence and she was approached and attacked by PW1 to PW3. They also snatched her mobile phone and watch. She was hit around the head to cause her to fall and she was kicked.

6. A medical report of the appellant was admitted. It set out the extent of the appellant's injuries, which were consistent with her having been involved in a struggle.

Findings of the magistrate

7. The magistrate disbelieved the appellant. Her allegation of snatching of her property was never put to the prosecution witnesses despite extensive cross-examination by counsel. He found the appellant's assertion that she was approached by the prosecution witnesses outside her residence fabricated as the appellant and the prosecution witnesses did not know each other and they would not have known where she lived.

8. The magistrate was sure of the following facts :

(1) There was a confrontation and altercation between the appellant and the prosecution witnesses at the bus stop on Castle Peak Road.

(2) It was started by the appellant approaching the prosecution witnesses in an aggressive manner.

9. However, the magistrate could not be sure what happened after the altercation save that there was a fight and struggle. The prosecution witnesses accounts varied and the magistrate accepted that there was due to the fact that they had all been drinking and the appellant's approach was sudden and unexpected.

10. The magistrate was satisfied so that he was sure that the behaviour of the appellant brought about a breach of peace. He indicated to counsel that he was considering a binding over to prevent repetition of similar incidents. He invited counsel to address him. The case was briefly stood down for taking instructions. Upon resumption, counsel said the appellant was willing to be bound over.

Grounds of appeal

11. The appellant filed the general ground that the order was too severe. She further specified the followings :

(1) she made the report to the police at the critical moment;

(2) she was robbed of her property;

(3) she was injured in the incident;

(4) she was not advised of her right to contact anyone, including her family or lawyer when the charge was laid;

(5) the police did not record everything she said in response on the charge sheet; and

(6) she was forced to sign the charge sheet.

12. At the hearing of the appeal, she further submitted that :

(1) it was impossible for her alone to fight three persons; and

(2) the prosecution witnesses had an eye on her property but the police refused to search them upon request.

Consideration on the appeal

13. Save as to the form of the order, I am satisfied that the magistrate has acted properly and within power in making the order of bind over in accordance with Lau Wai Wo v. HKSAR [2004] 1 HKLRD 372 (CFA) :

(1) The appellant was properly before the magistrate on a charge of common assault and the magistrate has ancilliary jurisdiction under s.109I of the Criminal Procedure Ordinance (Cap.221) to order a binding over upon an acquittal.

(2) The weighing of the evidence is a matter within the province of the magistrate. He had noted the appellant's initial report to the police, her allegation of being snatched of her property, and the extent of her injuries upon medical evidence. There is evidence to support the finding he has made and a court exercising appellate jurisdiction will not lightly interfere.

(3) The facts found involved argument at a drinking place resulting in confrontation and altercation on the street followed by fighting and there is justifiable apprehension of breach of peace in public places in the future.

(4) The magistrate had duly observed procedural fairness by inviting submissions from counsel before making the order whereby counsel indicated consent by the appellant.

14. The only matter I wish to raise is the form of the order itself. The order made orally in court was that :

" In respect of this incident, I bind you over for one year in the sum of $1,000.

And the purpose of the bind-over is to make sure that you don't get involved in incidents and fights of this nature again in the next year. If you breach this understanding, you will forfeit the sum of $1,000."

And the magistrate perfected the wording in the Statement of Findings as follows :

"I bound the defendant over for one year to be of good behaviour in the sum of $1,000 not to get involved in incidents and fights of the kind before the court...."

15. However, in the Certificate of Order, it is simply stated that :

"... and it is adjudged that the defendant for her said offence be dismissed and ordered that she be bound over in the sum of $1,000 for one year to be of good behaviour."

16. According to the Court of Final Appeal in Lau Wai Wo, the wording of the order of to be of good behaviour without specifying the precise terms of the injunction is not satisfactory.

17. I shall dismiss the appeal, but I shall amend the terms of the certificate of order as follows :

"It is adjudged that the appellant be bound over in the sum of $1,000 for one year to be of good behaviour and to refrain from provoking and/or engaging in fighting in public."