HKSAR v. CHAN MING LEONG AND ANOTHER

DCCC 704/2021

[2022] HKDC 847

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 704 OF 2021

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REASONS FOR VERDICT

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1.  D1 is facing two charges and D2 is facing four charges. 

2.  Charge 1 is against D2 for common assault. 

Charge 2 is against D1 for common assault.

Charge 3 is against D2 for criminal damage.

Charge 4 is against D2 for assault occasioning actual bodily harm.

Charge 5 is against D1 for wounding with intent.

Charge 6 is against D2 for common assault.

3.  Both defendants pleaded not guilty to all charges.

4.  P3 is the Admitted Facts admitted by prosecution and defence pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221. 

(1)  As a result of an incident on 29 March 2020 outside House No 43A, Lot 43 Tai Long Wan Tsuen, Shek Pik, Lantau Island, New Territories, Hong Kong (“the scene”)  Alexander Robert Medd attended North Lantau Hospital at about 1901 hours the same day. Mr Medd was examined by Dr Cheuk Ching, Medical Officer at the Accident & Emergency Department. Dr Cheuk’s finding of Mr Medd’s injuries were as follows:-

(a)  He had sustained head, upper back and right leg injuries.

(b)  There was tenderness over head, upper back and right leg.

(c)  There was abrasion wound over right leg and laceration wound over head.

(d)  X-ray did not show fracture of skull or upper back bones.

(e)  Suture of head laceration was performed.

Mr Medd was discharged from hospital at about 2017 hours on the same day. Three Medical Reports are produced as Exhibit P9A, 9B and 9C.

(2)  PW1’s mobile phone was damaged during the incident. The said phone is produced as Exhibit P2. The said phone was in a mobile phone case at the time of the incident which is produced as Exhibit P3.

(3)  The blue Polo T-shirt and yellow shorts worn by PW1 at the time of the incident are produced as Exhibit P4 and P5 respectively.

(4)  During the incident on 29 March 2020 at the scene, a series of photographs and video clips were captured by PW2, George Thomas Medd, and were provided to the police via a USB flash drive. The USB flash drive is produced as Exhibit P6. The relevant contents of the USB flash drive is burnt onto a DVD disc which is produced as Exhibit P6A.

(5)  During the incident on 29 March 2020 at the scene, a video clip was captured by PW1, Alexander Robert Medd, on his phone and was provided to the police via a DVD disc. The DVD disc is produced as Exhibit P7. The contents of P6 and P7 are produced as an album, P8. The index of P8 is an accurate description of the contents of the various photographs and screen shots.

(6)  At about 1815 hours on 29 March 2020, Chan Ming Leong (D1)  was arrested at the scene by PC24718, Cheung Ka Hung. After being cautioned D1 voluntarily said “I was responsible for pulling him away”. At 2013 hours on the same day in the interview room of Lantau South Police Station, a post-record statement was taken from D1 by PC24718 in the presence of D1’s lawyer Tai Kam Cheung. This post-record statement is produced as Exhibit P10.

(7)  At about 1908 hours on 29 March 2020, Hui Chi Ming (D2)  was arrested by PC19581 Chan Chi Wa at North Lantau Hospital.

5.  Prosecution called four witnesses to give evidence. 

6.  PW1 is Alexander Robert Medd, the alleged victim in this case. He testified that he and his wife owned the property known as Lot 43, Tai Long Wan Tsuen, Wang Pui Road, Lantau, and they have been living there for the past 10 years.  

The incident

7.  On 29 March 2020 the day in question, at about 4:15 pm, he was at home sitting out in the garden with his son who had just flown in and was on quarantine.  D1, D2 and another man were walking up using their mobile phone to video record his property.  He knew D1 and D2.  D2 has bought properties in the village since five years ago.  He had dealings with them in the past.  They had been over and crossed onto his property in the past.  He was afraid and intimidated (by their presence)  and so he used his mobile phone to film these three men.  Whilst he was filming, D2 picked up two stones and D1 picked up one stone.  D1 came up very close to him in an aggressive manner with a stone in his hand.  He felt threatened.  His filming ended abruptly because D2 grabbed his mobile phone.  As a result, his mobile phone dropped onto the ground.  D2 then lunged out of the fence, grabbed him and, as a result, both of them fell down.  He confirmed P7 is the video he took. 

P8 Photo Album (photos and screenshots from P6 and P7)

8.  Counsel on fiat ran through all 45 photos in this album with PW1.  PW1 gave evidence as follows:-

(a)  Photo 1 depicts the broken gate-post. D2 was standing there. The red object (on the concrete path close to D2’s feet)  was his mobile phone cover. The other red object at the bottom of this photo was his mobile phone. D2 took the mobile phone and smashed it. He did not see D2 smashing it but he heard the sound.

(b)  Photo 2 depicts D1, the one in red T-shirt. The other man in black was also involved by grabbing his arm when he was on the ground and assaulted his son.

(c)  Photo 3 depicts the moment he was on one knee. The one facing him was D1 with his right hand up in the air and a stone in his hand. The man on his right was the man in black. D2 was hidden under by his knees. He identified Exhibit P1 being part of the stone used by D1 to hit his head twice and his body once.

(d)  Photo 4 depicts D1 holding a stone he picked up. D1 had the stone in his hand all this time until he used it to hit him with.

(e)  Photo 5 depicts D1 with the stone in his hand just before the lunge.

(f)  Photo 6 depicts D1 with a stone in one hand and the mobile phone in the other hand.

(g)  Photo 7 depicts the moment his mobile phone dropping when he was on the other side of the fence.

(h)  Photo 8 depicts the man in black came to grab his son, reaching for his son’s mobile phone.

(i)  Photo 9 depicts the man in black and D2 standing there when the event was over.

(j)  Photo 10 depicts a fragment of the stone used to hit him.

(k)  Photo 11 depicts D2’s hand reaching for his mobile phone after the event.

(l)  Photo 12 and 13 depicts D2 and the man in black.

(m)  Photo 14 depicts D2 and his mobile phone and just about to throw it onto the ground.

(n)  Photo 15 to 27 depict they were all waiting for the police to arrive.

(o)  Photo 27 depicts the moment D2 was picking up two stones, one in each hand.

(p)  Photo 28 depicts D2 looked as if he was throwing the stone in his hand.

(q)  Photo 29 depicts D2 holding a stone in his hand.

(r)  Photos 30 to 31 depict the three coming up towards him.

(s)  Photos 32 to 33 depict D1 was about to hit him in a threatening and aggressive manner. He felt D1 was going to assault him.

(t)  Photos 34 to 35 depict him and D1 holding each other.

(u)  Photo 36 depicts D2 and the man in black.

(v)  Photos 37 to 38 depict the moment he was on the ground still holding D1. At some stage D1 hit his head and body with a stone.

(w)  Photos 39 to 40 depict his son holding his mobile phone and he was still on the ground.

(x)  Photo 41 depicts the moment he was on his knees getting up. D2 was giving instructions to D1 and the man in black.

(y)  Photos 42 to 44 depict the situation after he got up. He had not realised his head was cut.

(z)  Photo 45 depicts the police had arrived.

9.  The video produced and marked Exhibit P6A was played in court.

P12 photo album

10.  Counsel on fiat ran through the 17 photos in this photo album with PW1.  Photo (1)  to (6)  are photos of the scene taken by DPC17107 on 29 March 2020.  PW1 confirmed the broken gate as depicted by those photographs was not broken before this incident.  Photos (7)  to (17)  are photos of PW1’s injuries taken by DPC20733 on 3 April 2020.  He confirmed all the injuries as depicted were sustained in this incident, the injuries at his knee and abrasions below were caused when he fell down for the second time.  The two wounds on his head were sutured, two stitches at one and one stitch at the other.

11.  PW1 confirmed neither he nor his son threatened or acted aggressively towards any of the three men nor had any weapon in their hand in the entire incident. 

D2’s cross-examination

12.  Mr Harris, counsel for D2, suggested to PW1 that:-

(1)  Throughout the episode he was the aggressor;

(2)  If anyone acted in violence it was reasonable self-defence because he started it all; and

(3)  He completely lost control of himself.

He also suggested to PW1 that:-

(4)  He was frustrated and angry with what he reckoned to be illegal construction work carried out by D2’s construction workers, and so on the day in question, when he saw D2 and D1 together with another man walking along the footpath outside his property, he acted aggressively towards D2 and D1. Other than looking for trouble he had no reason to approach those men.

(5)  He was walking towards D2 in a hostile manner filming them with his mobile phone in one hand and holding a garden hoe or pitchfork in his other hand to threaten those men and there was a time he raised the pitchfork in the air above his right shoulder and directed it at D2 and the other two men. It is for that reason D2 picked up two stones.

(6)  When he and D2 were close at the fence area his mobile phone still in his left hand, he grabbed D2’s right arm with his right hand across the top of the fence with considerable force, swung D2 around, then pulled D2 towards him over the fence causing him to fall onto the ground and broke the fence in so doing.

(7)  This is why the broken fence caved into his garden.

(8)  Having pulled D2 onto the ground he put his body weight on D2 and held him onto the ground.

(9)  He was the one proactively violent and anything the other side did was reactive to his violence.

(10)  At no stage did D2 smash his mobile phone on the ground as he alleged.

(11)  He had been selective in the video provided to the police and the videos were not complete.

PW1 disagrees with the above defence case.

13.  He agrees with Mr Harris that:-

(1)  He met D2’s architect, Mr Wong, about a week after the incident.

(2)  He showed him some of his videos on his laptop.

(3)  He told Mr Wong he would pursue this case to the end.

(4)  He told Mr Wong to make sure he collected any fees due from D2 because he will see D2 going to jail.

(5)  He disliked D2 a lot.

(6)  It is possible for him to have told Mr Wong that he did not want D2 as his neighbour.

(7)  He did liaise with the Department of Justice and learnt this case will be tried summarily in the Magistracy Court and a trial date had been set down.

(8)  He strongly disagreed with the decision to try this case in the Magistrates Court and made that known to the Department of Justice for he wanted justice be served.

14.  D2 produced and marked as defence Exhibit D2-10 a set of emails exchanged between PW1 and the Department of Justice between 25 May 2021 and 30 July 2021.  A transcript of the prosecution’s video evidence prepared by the defence and approved by prosecution is provided to the court marked MFI-D2A. 

D1’s cross-examination

15.  Mr Robert Pang for D1 challenged PW1’s evidence:-

(1)  About the distance he walked from his deckchair to confront the three men.

(2)  D1 was not filming his property.

(3)  About him being scared and intimated by the three men who were outside his land not talking to him and no one picking up any stone and yet he walked up to them.

(4)  About D2 lunging at him across the fence and brought him down.

(5)  The story he gave in his first witness statement is different to what he told the court. Mr Pang quoted the following passages:-

“After we had dispute for about 2 minutes the fat-built Hui Chi-ming attacked me and smashed my red I-phone I was holding onto the ground. I wanted to have my I-phone back. I lost balance and fell onto the ground. I knelt on the ground on my right knee. My upper body wasn’t on the ground. I struggled with Hui who grabbed me. Hui and I grabbed each other tightly. Chan and the other male approached me. Chan had picked up a stone of hand size and hit me on my head four times”.(paragraph 7 from that witness statement)

“I want to add at that time Mr Hui Chi-ming pushed my right hand with his right hand and slapped my phone onto the ground”.(paragraph 3 from P1’s witness statement taken on 15 June 2020)

“Hui first used his right hand to grab my right hand then Hui used both hands to grab my arm and push me down on the ground causing me to kneel down on the ground on both knees”.

“He rushed to me by breaking the fence and pushed me down onto the ground”.(from PW1’s witness statement taken on 26 July 2021)

16.  Mr Pang suggested to PW1:-

(1)  Because he was on top of D2, D1 and the man in black were trying to pull D2 out.

(2)  The video does not show D1 pulling him away from D2 is because it does not contain the entirety of the event.

(3)  The lacerations to his head were not caused by a stone but possibly caused when he and D2 fell down and his head hit the fence post.

(4)  D1 did not have the stone in his hand at all times. He had dropped it at some point and picked it up again before he used it to hit him.

PW1 disagrees with the defence case.

17.  In re-examination, PW1 said his knee was injured when he fell down with D2.  When he stood up to stop D1 from hitting him, D2 attacked him and he fell down for the second time.

18.  PW2 is PW1’s son.  At the material time he was 19 years old, a university student studying in the UK.  He is the alleged victim under charge 6. 

His account of the incident

19.  It was sometime after 4 pm when he and his father were sitting out in the garden, he noticed D1, D2 and another man appeared at the end of the garden taking pictures or videos.  His father got up from his chair, walked towards those men and started filming them.  When he noticed those men were getting more aggressive in their demeanour, he got up and walked towards them.  He saw those three men moving towards his father, and saw D1 raised his hand.  He heard his father shouting at D1 “Throw at me, I dare you”. At that instant, he took out his mobile phone and started filming what was happening.

20.  He saw D2 lunged at his father by stepping into their garden, got hold of his father and as a result his father fell back on his knees.  At that point of time, he saw D1 also lunged at his father and bashed his father’s head with a piece of concrete or stone in his hand for two to three times and also on his neck and back.  His father grabbed D1’s hand to stop him and managed to get up from the ground, moved to the side of the wall whilst still entangling with D1 (P8(34 to 35)  depicts).  At that time D2 picked up his father’s mobile phone or had it in his hand and threw it down onto the concrete path. The mobile phone bounced off from the concrete path onto the grass lawn (as P8A(a)  to (y)  depicts), so he picked it up and moved to one side.

21.  D2 approached him and slapped his father’s mobile phone off from his left hand.  He then turned to look at his father.  His father had fallen onto the ground with D1 underneath the fence holding D1’s right wrist.  D1 bit his father’s hand when his father refused to let go.  D1 eventually wrestled his way out.  His father also got up. He could see his father was bleeding from the back of his head with blood dripping down his neck.  His father told the three men not to leave until the police came.

22.  When police came he told the police that he had video-recorded what happened and the police wanted them as evidence.  So he copied the video and photographs from his mobile phone onto a USB and gave it to the police. Exhibit P6A is the complete video he took.

D1’s cross-examination

23.  Mr Pang suggested to PW2 that:-

(1)  The three men were leaving after his father started shouting and D2 had already walked past his father but his father grabbed and pulled him down then pinned him down. D1 and the third man tried to separate the two by pulling his father away. When they were unsuccessful, D1 used a stone to hit his father but not on the head.

(2)  Video 1 does not show the three men were walking towards his father.

(3)  D1 was taking photos or filming along the direction of the stream only.

(4)  The video that he gave to the police is not the complete video but edited. There was a longer version which has the event prior to what was played in court.

PW2 disagrees with the above defence case.

D2’s cross-examination

24.  Mr Harris suggest to PW2 that:-

(1)  When his father moved from the deck chair to the fence to confront the three men, he was filming them with his mobile phone in his left hand. In answer to this PW2 said his father cannot fetch anything without using both hands because he has flab.

(2)  At some stage before confronting the three men his father was holding a garden tool to confront them.

(3)  It came a time his father was waving the garden tool at the three men in a threatening manner and that is why D2 picked up the stones.

(4)  D2 put the stone down shortly after because his father lowered the tool and no longer posing a threat.

(5)  When the three men were walking away along the path towards the arch, his father was very close to the fence. When D2 raised his right arm to shield himself from being filmed by his father, his father used his right hand to grab D2’s right wrist, swung him around and pulled him across the fence and that is how the fence was broken.

(6)  D2 landed hard on his left side and his father fell on top of him.

(7)  His father’s mobile phone was damaged either before or during the struggle and it fell onto the ground during the struggle.

(8)  At no time D2 tried to snatch his father’s phone from his hand.

PW2 disagrees with the above defence case.

25.  PW3 is PC24718.  He learnt from the police console about a fighting case occurred at Tai Long Wan Tsuen.  He attended the scene at 5.07. There he saw PW1 and his family members, D1, D2 and their people.  There was a visible wound on PW1’s head and was still bleeding.  Two Chinese males were arrested, both denied having attacked PW1.  He was shown Exhibit D2(10)  a photograph which depicts a pitchfork, he claimed he had never seen this photograph before.  He also confirmed there was no complaint from anyone that they were threatened by someone holding such a pitchfork, and had there been such a complaint, the police would have made enquiries about it and seized it as exhibit.  He confirmed the pitchfork (shown in the photo)  was not seized as an exhibit.

D1’s cross-examination

26.  PW3 agrees:-

(1)  A stone was seized as an exhibit because PW1 said it was the stone used to hit his head.

(2)  PW1 did not mention the stone was part of a larger stone.

(3)  When seizing the stone he did examine it and did not see any blood on it.

(4)  He has no impression of the man who appears at the left side of the photo (defence Exhibit D2(9))  and nobody complained to him he was assaulted by that person or tried to snatch his mobile phone, otherwise he would have remembered such a person.

D2’s cross-examination

27.  Mr Harris suggested to him and he agreed:-

(1)  Of all the dealings he had with PW1, PW1 was agitated.

(2)  D2 was calm and cooperative.

28.  PW4 is PC19581.  At 4.59 pm he received instructions from the police console to proceed to Tai Long Wan Tsuen.  He and his colleagues attended the scene.  Subsequently he arrested D2 in the hospital. 

29.  Under D2’s cross-examination, he confirmed he was assigned to deal with D2 at the scene.  He cannot remember if D2 was talking to his solicitor when he arrived.  D2 did complain to him at an early stage that his left shoulder was hurting and for that reason the police made arrangements for D2 to be sent to the hospital. 

30.  Both D1 and D2 have no halfway submission.  I ruled there is a prima facie case for both defendants to answer on each charge.

Defence case

31.  D1 elected not to give evidence but called two witnesses who are common defence witnesses for himself and D2. 

DW1 - Mr Wong Wai, Philip

32.  He is called to testify basically about two matters:-

(1)  PW1 was unhappy about D2’s construction projects in the village; and

(2)  The video PW1 showed him was about 3 minutes long.

33.  He is a director of an engineering consultancy company.  D2 is a client of his company and he has known D2 for some 10 years.  He came to know D1 at the end of the 2019 as he was a party of the construction team in a construction project at Tai Long Wan Tsuen, Lantau Island.  His involvement in D2’s project was:-

(1)  To lease land from the Lands Department.

(2)  The planning of overall construction; and

(3)  Act as a bridge to liaise with the villagers. Meetings were convened so that villagers could give their feedback to the construction plan.

34.  A meeting was held on 9 February 2020 and the proposal/planning for the village, defence Exhibit D2-12 was distributed to attendees who were mainly foreigners.  Throughout the meeting, PW1 remained standing when he could sit down at the conference table interrupting from time to time, expressing his personal opinions, in particular on two aspects:-

(1)  The destruction of the natural environment which was a nuisance to him; and

(2)  The enclosing walls (at D2’s property)  were illegal and blocked his view. PW1 wanted that enclosing wall be taken down as soon as possible.

35.  The enclosing wall was a temporary structure intended to protect D2’s property and prevent outsiders from entering and getting injured inside the construction site. 

36.  He met PW1 again on 2 April 2020.  PW1 approached him and showed him the injuries at the back of his head and played a video clip with his notebook computer to show how he got hurt.  He had the impression that the playing time of the clip was over 3 minutes.  PW1 controlled the playback speed by what he described as using a combination of normal speed, fast, slow, jumpy (stop and start manner)  and dragging (dragging the time bar).  The video clip started from PW1 walking out from his house to the lawn, approaching D2 and D1 who were outside the fence.  PW1 was holding a mobile phone at the direction of D2 and D1 as if he was filming them and the latter did not want to be filmed. When the three of them got close to each other, a struggle ensued between them, perhaps there was contact between PW1 and D2 with their hands and arms and both were on the ground as the clip played on.  He used the words “perhaps” because PW1 played that part in fast speed, he could not see that part clearly.  He was unable to see who touched who first because the contact was simultaneous.  The part which PW1 wanted to show him how he fell and got hurt was played at fast speed.

37.  On that occasion, apart from showing the video, PW1 also said to him “Philip, you should receive your fees for the construction work as soon as possible”.  When he asked why, PW1 said “Mr Hui will soon go to jail”.  He confirmed D1-1/Video 2 was in the clip shown to him by PW1 but the clip played for him by PW1 was longer.  The clip played in court does not show the part of PW1 walking out from his house towards D2 and D1.

D2’s cross-examination

38.  He does not agree with the suggestion that:-

(1)  PW1 was difficult to deal with at the village meeting, although in the meeting PW1 did from time to time interrupt him and was clearly against the construction work. PW1 was not grumpy nor aggressive nor made it clear he would do anything to block the construction work.

(2)  He was not aware of PW1 making a lot of complaints to the government authorities. He agrees at the third meeting PW1 made it clear he disliked D2 intensely and did not want D2 as his neighbour.

Prosecution’s cross-examination

39.  He agrees he and his company was representing D2 to liaise with the villagers as public relations.  He also agrees that at the meeting with the villagers, some were happy with the project and some were not.  He agrees PW1 consistently complained about the enclosing wall and wanted the wall to be taken down. 

40.  He has no idea nor in the position to say whether D2 was unhappy with the complaints but D2 had in fact required him or his company to satisfy each and every villager.  D2 did not express if he was upset, angry or unhappy with PW1’s complaints but did tell him to take down the enclosing wall as soon as possible. 

41.  Regarding the video that he saw, he was told by PW1 that it was shot by his son.  He confirms from the video clip he saw PW1 coming out from his house walking down to confront the defendants.  He agrees apart from the mobile phone, he saw nothing else in PW1’s hands.  Mr Raffell showed him defence Exhibit D2-10 which depicts a garden tool, and asked if he saw that garden tool in PW1’s hand, at first he answered “Probably not”, when the question was repeated, he answered he did not.  He also confirmed (apart from PW1)  no one else showed him any video or photograph of this incident.

42.  He was shown defence Exhibit D2-9.  He agrees the broken part of the fence leaned inward towards PW1’s garden was a result of external force towards the garden. 

43.  When he was queried, if it was PW1’s intention to show him how he got injured on his head and he was unable to see clearly, then why did he not ask PW1 to play back properly.  He answered “I did not”.  He added when the video was played PW1 told him someone hit him on the head but he did not see that on the video and yet he did not ask any question.

44.  He disagrees he gave his evidence selectively in favour of D2 or his memory that the video was 3 minutes long could be faulty.  As to how he could say it was 3 minutes, he explained after PW1 played the video he checked the time and noted that 15 to 20 minutes had passed so he reckoned the play time lasted for 3 minutes or so.  After all three videos were played in court, DW1 said none of these were shown to him before.

45.  In re-examination Mr Pang asked him to clarify his inconsistent evidence why he said under cross-examination the video shown to him by PW1 was not the same video shown to him during his examination-in-chief.  He explained from the video he was shown by PW1 he could see PW1 leaving the house and walking towards the defendants.  He is certain there was a scene PW1 had D2 pinned down on the ground.  When Mr Pang asked him why he did not ask PW1 to show him the part how he got injured, his explanation is for he could see PW1 and D2 were on the ground and D1 was pulling PW1 away, so he did not ask.

PW2 - Mr Wong To (the man in black in the video)

His evidence-in-chief

46.  He was employed by D2’s company for approximately a year from April 2019 to 3 April 2020.  He served as the D2’s personal assistant.  On the day of the incident he went to Tai Long Wan, Lantau Island with D2. They met up with D1 who was the main contractor of the construction work and then he learnt from D1 that the doorway of the house was damaged and the drainage was blocked by someone.  They then went to inspect the blockage of the drainage.  

47.  As they were walking along the concrete path, a foreigner (PW1)  approached them, scolding them aloud in English and pointed at them.  He could not understand what PW1 was saying.  They ignored PW1 and carried on what they were there for.  PW1 kept following them, yelling and scolding them and raised his mobile phone at them in one hand and held up something like a fork with his other hand.  At that time D2 was closest to PW1, seeing what PW1 was doing, he picked up a stone.  D1 followed suit and also picked up a stone.  When PW1 put down the fork, D2 put down the stone and so did D1.

48.  When their inspection was done and on their way back to D2’s house, PW1 again lifted up the fork.  D1 then picked up a stone.  PW1 put down the fork.  They continued walking forward, D2 was in front followed by D1 and he was the last.  Suddenly he heard somebody yelled and it was D2.  Before he heard the yelling he was looking at the other direction.  He turned to look at once and saw PW1 had D2 pinned down on the ground already.  So he went over at once tried to pull PW1 away together with D1. He recalls D1 using his hand or arm to smack PW1’s body.  It was in a chaos, he could not recall which part of PW1 was smacked by D1 and did not see whether D1 was using his bare hand or something held in his hand when smacking PW1.  PW1 then let go of D2 and turned to struggle with D1.

49.  He helped D2 to get up.  D2 told him his hand or arm was injured and painful.   D2 then searched for his mobile phone and picked up a mobile phone case from the ground, probably not D2’s.  At that moment another foreigner (PW2)  dashing over at their direction with a mobile phone in his hand.  D2 handed the mobile phone cover to PW2 but the latter did not take it but continued filming, scolding and yelling at the same time.  D2 put the mobile phone case down on the ground then went over to check on D1 and PW1.  At no time he or D2 had any physical contact with PW2.  The police arrived shortly.  The police only recorded his identity card number without making any enquiries from him.

D2’s cross-examination

50.  Under cross-examination he confirmed:-

(1)  Defence Exhibit D2-14 depicts PW1 pinning D2 on the ground and he was at that time trying to pull PW1 away.

(2)  He did not see how the struggle started for when he turned to look, D2 was already on the ground with PW1 on top of him and the fence had already broken.

(3)  D2 did ask him to call the police and ambulance to take him to hospital.

(4)  He did not see D2 throwing PW1’s mobile phone onto the ground with force. He did not see D2 trying to grab PW2’s mobile phone.

Prosecution’s cross-examination

51.  Under cross-examination, DW2 said he was sacked by D2 who gave him one month’s wages in lieu of notice, so he did not ask why he was sacked. He is now working for a management company which has no connection with D2 whatsoever. 

52.  He agrees:-

(1)  He thought D2 was triggered to pick up a stone by PW1 holding a fork-like object.

(2)  He never mentioned to police about the foreigner was holding a fork-like object.

(3)  PW1 was just holding up the fork-like object inside his garden without doing anything aggressively with it.

(4)  D1 was very loyal to D2 and so was he as his employee.

(5)  Having viewed the video in court, he agrees D1 was hitting PW1 on the head with a rock.

D2’s case

53.  D2 elected to give evidence and called one character witness.

D2’s evidence-in-chief

54.  Defendant was born in China in 1964.  He is now 58 years old, married with a big family.  He has a clear record.  He received his tertiary education in the Mainland, a university graduate and received doctorate from the university in Mainland and Russia over 20 years ago.  He came to Hong Kong in 1992 and became a permanent resident in 1995.  He was already a businessman before he came to Hong Kong with business in motor vehicle, property investment and development.  He also engaged in the oil and gas business over 20 years ago. He is a director of many companies and some are listed companies.  He was awarded Gold Bauhinia Star by the Government of Hong Kong SAR and appointed as a Justice of Peace.  His achievements are set out comprehensively by his two character witnesses, Dr Tsoi Wing Sin and Dr Tai Tak Fung in Exhibit D2-16 and D2-17.

55.  In 2019, he purchased a number of properties in Tai Long Wan Tsuen and also rented other lots.  Defence Exhibit D2-11A is a map of the village, the lots shaded in blue are the properties he purchased, the lots shaded in pink are lots he rented.  He acquired those properties for his family’s holiday home.  There were construction works to improve his properties starting at the end of 2019.  In addition, he engaged consultants to improve the village.  D2-12 is the proposal prepared by his consultant in accordance with his instructions.

56.  PW1 was his neighbour.  He was unaware of PW1’s complaints about his construction works until his constructor told him at the later stage.  He had met PW1 twice by chance before this incident but never spoke to him nor discussed about his complaints for it was his contractor’s responsibility.  His English is not good and does not know much English. 

57.  On the day before this incident, D1 reported to him that the gate was damaged by his ‘gweilo’ neighbour and the outlet of the drainage in his garden was blocked with mud.  D1 asked him to go over to check and see what to do with it. 

The incident

58.  After they met up with D1, the three of them proceeded to inspect the situation.  He found the metal gate was damaged and laid on the side as depicted in photo D2-8.  Then they went to check the drainage at the end of the concrete path.  PW1 upon seeing them got up from the chair near the doorway of his house at once and came over at a quick pace.  As he was approaching, he yelled at them and gestured them to leave.  He did not understand what PW1 was yelling or what he meant.  He could tell PW1 was unfriendly. 

59.  When they reached the end of the concrete path they looked at the drainage and D1 was taking photographs of the drainage.  By that time PW1 got closer.  PW1 was very agitated as one could tell by his panting aloud.  PW1 used one hand to film them with his mobile phone, and picked up a fork which was leaning against the fence with his right hand, waving it up and down and sideways as if he was throwing it at him.  He was frightened by PW1 and out of instinct he picked up two stones for self-protection.  When PW1 dropped his hand but still holding the fork, he put the stones down.  He wanted to leave as soon as possible.  He had no intention to get into a fight with PW1 for his size.

60.  He was on his way back to his house and had walked past PW1, but PW1 followed him and kept on filming him. So he fended off PW1’s phone which was too close to his head.  He did not lunge at PW1 but rather it was PW1 who seemed mad pulled his hand like wrestling and swung him towards the enclosing wall.  By then PW1 had put down the fork.  As a result of being swung around for 180 degrees, he broke the fence and fell onto the concrete path.  PW1 then pinned him down with his knees and body.  He got help and managed to get back on his feet. He then saw PW1 was wrestling with D1. 

61.  He did not smash PW1’s mobile phone.

62.  As to the allegations that he tried to snatch PW2’s mobile phone, it was absolutely impossible because he was too far from PW2 and he had no motive to do so.

63.  He called and spoke to his solicitor, Mr Chan before the police arrived.  After he related the circumstances, Mr Chan said he will arrange a lawyer to come over as soon as possible and advised him not to say anything before the lawyer arrived. That is why he did not say anything to the police about the garden hoe held and waved about by PW1 and the police did not ask him either.

Prosecution’s cross-examination

64.  Under cross-examination PW2 agrees PW1 was meddlesome before this incident but it had nothing to do with him because the trouble about the construction work was to be handled by his contractor.   On the day of this incident he was just conducting an inspection as he would inspect his property regularly. 

65.  About the swearing, he claims he was not swearing at PW2 but was talking to himself for he was feeling painful all over his body and dizzy.  He disagrees the reason he picked up the stones was because he was annoyed with PW1 filming him.  He disagrees in his demonstration to the court he raised two hands to show how PW1 was holding his mobile phone to film.  PW1 was holding his mobile phone (with one hand)  to film and pick up the fork by the side of the fence (with the other hand).  He actually did not pay attention to PW1 until PW1 started waving the fork to and fro and that was when he reacted.

66.  If so, he was queried why D1 did not take a photo of PW1 holding a fork. His explanation is D1 had stopped shooting.  He was also quried if his lawyer advised him not to say anything, then why did he make a statement to police under caution as stated in paragraph 7 of the Admitted Facts, P13.  His explanation is because his lawyer had not arrived and without prior knowledge he was arrested for damaging the phone of another.  He added he did not tell the police PW1 was holding a pitchfork because the police did not ask him about that and also he did not have the opportunity to do so.  Mr Raffell then pointed out the police had in the post-recorded statement asked him if he has anything to add.  D2 answered his lawyer had advised him not to answer.  He disagreed the reason why no one mentioned about the pitchfork at the scene to the police was because it had nothing to do with the case.  He also explained he did not point out the pitchfork to the police because there were many other exhibits besides the pitchfork and also he was feeling painful. 

67.  He denies he had pushed aside PW1’s mobile phone,  brushed it aside, or fended it off.  He disagrees he lunged at PW1 first and because of the forward momentum the fence broke.  He disagrees that the incident started when he picked up the stones and threatened to throw at PW1.  He disagrees he smashed PW1’s mobile phone.

Re-examination

68.  Mr Harris asked D2 to confirm by referring to the defence Exhibit D2-11B that PW1’s garden exceeded the official boundary. 

69.  D2-1 is the further facts admitted by D2 and prosecution pursuant to section 65C of the Criminal Procedure Ordinance concerning the injuries sustained by D2. 

70.  D2 produced the following exhibits:-

D2-2 - Referral letter of Lantau Hospital

D2-3 - D2’s medical report dated 29 March 2020

D2-4 - Physiotherapy referral letter

D2-5 - Memo from Dr T K Chan dated 2 April 2020

D2-6 - Examination report by Dr Peter K T Hui dated 30 March 2020

D2-7 - Photo of metal gate outside House 63 and 63A (undamaged)

D2-8 - Photo of metal gate outside House 63 and 63A (damaged)

D2-9 - Photo of wooden fence (damaged)

D2-10 - Photo of the garden hose

D2-11 - Map

D2-11A - Map (with highlights)  by Lands Department

D2-11B - Map (sketch with yellow footpath)

D2-11C - Map (sketch with marking of deck chairs;

D2-12 - Conserve and Revitalise Proposal Year 2020 for Tai Long Wan Tsuen

D2-13 - Summary of email communications between PW1 and DOJ

D2-14 - Photos of garden hoe (nearby the broken fence)

D2-15 - Photo of PW2

D2-16 - Letter dated 10 May 2022 from Dr Tsoi Wing Sing re D2’s character

D2-17 - Letter dated 7 May 2022 from Dr Tai Tak Fung re D2’s character

71.  DW3, Dr Tsoi Wing Sin is called as defendant’s character witness.

72.  Above is the defence case for D1 and D2. 

73.  All parties submitted their written final submissions. 

Basic legal principles

74.  The burden of proof is on the prosecution, the standard of proof must be beyond all reasonable doubt.  An accused has nothing to prove.  He has the legal right to remain silent.  No adverse inference should be drawn against him for not giving evidence.  The standard of proof for an accused is on the balance of probabilities.  I bear in mind the Barrada Directions for D2 has a clear record.  I reminded myself the criteria of self-defence by referring to the following passages in Archbold 2021 Edition:-

“Death caused to another in self-defence is excusable and shall not be punished provided the killing is justified. When conduct is justified it is approved of or at least tolerated by the community and the law. Therefore a defendant acting reasonably in self-defence of himself or another or a police officer using reasonable force to effect an arrest to protect members of the public may be justified in doing so.

There is no rule of law that a man must wait until they are struck before striking in self-defence. If another strikes at them they are entitled to get their blow in first if it is reasonably necessary to do so in self-defence. And the mere fact that the defendant was the initial aggressor does not to itself render self-defence unavailable as a defence to what they do in an ensuing violence. In R v Rashford [2006] CLR 547 the Court of Appeal held ‘We would agree that the mere fact that the defendant goes somewhere in order to exact revenge from the victim does not itself rule out the possibility that in any violence that ensues self-defence is necessarily not reasonable as a ‘defence’. It must depend on the circumstances. It is a common ground only acts in self-defence if in all the circumstances he honestly believed that it is necessary for him to defend himself and that amountof force that he uses is reasonable’”. (paragraph 20-65)

“Where the ‘defence’ of self-defence is raised, then it is for the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. Before the issue can be left to the jury there must be some evidence, whether from the defence or the prosecution which, if accepted could raise a prima facie case of self-defence. If there is such evidence it should be left to the jury even when the plea has not been raised by the defence”. (Paragraph 20-71.)

It is relatively settled law that the test of whether or not a person acted in self-defence is partly objective and partly subjective. The jury must decide whether the defendant actually and honestly believed that they were compelled to act as they did in order to defend themselves, and then must decide whether, in all the circumstances the response was reasonable.

The essence of the ‘defence’ of self-defence and defence of others is the honestly held belief of the defendant as to the fact (but not the law: see Jones [2007] AC 137 per Lord Bingham at [24] and Lord Hoffman at [72]).

75.  With the above in mind I turn to examine the evidence. 

76.  D1 is facing one count of common assault under charge 2 and wounding with intent under charge 5. 

77.  Prosecution submits these two charges against D1 are borne out beyond any doubt by the testimony of PW1 and PW2 and the video recording taken by these two produced as prosecution Exhibit P6(video 1)  and P7(video 2).

78.  Mr Pang submits it is undisputed that on 29 March 2020 afternoon an incident involved PW1, D1 and D2 occurred outside PW1’s house.  The main issue is how the incident happened.  It is also common ground that video 2 does not show how the incident started or how PW1 and D2 fell onto the ground.  In addition to the videos, the factual matrix of the case depends heavily on the accounts of the witnesses and therefore the credibility of witnesses is crucial in this case.   Mr Pang submits:-

(a)  PW1 is neither a credible nor reliable witness. He sets out his analysis of PW1’s evidence under paragraph 16 to 21 in his final submission.

(b)  PW2’s evidence is inherently improbable and inconsistent with PW1’s evidence and the video evidence. He sets out his analysis of PW2’s evidence under paragraphs 22 to 23 in his final submission.

(c)  No issue as to the credibility or reliability of the evidence of PW3 and PW4.

(d)  The evidence given by the two defence witnesses, ie DW1 and DW2, as well as evidence of D2 is credible and reliable. Not only the videos do not show the complete sequence of events, such evidence depicts a version of events which is clearly contradictory to PW1 and PW2’s account.

79.  Mr Pang further submits the prosecution has failed to prove all the elements of common assault under charge 2 beyond reasonable doubt for (a)  PW1 was not in fear and did not have any apprehension of immediate unlawful personal violence and (b) D1 was acting in self-defence in reaction to PW1 holding up a garden pitchfork. 

80.  Regarding the charge for wounding with intent, Mr Pang submits the prosecution’s evidence on how the incident started and happened is internally inconsistent and inherently improbable.  PW1 was the aggressor who followed and dragged D2, swung him round, broke the fence and pinned him down on the ground.  D1 acted reasonably in trying to get PW1 off D2.  It is reasonable that in a moment of unexpected chaos D1 felt it necessary to pick up a rock and hit PW1 to defend D2.  The fence posts where the incident happened had sharp metal edges as depicted in the photographs and the broken fences had sharp corners.  The possibility that PW1 was injured by these structures in the course of the struggle cannot be ruled out.

81.  D2 faces four charges, namely common assault under charge 1, criminal damage under charge 3, assault occasioning actual bodily harm under charge 4 and common assault under charge 5.  Prosecution submits the allegation of common assault under charge 1 against D2 is borne out beyond any reasonable doubt by the testimony of PW1, PW2 and the video evidence exhibits, P6 and P7. D2 picked up two stones or rocks and mimed as if he was throwing them at PW1. PW1 testified he felt threatened by such action.

82.  Regarding charge 3 for criminal damage, prosecution submits there is no dispute that PW1’s mobile phone was damaged.  PW2 clearly testified that it was D2 who committed this offence.

83.  Regarding charge 4 for assault occasioning actual bodily harm, prosecution submits the clear evidence of PW1 is that he was filming D1, D2 and DW2.  D2 lunged at him taken PW1 by surprise.  D2, perhaps, was trying to grab PW1’s cell phone or deflect it from being used to film him, as he said to the police, caused PW1 to fall and suffer injury to his knee and minor injuries on other parts of his body.

84.  Regarding charge 6 for common assault, prosecution submits D2 was obviously annoyed and angry with both PW1 and PW2 for filming him (or them)  hence the swearing outburst and tried to slap PW2’s mobile phone out of his hand. PW2 felt the threat of immediate violence and he was battered by D2.

85.  Mr Harris for D2 submits:-

(a)  The prosecution has failed to prove all key elements of the four charges beyond reasonable doubt.

(b)  D2 is of impeccable good character and has a clear record.

(c)  The prosecution has failed to establish to the requisite standard how and why the skirmish between D2 and PW1 took place on 29 March 2020.

(d)  As regards D2 and PW1, the prosecution has failed to prove who was the initial aggressor. The court cannot rule out as a real possibility that it was PW1 who first grappled with D2 and swung D2 from left to right, pulled him across the fence causing the fence to break.

(e)  Based on video 2 of D1-1, given there was grappling between D2 and PW1, it is inherently unlikely that D2 would have attacked PW1.

(f)  Even if D2 had attacked PW1, which is vigorously denied, he was acting in reasonable self-defence to protect himself from danger. D2 applied minimal and commensurate force at the material time.

(g)  In relation to the alleged common assault on PW2, the prosecution has failed to establish how any assault took place. The alleged assault never took place and there is insufficient evidence to prove how PW1’s phone was damaged.

Court Analysis

A. Video evidence

86.  The four video footages with sound provided with an objective view of what happened at different stages of this incident.  One can see from video 1 and 2 how the incident started and became physical between the two parties.  In the course of deliberating the verdict, I reviewed these video footages repeatedly.  Set out below is my observation of video 1 and 2.  There is no need to set out any details of video 3 and 4 for these two footages show the aftermath of the incident and nothing of significance.

87.  Video 1 was taken by PW1 with his mobile phone with sound.  The duration of this video is 17 seconds.

(1)  At the start of the video, D1, D2, DW2 were standing at the end of the concrete path. D1 was holding a phone in front of his face as if he was filming something. D2 was standing next to him on his left facing the same direction as D1 and DW2 was about 4 feet behind D2 looking at PW1 presumably. No one uttered anything at this stage. Certainly there was no shouting by PW1.

(2)  From 00:02 to 00:04, it can be heard PW1 was panting. At 00:03 to 00:04, D2 bent down and picked up two pieces of stone, one in each hand from the ground, straightened up his upper body and acted as if he was going to throw the piece of stone in his right hand at PW1. D2 then lowered both hands down with the stones still in his hand. It can be heard PW1 saying “Throw it honestly, you do want to throw that, don’t you”.

(3)  Between 00:04 to 00:06, D2 dropped the stones onto the ground and started walking away from the camera with his eyes still fixed on the camera. At the same time D1 was walking to the same spot where D2 picked up the stones.

(4)  Between 00:06 to 00:08, D2 was walking on. D1 bent down and picked up a piece of stone from the ground with his right hand. DW2 was watching D1 at that juncture.

(5)  PW1’s camera was fixed on D1 from then on. At 00:09, D1 with a piece of stone in his right hand quickened his pace behind D2 and got near to the camera (or PW1), raised his right hand high above his head, clenched his teeth as if he was going to throw the stone in his right hand at PW1 or hit PW1 with it. At that juncture, PW1 said “I wouldn’t, I wouldn’t coz I am going to video you throwing it”. At 00:13, PW1 said “Guess what, if you want”. DW2 was then behind D1 watching. At 00:14, I can see D2 had stopped walking and was in front of D1 with his eyes fixed on PW1 or his camera. At 00:15, PW1 said “Keep going, come on, just try”, then the filming stopped abruptly. Just before the filming stopped, the checker shirt worn by D2 appeared right in front of the camera.

88.  Video 2 was taken by PW2 with his mobile phone.  The duration of this video is about 15 seconds. 

(1)  At the start at 00:01, it can be heard PW2 yelling “Oi, get off our property”. At this juncture PW1 was already on top of D2 facing downwards with his left knee on the ground.

(2)  At 00:01 to 00:02, while PW1 was still on top of D2, PW2 used his left hand to pull PW1’s right hand, and D1 was hitting PW1 with an object.

(3)  At 00:03 to 00:04, PW1 got up and used both hands to grab D1 and swung him against the enclosing wall. D1 fell down followed by PW1.

(4)  At 00:05, it can be heard D2 swearing.

(5)  At 00:06, PW1 was yelling “Oi, fuck off, corona, fuck off, corona, corona”.

(6)  From 00:09, D2 held up a red phone case and handing it over PW2.

(7)  At 00:11, D2 said “Okay”.

(8)  At 00:13, PW2 yelled “Fuck off”, D2 said “Okay”.

89.  MFI-D2A is a transcript of the prosecution video evidence.  A copy is attached herewith for reference.  To assist the court for easier reference, the parties rearranged the sequence of the photos in the photo album, P8 (Book 2).  P8A is the rearranged photo album. 

Finding of the video evidence

90.  I am satisfied what was captured on the video is what actually happened at the scene.  Such evidence is solid and undeniable.

D1

91.  Now I turn to consider the overall evidence against D1.  For charge 2, defence submit PW1 is not a credible nor reliable witness.  Despite all the criticisms made against PW1, I find PW1’s evidence as far as charge 2 is concerned is credible and reliable for his evidence is wholly supported by video evidence ie Video 1.  I would not repeat the details of my observation of this footage for I have already set out in the preceding paragraph saves to add the following: when D1 walked up so close to confront PW1 who obviously was still filming with the camera fixed on D1, the look D1 put on was unmistakably aggressive and fierce.  PW1 testified he felt threatened at the time.  In my view, what was captured on the video is so clear and indisputable that by what D1 did and how he behaved at the time undoubtedly amount to common assault on PW1.

92.  I turn to consider whether or not D1 was acting in self-defence. It is the defence case that PW1 was holding a pitchfork with his right hand whilst he carried on filming the defendants with a mobile phone in his left hand.  It is not in dispute that there is a pitchfork on the side of the broken fence (see D2-9).  For the following reasons I do not accept defence’s contentions:-

(1)  The pitchfork is a garden tool. It being left in the garden is nothing odd.

(2)  DW1’s evidence contradicts the defence case for he did not see PW1 holding a fork at any time on the video.

(3)  If PW1 was holding such a deadly weapon, waving it up and down and sideways intended to threaten the three men, I would have thought in normal course of event PW1’s movement would not be slight, his body would move along with the momentum. However I do not see any matching vibration of the camera on the video.

(4)  Simply looking at the three photos (A)  to (D)  of P8A, apart from D2’s reaction in photo A, both D1 and DW2 seem undisturbed and not a bit worried. Their calmness in my view do not fit into the situation of having someone threatening them with a deadly weapon like a madman.

(5)  Neither D1 nor D2 nor DW2 complained or even mentioned to the police about being threatened by PW1.

(6)  My conclusion is D1 was not acting in self defence.

93.  For charge 5, the prosecution case against D1 is when PW1 and D2 were still on the ground, D1 used a stone he held in his hand to hit PW1 on the head and body a number of times.  The evidence in support of this charge includes the evidence of PW1, PW2, video evidence and medical findings of PW1’s injuries covered by the medical reports.

94.  I repeat here, despite all the criticisms made against PW1, I find PW1’s evidence as far as charge 5 is concerned is credible and reliable for his allegations are wholly supported by the video evidence, that is Video 2.  Details of my observation of this footage has already been set out in the preceding paragraph, so I will not repeat again.  In my view, what was captured on the video is un-mistakenly clear and indisputable,  D1 did bash PW1 on the head and upper back with a stone held in his hand.

95.  Mr Pang submits (a)  as evidenced from the video as well as PW1 agreeing that D1 and DW2 were of much smaller built; (b)  PW2 tried to pull DW1 away in vain; (c)  The incident happened in a matter of a few seconds and chaotic, the reasonableness of D1’s acts must be considered.  Taking into account the situation at the time, it is reasonable that in a moment of unexpected chaos D1 found it necessary to pick up the stone to hit PW1 to defend D2.  Whilst it is not in dispute that D1 did used a rock to hit PW1, the injuries sustained by PW1 were relatively minor.  Even if, which is denied, D1 hit PW1’s head with a rock, the degree of force and hence the reasonableness of such force would not have been great.

96.  Mr Pang further submits it is not in dispute that PW1 did suffer a wound on the head, nevertheless, the evidence to support the wound was caused by the stone that D1 used to hit PW1 is far from satisfactory.  Contrary to PW1’s evidence, PW3 did not notice any blood stain on the stone.  PW1 did not notice the cut on his head until he was told by his son.  The fence post where the incident happened had sharp metal edges and the broken fences had sharp corners as depicted in the photographs.  The possibility that PW1 was injured by these structures in the course of the struggle cannot be ruled out.

97.  I considered all the evidence relevant to this charge carefully. In law, self-defence covers the situation of protecting another or property. First of all, Video 2 does not depict how PW1 and D2 ended up on the ground. Photo P8-3 is the start of the Video 2.  It depicts PW1 had one knee on the ground and was on top of D2 who was on the ground.  DW2 was the one on the right side of PW1 trying to pull PW1 away.  D1 was in front of PW1 with his right hand raised above his head.  D1 was holding an object, admittedly a stone, in his right hand.  From the video footage, I can see very clearly D1 used the stone in his right hand to hit the upper part of PW1’s body repeatedly until PW1 turned to him and then the two started pulling each other.  By then D2 had got back on his feet.  After playing this video repeatedly, I could not hear D2 yelling in pain or at all.  Also I do not see PW1 had in any way assaulted D2 apart from perhaps pinning D2 down on the ground with his hands. In other words, D2 was not in grave danger.  I accept D1 was trying to help D2 and PW1 was much bigger in built but I fail to see any justification for D1 using a stone to hit PW1’s upper body repeatedly.  He could have joined force with DW2 to pull PW1 away from D2.  In my view, his attack on PW1 was totally unwarranted and unproportional in the circumstances and the force was excessive.

98.  I have examined the stone which is produced as P1.  It is a very hard piece of stone with sharp edges.  I have no doubt when D1 held such a stone in his hand he must have known using such a stone as a weapon to hit another person, especially on the head, could cause very serious injuries.  On the video I can see how D1 attacked PW1.  At the very start of the footage I can see very clearly D1 raised his right hand high in the air and swung at the back of PW1’s head.  As PW1 was getting up, D1 continued to hit PW1 repeatedly on his upper body until he was grabbed and pushed away by PW1.  I believe D1’s intention was to hurt PW1 badly in order to get D2 free.  PW1 was lucky not to have sustained much more serious injuries than he actually did.

99.  According to the Exhibits P9A and 9B the medical reports on PW1, he sustained head, upper back and right leg injury.  There was tenderness over his head, upper back and right leg abrasion wound over right leg and laceration wound over head.  Suture of head laceration performed. 

100.  P12(7 to 17)  are photographs of PW1’s injuries taken by police on 4 April 2020.  Photograph (7)  depicts two wounds at the occiput of PW1’s head. In my view, the wounds are no doubt serious. 

101.  My finding is the video clearly captured D1’s attack on PW1 including the moment he was hitting PW1’s head with a stone.  I do not accept D1’s contention that PW1 could possibly be injured by the sharp edges of the broken fences during the course of the struggle.  I have no doubt whatsoever the laceration wounds on PW1’s head were inflicted by D1.

102.  Now I turn to consider the evidence against D2.

Charge 1

103.  The prosecution’s case against D2 is he picked up two pieces of stone, one in with each hand, drew his right hand back and mimed throwing a stone at PW1.  In response, PW1 said to D2 “Throw it honestly, you do want to throw it, don’t you”.  D2 then dropped both stones without throwing them and walked on.  The evidence in support of this charge include PW1’s evidence and video evidence.

104.  It is captured on Video 1 taken by PW1, as he was filming those three men outside his premises, D2 suddenly bent down, picked up two stones one in each hand then turned to face the direction of PW1’s camera, pulled his right arm backwards with a piece of stone in hand as if he was going to throw it at PW1.  He then dropped two stones on the ground.  PW1’s voice can be heard saying “Throw it, honestly, you want to throw it, don’t you, I won’t, I won’t coz I’m going to video you throwing it”.  By what PW1 said it is very clear to me he did there and then apprehend immediate and personal violence by what D2 threatened to do to him.

105.  Regarding the defence of self-defence, I adopt the same reasoning as I did when I rejected D1’s defence in the preceding paragraph (92).

Charge 3

106.  The prosecution’s case is D2 grabbed PW1’s right hand and caused PW1’s mobile phone to fall onto the ground.  It is part of the admitted facts that the phone was damaged during the incident.  The evidence in support of this charge includes the evidence of PW1, PW2, video evidence and PW1’s mobile phone produced as exhibit.

107.  Video 2 was taken by PW2.  It depicts PW1 and D2 grappling on the ground.  DW2 was inside the fence, looked as if he was pulling PW1’s arm and D1 was standing in front of PW1 attacking PW1.  PW1 got back on his feet and started grappling with D1 and so D2 was able to get back on his feet on the concrete path.  PW2’s camera was fixed on PW1 and D1 but then at 00:04 I can see on the video D2 looking at the red-colour mobile phone bouncing onto the lawn.  The red-colour mobile phone belonged to PW1.  I tried hard to look from the video in order to find out how the phone came to be bouncing onto the lawn but unable to.  However, I found the answer from P8(14).  This is a photo shot that came from Video 2.  It depicts D2 was holding a red-colour object in his right hand up in the air above his head as if he was throwing it onto the concrete surface.  P8 photograph 12 depicts the red object landing on the lawn and photograph 13 depicts the red rectangular object landed on the lawn.  The video footage at 00:05 depicts very clearly the red rectangular object was an iPhone, that is Exhibit P2.  P2 belonged to PW1, the subject matter of charge 3.

108.  I examined P2 and found one of the four corners of the glass cover at the back was badly damaged.  I would add that I can see from the video footage between 00:04 to 00:05 and as well as the abovementioned photographs at the material time, D2 was on his own, there was no one near him.  DW2 was some distance away to D2 at that time and he was in the course of crossing from inside the fence to the concrete path.  Also I heard D2 swearing in Chinese “Fuck your mother or something stinky cunt” after he got back on his feet before throwing PW1’s mobile phone onto the concrete surface.  That is one of the most vulgar, foul language commonly used in Hong Kong.  For D2 to utter this kind of foul language, it reflects he was furious, irritated and in great anger at that time.  Furthermore, it is an admitted fact that after D2 was arrested and cautioned, he said “He took photos or video of me without my consent so I pushed aside his phone”.  By this admission, it is very clear for me that D2 was indeed so annoyed with PW1 filming him.

109.  Based on the above evidence and observation, I have no hesitation whatsoever to find it was D2 who threw PW1’s mobile phone onto the concrete surface deliberately with the intention to damage it.

Charge 4

110.  As mentioned in the preceding paragraphs Video 2 does not depict how PW1 and D2 started grappling with each other and ended up on the ground.  I have considered the evidence from both sides carefully.  Their versions are very different and I find them equally probable.  However, PW1 did give very different versions to the police as to how he fell onto the ground with D2 (see the preceding paragraph 15(5))  and his versions in court.  As I am unsure which version is the truth of the matter, I have to give the benefit of doubt to D2 by finding him not guilty on this charge.

Charge 6

111.  According to PW2’s evidence, D2 came up and slapped his hand which he was holding his mobile phone.  There was no video evidence to support such allegation.  PW1 did not see that happened and so there is only PW2’s words against D2.  Counsel for D2 points out in his submission, when the grappling first between PW1 and D2 then PW1 with D1 had ended completely, PW2 mentioned nothing about being slapped by D2 at all.  Had D2 slapped PW2’s left hand, PW2 would surely have mentioned that in the video clip or at least the video clip would show evidence supporting such allegation but there is none.

112.  I reviewed the footage of Video 2.  As I stated in preceding paragraph, it appears to me that D2 was handing over a red phone case to PW2 but PW2 did not take it.  D2 then bent down to put the phone cover down on the lawn.  There is nothing on that part of the video which indicates D2 could possibly have committed the offence.  After careful consideration, I have to give him D2 the benefit of doubt by finding him not guilty on this charge.

113.  Regarding the two defence witnesses called as common witness for D1 and D2.  I have to say at the beginning they are not independent witnesses, even in DW2’s case, he claimed he is no longer in D2’s employ.  For DW1, D2 is his client and they have known each other for a long time.  After careful consideration, I do not find their evidence credible.  For DW1, as to why he did not ask PW1 to play the video for him to see clearly how he got injured, the evidence or explanation he gave does not make any sense at all.  I do not believe there was a longer version of the video as DW1 alleged.  If the “missing part” of the video only shows DW1 walking from his house to the corner of his garden, and PW1 was only holding his mobile phone and nothing else, why was there a need to edit the video.  I placed no weight on DW1’s evidence.

114.  And for DW2, it appears to me that the evidence he gave is selective for the defendants.  For instance, he said he did not notice D1 bashing PW1’s head with a stone.  Only after Mr Raffell asked him to look at Video 2 again, he agrees it was the case, D1 did bash PW1’s head with a stone.  On the video I can see the moment he and D1 were trying to get D2 out. They were so close and D1 kept hitting PW1 on his head and upper body not once, how could he not able to see D1 was bashing PW1’s head with a stone?  This is only an example to illustrate.  I placed no weight on his evidence.

Verdict

115.  D1 is found guilty on charges 2 and 5. 

D2 is found guilty on charges 1 and 3 and found not guilty on charges 4 and 6.