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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.

Prosecution offered no evidence to (i) conspiracy to traffic dangerous drugs; and (ii) trafficking in dangerous drugs upon considering defence representations. Prosecution amended the indictment with the Accused pleading guilty to (iii) failing to surrender to custody and (iv) money laundering (of HK$ 1.9 million).

In 2011, police raided a flat in a public housing estate where a few teenagers (including Boy A and Girl B) were found to be packaging drugs. Upon arrest, Boy A initially said Girl B asked her to traffic in the drugs, whilst Girl B blamed Boy A for doing so. Upon further investigation, Boy A said that a person known as “Fat Man” (肥文) asked him to package the drugs and deposit monies into an HSBC bank account after selling them, to which he complied. The Accused was subsequently arrested since he was the account holder of the HSBC bank account. ID Parade was held where Boy A said the Accused was “70%-80% resembling” (七、八成似) Fat Man; Girl B, on the other hand, said she could not recognize the person who instructed her to traffic the drugs. The Accused was, therefore, charged with (i) conspiracy to traffic in dangerous drugs and (ii) trafficking in dangerous drugs. Whilst granted court bail and the jury trial was set to commence in March 2012, the Accused did not turn up. The Accused was found and arrested in 2024.

Representations were made to the prosecution that the evidence of the Accused’s alleged involvement was weak. A section 16 discharge application (“the Discharge Application”) under the Criminal Procedure Ordinance (Cap 221) was made before Hon Andrew Chan J. Whilst the Discharge Application was dismissed, the prosecution eventually agreed to allow the Accused to plead guilty to two additional charges: (iii) failing to surrender to custody; and (iv) money laundering of HK$ 1.9 million with the initial charges (i) and (ii) being left on the court file.

Hon Andrew Chan J adopted a 9-month starting point for (iii) and 3-year starting point for (iv). The Court was persuaded that despite having absconded for almost 12 years, a full one-third discount should be given to the Accused. The Accused was eventually sentenced to 2.5 years’ imprisonment, with the sentence of (iii) and (iv) running wholly consecutively.

Simon So appeared with Jack Hui for the Accused in the Discharge Application, making representations, and mitigation.

In Hong Kong, an Accused committed for jury trial has a right to make an application (viz the Discharge Application) before a Judge on the basis that the evidence disclosed in the documents is insufficient to establish a prima facie case against him for the offence charged.

Magistrate acquitted a Defendant charged with “living on earnings of prostitution of others” after finding prosecution witnesses “completely unbelievable” and awarded costs.

Three undercover officers (“PW1 – PW3”) acted as decoys and visited a bar. The prosecution’s case was that the officers were received by a “female bar manager”, brought to a nearby bar, and asked whether they wanted “girls that can go out with them” (出街女). It was also the prosecution’s case that the “female bar manager” discussed the price, availability, and nationality of these girls with the officers. The operation took two days and turned overt on the second day after two of the officers each brought a girl with them to a nearby hotel room. It was the prosecution’s case that the “female bar manager” was the defendant.

In finding the defendant not guilty, Magistrate Kestrel Lam said he had “no slightest hesitation in finding the prosecution’s case unsatisfactory” (毫不猶疑地認為控方案情無法令人滿意). The Court found that the evidence of the PWs had many significant inconsistencies, for which they could not provide any good reasons. Amongst other things (i) PW1 provided an awkward post-record method (viz to record the matters on a plain paper and then copying the same to a brand new notebook issued to him at a later stage) which was raised for the first time in court and never mentioned by PW2 / PW3; (ii) All PWs (coincidentally) said the conversation took place in a room known as “A3” whilst there were in fact no such room in the bar; (iii) PW2’s and PW3’s notebook post-record and witness statements were completely identical (including punctuation, unique adjectives, and typographical mistakes) but both strenuously denied they had ever referred to one another’s record; (iv) Despite having consumed significant amount of whisky during the course of the operation, all witnesses avoided mentioning the alcohol concentration and the volume they consumed in their notebook and/or witness statement, trying to avoid the impression that their recollection might have been affected.

The Magistrate found the evidence of the witnesses “unimaginable” (匪夷所思), “making up a lie to cover up another lie” (編造不實謊言試圖掩飾), “completely a pack of lies” (完全大話連篇), and “tantamount to an insult to the intelligence of everyone in the court” (侮辱法庭上所有人的智慧). The Court found that the crux of the case depends on whether the Court can safely rely on the witness’s evidence. For the foregoing reasons, the Court said it had no slightest hesitation to acquit the Defendant.

Following the acquittal, the Court further made a costs order in favour of the Defence.

Simon So appeared with Jack Hui for the Defendant in the 4-day trial.

Court of First Instance ordered Defendants to provide further and better particulars despite objection and awarded partial costs.

In the underlying action, the Plaintiff claimed against the Defendants for damages of HK$17 million for breach of a subscription agreement and a shareholder agreement, in which the Plaintiff was the subscriber/shareholder, the 1st Defendant (“𝗗𝟭”) was the subject company, and the 2nd Defendant (“𝗗𝟮”) was the guarantor of performance of the 1st Defendant.

After receiving the pleadings, the Plaintiff made multiple requests for further and better particulars of the D1’s and D2’s defence, out of which 36 were still outstanding. After a contested substantive hearing before Master K W Wong fixed for 3 hours, the court ordered 26 (with modifications) out of the 36 outstanding requests on the grounds that they were necessary for the fair disposal of the action or to save costs. The Master also awarded 70% costs of the summons to the Plaintiff with certificate for Counsel.

Herman Ho appeared for the Plaintiff as sole advocate at the substantive hearing.

Prosecution withdrew two charges of money laundering against a defendant who allegedly laundered HK$ 5.95 million on the first day of a 4-day trial.

The Defendant was said to have laundered HK$ 5.2 million between December 2018 and October 2022 through an HSBC bank account and HK$ 755 thousand between July 2022 and October 2022 through a ZA Bank account. After making representations on a without-prejudice save as to costs basis to the prosecution, the prosecution decided to withdraw the charges against the Defendant.

Simon So appeared with Jack Hui for the Defendant.

Magistrate refused a forfeiture application by Customs and Excise (C&E) of goods worth HK$ 1.76 million.

The C&E seized some cigars at the Hong Kong-Zhuhai-Macau Bridge, which were declared on the manifest as “KITCHEN CERAMIN ORNAMENTS USED AND LEFT BEHIND”. C&E applied to the magistrates’ courts for their forfeiture pursuant to s. 28 of the Import and Export Ordinance (Cap 60) on the ground that they are unmanifested cargo. By correspondence, the courier company in the UK admitted that the wrong declaration was their fault and the cigars had been accurately described on the shipping order. The cigars had intended all along to be sent to Macau (rather than Hong Kong). After gathering all the information, C&E decided not to prosecute any individuals but, nonetheless, insisted on an application for forfeiture.

After a full-blown trial, Deputy Magistrate Nicole Chun found that the Claimant (the recipient who resides in Macau) had proved, on the balance of probabilities, that she had not in any way participated, either by design or negligence, in the contravention that resulted in the cigars being liable to forfeiture. All the cigars were therefore returned to the Claimant unconditionally. The Court also refused the C&E’s application for the Claimant to pay administrative and storage costs for the handling and storing of the cigars.

Simon So appeared with Jack Hui for the Claimant in the forfeiture application which lasted for 3 days.

Hon Barnes J granted costs to the Accused upon the Prosecution elected to offer no further evidence after a jury was declared hung.

The Accused, charged with rape, was alleged to have nonconsensual sexual intercourse with the Complainant (“X”) whilst she was unconscious. The Accused, during VRI, admitted to having sexual intercourse with X but explained that X had woken up when they arrived at the Accused’s home and had consented to sexual intercourse.

Due to the exceptional circumstances of the case, the Accused made a no-case-to-answer submission after the close of the prosecution’s case in the absence of the jury: [5]-[13]. Amongst other things, evidence of X was found to be inconsistent with objective evidence (e.g. X said she was completely unconscious in the morning, but X’s mobile phone revealed that she had used WhatsApp, made and had numerous successful phone calls with others, and had communicated with his male friend on Facetime for 32 minutes). X’s immediate reaction after the alleged rape was also inconsistent with being raped (e.g. she invited a male friend to “go and sleep with her”). X’s evidence was also inconsistent with her boyfriend. The Judge decided to leave the matter for the jury. After a 9-day trial, the jury reported that they could not reach a verdict after 8 hours. The Judge therefore discharged the jury.

The Court accepted the defence submission that the Accused’s act was not bringing suspicion to himself such that the prosecution was misled: [17]-[21]; [28]-[33]. The Judge agreed that X’s evidence could not reconcile with objective and/or indisputable evidence: [31]. The Court observed that the objective evidence was in fact within the prosecution’s case and in the Committal Bundle: [11] and [26]. The Accused could not be said to have brought suspicion upon himself whereby the prosecution would have thought the evidence against him was stronger. As such, costs were granted in favour of the Accused.

Simon So with Jack Hui represented the Accused in the 9-day jury trial and the costs application. The reasons for judgment for costs were published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=167335&currpage=T.

The Court found a defendant not guilty of careless driving at trial and not guilty of failing to stop or failing to report after an accident on appeal.

The Appellant initially faced three summonses, namely, careless driving, failing to stop after an accident, and failing to report after an accident. The three summonses originate out of an alleged accident where the Appellant’s private vehicle was said to have “hit a dog”. The Appellant pleaded not guilty to all charges and stood trial before Deputy Magistrate Shirley Hung. The prosecution relies primarily on a car-camera from a minibus behind the Appellant’s private vehicle, which showed a dog coming out of the bottom of the Appellant’s vehicle.

After trial, the Appellant was acquitted of careless driving by the Magistrate. The Magistrate agreed with the Appellant’s submissions that there was no evidence how the dog came into existence and whether any collision in fact occurred. Costs for the careless driving summons was also awarded in favour of the Appellant. However, the Magistrate convicted the Defendant of the “failing to stop” and “failing to report” summonses. The Magistrate was of the view that the dog was crippling and, therefore, injured. The Appellant appealed.

Hon S.T. Poon J allowed the appeal against conviction of both summonses. The Court agreed that the Magistrate erred in finding and the prosecution failed to prove the essential ingredients common to both summonses, namely (1) injury had been suffered by the relevant animal and (2) the accident caused the injury. In the present case, there was no evidence howsoever about the physical condition of the dog (which was a stray dog) both before and after the alleged accident. In particular, there was also no evidence whether the dog was crippling before it came under the Appellant’s vehicle – no evidence could be shown whether there was a collision between the vehicle with the dog or whether the dog went (on its own volition) under the vehicle. Both convictions were therefore quashed with costs of the appeal in favour of the Appellant. The Court agreed that this was similar to the Court of Final Appeal’s judgment in 𝙃𝙆𝙎𝘼𝙍 𝙫 𝘾𝙝𝙖𝙣 𝘾𝙝𝙞 𝙆𝙚𝙪𝙣𝙜 (2012) 15 HKCFAR 133.

Simon So with Herman Ho represented the Appellant in the appeal before Hon S.T. Poon J. The Full Judgement was published on https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=168219&QS=%2B%7C%28HCMA%2C206%2F2024%29&TP=JU&currpage=T . Simon So with Herman Ho were also trial counsel before Deputy Magistrate Shirley Hung.

Deputy Magistrate Christine Leung acquitted a defendant (“D”) charged with indecent assault and ordered the prosecution to pay costs to the defence.

D was the father of the complainant X. The prosecution case said that in the morning of an unknown day, X, of her own volition, entered into the bedroom of D when D was still asleep. X then climbed across (檻過) D and slept at the position used to be slept by X’s mother (viz D’s wife) where X was not looking at D. Then all of a sudden, X said she felt D touching all over her body. After an unknown period of time, X then left the room. X reported the matter about 6 years after the alleged incident on a day to the social worker of her secondary school. Upon arrest, D gave a total denial statement to the police.

On acquitting D, the Court found X to be an incredible and unreliable witness. The court identified that the crux of the case was whether X falsely accused D of sexual assault. Nonetheless, X gave the confusingly incomprehensible answer of “I forgot” (唔記得) for literally the majority of the cross-examinations. These include, for example:-

(a) When asked whether X actually frequently accused her mother or even her younger brother of being “perverted” (變態) even when the slightest social touch of tabbing her shoulder, X said, “I forgot”.

(b) When asked whether X and D had an intense daughter-father relationship as D would always scold her for various different matters, X said “I forgot”.

(c) When asked whether X and D had vigorous quarrels on antagonistic political stance over various incidents occurred during the 2019 social events, X said “I forgot”, “I did not even know about it”.

(d) When asked about the particulars of the alleged assault, X said “I forgot” when asked about the sequence of the touching, which hand D used, from where D allegedly put his hand into X’s clothing, the duration of the touch etc.

(e) When asked about the day before reporting the matter to the social worker, X said “I forgot” what occurred that night.

The Court found that not only was X evasive to simple and straightforward questions, it seems that X was trying to avoid the defence from exploring the possibilities of a false accusation. On all, the court considered that the prosecution’s case was simply unreliable and the defendant was acquitted accordingly. The prosecution was also ordered to pay costs to the defence.

Simon So appeared with Herman Ho in the said re-trial which lasted for 3 days. The defendant was initially convicted by another magistrate and sentenced to 12 months’ imprisonment.

In HCMA 477/2023, Simon So with Herman Ho represented him in obtaining bail pending appeal before Hon Anna Lai J. In July 2024, Simon So further appeared with Herman Ho and Jack Hui in his appeal against conviction before DHCJ E Lee, who allowed the appeal, quashed the conviction, and ordered the prosecution to pay the costs of the appeal.