Magistrate Daniel Tang found the defendant had a bare case to answer in the special issue proceeding (viz a proceeding determining the admissibility of confessions) and ruled the alleged oral and written confession inadmissible. After ruling out the confessions, the Magistrate found that he had a bare case to answer and acquitted him.

The defendant, then 19 years old with profound and severe hearing loss in his left and right ears respectively, was charged with assaulting a police officer. The prosecution alleged that the defendant confessed to a police constable after being arrested by saying “I was impulsive and hit [the] police [officer], ah sir [I am] sorry, please give me a chance” (我一時衝動先會打警察，呀sir 對唔住，比次機會我). The oral confession was later recorded in writing.

Under cross-examination, the arresting officer (PW2) gave these evidence:-

(a)Despite having profound hearing loss, PW2 said he gave the defendant his mobile phone to call his mother.

(b)Despite the defendant was found to have 2 ribs fractured and 1 rib displaced, PW2 said both the defendant and the defendant’s mother did not ask for him to be admitted to a hospital.

(c)Despite the defendant’s hearing loss and the fact that PW2 knew the defendant required hearing aid, no sign language interpreter was ever arranged.

(d)Police videos captured PW2’s colleague saying that he would wish to “align the story” (對埋故仔) with the complainant first. When being put he aligned the confession in accordance with the complainant’s injury, PW2 elected to invoke his privilege against self-incrimination and remained silent.

The Magistrate was not satisfied that the prosecution had proved beyond reasonable doubt that the confessions have been obtained fairly. Regardless of the intention of PW2’s colleague, the words uttered by him that he wished to “align the story” was “disturbing” (令人不安). Further, the Magistrate agreed with the defence that the legal concept of “assault” would not be familiar to a layman. It is thus very improbable (非常不可能) that the young defendant would have used “hit” (打) to describe the act (i.e. “grab” (搶)) as complained by PW1.

Bearing in mind the police video, the Magistrate said that he could not rule out the possibility that the defendant fell onto PW1 accidentally because of the crowd rushing forward on the pavement.

The defendant was initially convicted by Magistrate Chaeng Kei-hong and sentenced to a rehabilitation centre. His conviction was overturned by Barnes J but he was ordered to be retried before another magistrate. He has been incacerated for 7 weeks prior to obtaining bail pending appeal.

Simon So represented the defendant in the re-trial as sole advocate. Simon had represented the defendant in his appeal against conviction before Barnes J: [2021] HKCFI 2893; and his application for leave to appeal against the retrial order before the Appeal Committee (Ribeiro and Lam PJJ, Bokhary NPJ): FAMC 30/2021, both as sole advocate.