HKSAR v Man Ho Chuen
Court of First Instance
Magistracy Appeal No. 462 of 2015
Judianna Barnes J
14 March 2016

Common assault – whether Magistrate erred in approach to prosecution evidence, including photograph of alleged assault – whether erred in approach to defence evidence

D was convicted of common assault. X, an Occupy Central activist, gave evidence that after dissuading fellow supporters from rushing opponents, D, who opposed the movement, suddenly snatched a yellow ribbon pinned to his chest and used two fingers to fork X’s neck causing pain; X stepped back and was led away; the incident lasted five to 10 minutes; X went to a first aid station where ointment was applied; the pain lasted for two days; he knew of D from media reports; and called the police that night after seeing on Facebook a photograph of D’s hand reaching out and touching his neck (the “Photograph”). PW2 testified that as he followed demonstrators, an acquaintance pointed out D and said he had assaulted someone and sent him the Photograph by WhatsApp which showed the man whom he later asked the police to arrest apparently attacking a young man. D, acting in person, gave evidence that he struck up a conversation with X who was emotional and unexpectedly raised his leg forward; he instinctively straightened his arm and made a fist to protect himself but X moved too quickly and his hand touched X’s neck lightly; he then turned and lost sight of X. Despite D’s allegation that the Photograph was altered, the Magistrate admitted it in evidence. However, he stated that he disregarded it “for the time being” but “if necessary” he found it truly depicted the situation and supported X’s evidence and gave “full weight” to it. The Magistrate rejected D’s evidence. D appealed against conviction.

Held, allowing the appeal by quashing the conviction, that:

  • There was no expert evidence to authenticate the Photograph. Further, it was a still image and not a motion video recording. It would be very simple to fake or alter the photograph and then upload it on Facebook. Even if the image depicted were genuine, it might be inaccurate due to the angle from which it was taken.
  • The Magistrate had not considered: why, since X was assaulted for no reason, he felt so much pain that he was treated immediately and it continued until the next day and he knew who D was, X waited until the Photograph surfaced before he called the police; whether the photograph was faked or altered; and that despite the presence of supporters, opponents and police, there was no independent evidence to corroborate X’s account.
  • Based on X’s testimony, the entire incident should have lasted for only one or two minutes, not five to 10 minutes unless, given D’s evidence that he started talking to X and only subsequently took action to protect himself, X had not revealed everything. If so, the Magistrate had failed to consider whether X had disclosed the whole truth.
  • PW2 was not an eye witness and the prosecution did not need to call him. D was unrepresented and unaware that PW2’s testimony was hearsay and so he did not object to it. The Magistrate should have asked the prosecution why it was adducing such evidence to ensure that no hearsay was mistakenly admitted. Notwithstanding, the Magistrate did not refer to PW2 in his statement of findings and, as a professional magistrate, he did not erroneously rely on his evidence.
  • This was a “one against one” case. If D’s evidence was or might be true, the prosecution failed to prove its case. Even if the Magistrate rejected D’s evidence, he had to be sure that the charge was proven. The Magistrate had not given due consideration to a number of issues and the Court, on this appeal by way of rehearing, could not decide whether X’s evidence was credible and reliable.
  • In light of the foregoing, D had not brought suspicion on himself and was awarded costs of the appeal and trial.
Jurisdictions: 

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