Magistrate Frances Leung acquitted D1 of fighting in a public place after the prosecution failed to (1) prove the alleged fight took place in a “public place” and (2) the defendant was not acting in self-defence.

A charge of fighting in a public place was laid against D1 (a 70-year-old man), and two brothers, D2 (a 51-year-old man) and D3 (a 47-year-old man). The prosecution’s case was that the defendants engaged in a fight at “an open area near DD 96 Lot 813 of Ma Tso Lung Road, Lok Ma Chau”. There was neither CCTV footage nor eyewitnesses who could show what happened. Police received “999” calls from both D1 and D3 and arrived at the scene. D1 was found to have blood all over his face, bruising and swelling on eyelids, a laceration near his left eye, and teeth loosened. On the other hand, D2 was found to have an abrasion on his right thumb. Under caution and subsequent record of interview, D1 explained that he was hit by D2 and D3. When he cried out for help, D2 tried to use his hand to cover up his mouth. Since blood was all over his face, he bit the thumb which was put inside his mouth as self-defence. D2 pleaded guilty and was fined. D1 and D3 pleaded not guilty and stood trial before the Court.

The Magistrate agreed with D1’s submission that the prosecution could not prove the location of the fight (even if it was a “fight”) to be a public place. Given that where the police arrived was near Lot 813, Lot 814, and Lot 816, the police officer simply cannot tell where the fight exactly took place (as he came after the fight ended). The Lots were, nonetheless, found to be owned by different Tsos.

For completeness, the Magistrate further examined the content of D1’s statements under caution. The Court agreed that given D2 and D3 were brothers, D1 was disadvantaged by number. D2 and D3 were also significantly younger than D1. Medical reports and photographs revealed that D1 suffered more serious injuries as compared with D2. The prosecution not only failed to prove the fight took place at a public place, but it also failed to prove D1 was not acting in self-defence.

As the prosecution cannot prove the nature of the location of the offence, both D1 and D3 were acquitted.

The Magistrate noted that D1 had previously written on two occasions to invite the prosecution to consider amending the charge against D2 and D3 to one of wounding/assault for which D1 would be willing to be a prosecution witness. D1 also gave a full analysis of evidence in writing to the prosecution before plea which was eventually accepted by the Magistrate. The prosecution, nonetheless, refused D1’s offer and proceeded with the current charge. Having considered the litigation attitude of D1 throughout the litigation, the Court found that D1 did not bring suspicion onto himself and ordered the prosecution to pay costs to D1.

Simon So appeared with Herman Ho for D1 in the 2-day trial.