Criminal law and procedure — binding-over — defendant acquitted after trial — binding-over order preventive measure — failure to consider likelihood of similar breach of peace in future — terms of order too wide and uncertain — order set aside
[2017] CHKEC 16
Court of First Instance
Magistracy Appeal No 693 of 2015
Judianna Barnes J
8 September, 16 December 2016, 9 January 2017

D pleaded not guilty to common assault and was acquitted by the Magistrate. D, a District Councillor, was refused access to the District Council office to continue a sit-in protest and attempted to force his way in. Two security guards (PWs) pinned down D’s legs which hit PWs. The Magistrate found that D’s legs might have involuntarily come into contact with PWs. On the prosecution’s application for review, the Magistrate affirmed his verdict, but noted that D knowingly trespassed; PWs used reasonable force in attempting to remove him; D’s resistance gave rise to a reasonable apprehension that violence would take place; and as D was “uncooperative” and “attempted to remain forcibly”, ordered that D be bound over for 12 months on his own recognizance of $1,000 (the Order). D appealed.

Held, allowing the appeal by setting aside the Order, that:

  • A binding-over was aimed at preventing breaches of the peace by a defendant in the future. The Magistrate found that D had not used force or threatened to do so. There was no evidence that D would act violently in future, yet the Magistrate told D that this was not something he “should” or “needed” to consider. Given D was of clear record, the Magistrate should not have bound him over based on a single incident (especially after acquitting him after trial) without evidence or previous convictions indicating that D would in future breach the peace (HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837 applied). (See paras. 11–12, 14–15, 19–20.)
  • The Order, which prohibited D from committing “any criminal act by using or threatening to use violence against any person”, was too broad and lacked precision and certainty. D was not violent and the incident occurred in one location. The Order was inconsistent with the purpose of a binding-over order, namely to prevent D from committing a similar breach of the peace again (HKSAR v Lau Wai Wo (2003) 6 HKCFAR 624 applied). (See paras. 21–25.)

Appeal

This was an appeal against a binding-over order imposed after acquittal of common assault imposed by Mr Colin Wong in the Magistrates’ Court. The facts are set out in the judgment.

Jurisdictions: