HKSAR v. YUNG CHI TUNG

HCMA296/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 296 OF 2008

(ON APPEAL FROM KTCC 7227 OF 2007)

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REASONS FOR JUDGMENT

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1. The appellant (the 2^nd defendant) was charged jointly with another defendant (the 1^st defendant : D1) for fighting in a public place and criminal damage.  The appellant and D1 both pleaded not guilty to the charges.  After the trial, the learned magistrate acquitted the appellant on the criminal damage charge but found him guilty of the fighting charge.  As to D1, the magistrate acquitted him of both charges.

2. The appellant seeks to appeal on the conviction.

3. The trial was conducted in English but I gave leave to the appellant to write and make submissions in Chinese as he said he could not afford to engage a lawyer nor does he know English.

4. This case involved a dispute that had taken place in the lobby of Ching On House, a residential building.  The main witness for the prosecution was Madam Yeung (“PW1”).  She was the security guard of the building.  She testified that she was on duty in the lobby on 30 October 2007.  At one stage, she noticed that D1, a non-resident, had taken the lift to go upstairs but he returned, shortly after, to the lobby and was about to leave.  However, the appellant, who lived in the building, saw D1 and asked her whether D1 was a resident.

5. PW1 said somehow, D1, on hearing that, rushed back from the main entrance to attack the appellant, but the latter warded him off and grabbed D1 by the neck.  A struggle between then ensured.  Later, the police arrived and arrested both of them.

6. After the prosecution case, both D1 and the appellant had elected to give evidence.  D1 stated that he actually lived in a neighbouring building.  On the day in question, he was going to visit a friend in Ching On House, but he failed to locate him.  As he was leaving the building, he heard someone shouting.  It occurred to him that he had forgotten to register as a visitor so he returned.  Then he had a row with the appellant about his presence there.  He said that when he was going to register his name, the appellant blocked his way, attacked him and forcibly restrained him until the police arrived.  D1 said he did not kick nor hit back, hence there was really no fighting between him and the appellant.

7. The appellant said otherwise.  He testified that after he had gone home that day, his wife complained to him that someone had tampered with their iron gate earlier.  So the appellant went out to see if he could find the suspect.  Upon returning to the building, he saw D1 who was about to leave.  So he made enquiry with the security guard as to whether D1 was a resident there.  But D1 then became aggressive and hit him.  He fended off D1’s attack and managed to subdue him, which was done in self-defence, and he was the one who told the security guard to call the police.

8. In her evaluation of the evidence, the learned magistrate concluded that PW1 was not a credible witness because of her contradictory testimony.  The magistrate considered PW1 to be biased and what she said was also inconsistent with the contents of the CCTV tape.  Similarly, the magistrate was not impressed by the appellant’s account.  She pointed out in her statement of finding that :

“15.   The appellant was contradictory [in that]:-

·   He said, and also demonstrated, that D1 had attacked him with both fists out in front, as if stepping forward, and yet when cross examined on this, he said that D1 was holding a ParkNShop bag, and a bamboo stick of about 18 inches long, and that D1 had used his knee to bump on his leg.

·   He had chased D1 from 27^th floor all the way to the OK Convenience Store, and shortly after, he saw D1 leaving the building.  Later, under cross-examination, the appellant said he did not want to catch him.

·   The appellant said many times that D1 had hit him, and when he was asked where was he hit, the appellant responded that D1 had bumped into him.  When asked again, the appellant finally said, ‘Here I believe, but I don’t remember.’ ”

9. The magistrate also rejected the appellant’s claim of self-defence.  She stated :

“16.   It is also incredible that the appellant could have been acting in self-defence by grabbing D1 in the corner for around 13 to 15 minutes until the police arrived.  From his account, I found him to be untruthful and evasive, and I did not believe him.  His demeanour was consistent with that. ”

10. As to the evidence of D1, the magistrate considered him to be a truthful witness.  She had this to say :

“12.   Although D1 has a significant conviction record, including a conviction for inflicting grievous bodily harm in 1993 and fighting in 2006 (also, dangerous drugs in 1995, and theft in 1997 and 2007), I was satisfied that D1 was telling the truth.  D1 was clear and reasonable, and from his account, I found him reliable and truthful, and his demeanour was like that of a man honestly recounting something that he had experienced.”

11. The magistrate stated that she would accept and rely on the account given by D1 and the contents of the CCTV recording.  The magistrate found that when D1 returned to the building, he did not rush back to attack the appellant as PW1 and the appellant had claimed; it was the appellant who had, unreasonably, restrained D1 at the guard post and held him down until the arrival of the police.  (See the paragraphs under evaluation and self-defence in the Statement of Findings.)

12. In conclusion, the magistrate made the following specific findings :

“22.   Is it possible that the appellant had misunderstood D1’s approach, and thought that D1 was about to hit him?  Photographs A and C shows that lobby to be spacious, with plenty of room for the appellant to step aside or dodge.  The CCTV does not show the whole incident, or the entire area, but from what is seen from the tape, we saw the appellant lunging at D1, forcing him backwards into the corner.  The appellant was fighting, assaulting D1, and it was unlawful.

23. I did not believe that the appellant honestly believed that it was necessary to defend himself.  The amount of force he used was also unreasonable – even if D1 had pushed and hit him on the chest, in the beginning, as the appellant had claimed, it was unreasonable for the appellant to be grabbing him in the corner for so long, until the police arrived.  I was satisfied that the prosecution had proved beyond reasonable doubt that the appellant was not acting in self-defence.”  [Emphasis added]

13. What had transpired was, in effect, that the magistrate had rejected the evidence of the main prosecution witness, but accepted the evidence of one of the defendants (D1).  She also relied on the evidence of the CCTV recording, which showed part of the incident, to convict the appellant of the charge of fighting.

14. However, it is really common sense that it would take two to fight.  Of course, like the offence of conspiracy, one defendant may be acquitted of fighting whereas another defendant may be convicted, depending on the nature of the evidence and the issue of admissibility.  But here, the magistrate had believed one of the two defendants who said he did not fight with the other defendant.  Logically, then there was no fighting between the two defendants and it was a case of assault by one on the other.  Hence, the charge of fighting could not be established.  The magistrate did say that D1 was assaulted by the appellant (see paragraph 22 of Statement of Findings).  If so, the magistrate should have amended the charge according to section 27 of the Magistrate Ordinances, Cap. 227 and the appellant should be given the opportunity to meet that particular charge.

15. It may well be difficult to decide, against the background of this case, at what stage the amendment should be made, and on how to proceed with the trial if the magistrate wish to rely on the evidence of a co-defendant to convict the appellant on a different charge.  But that would be a matter for the trial magistrate to decide.

16. In the circumstances, the appeal was allowed, the conviction quashed and the sentence set aside.