THE QUEEN v. WONG MEI HA

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 918 OF 1995

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J U D G M E N T

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1. This was an appeal against a conviction for an offence of fighting in a public place. The Appellant was the sixth of originally six defendants who were charged with this offence. She and D5 were companions. They were attacked by D1 to D4. The Appellant was seen to try to fend off the attack by a taxi-driver who had driven his taxi into the vicinity. After the attack D1 to D4 boarded that taxi and D5 rushed to the taxi to hit one of his former assailants. D1 to D4 once again left the taxi and resumed their attack on D5. At some stage two police officers came upon the scene and, inter alia, saw the 5th Defendant and the Appellant hit one of the other four. All were then arrested. The second part of the assault was not witnessed by the taxi-driver.

2. The simple point on the appeal was whether or not the learned Magistrate had properly considered the aspect of self-defence. In her findings she said this :

"PW3 (the taxi-driver) saw what happened before the four males alighted from his taxi. After they alighted he did not see how they fought. PW1 and PW2 (the police officer) came to the scene on hearing some noise. There were street lights on. They saw six people including the Appellant fighting. Two of the males were on the ground. The Appellant hit once on the head of one of the males. It was not an act in self defence. The male later kicked on the Appellant."

3. It was clear that the police officers came upon the scene after the initial assault, and it was clear that the Magistrate relied upon their evidence when convicting the Appellant.

4. What the learned Magistrate did not appear to consider was whether the one blow seen to be delivered by the Appellant was an act of defence, not so much to protect herself, but to protect her companion, whom earlier she had tried to protect from the attack of the four men. At the time the two police officers did arrive, two males were on the ground, one of whom must have been D5. It was entirely possible, in the confused circumstances, that, coming upon the scene late, they misinterpreted the actions of the Appellant.

5. That, I felt, was a very real possibility, especially in light of the taxi driver's evidence, and one not fully considered by the learned Magistrate. I therefore had a lurking doubt about the conviction, and allowed the appeal.