Public prosecutors yesterday appealed against the acquittal of a former Apple Daily photographer charged with assaulting a security guard at the government's headquarters.
The High Court judge hearing the appeal was asked to consider whether the not-guilty verdict had been appropriate, but she said the magistrate who oversaw the trial had found evidence given by both the photographer and the guard not credible. She asked the prosecution if the magistrate had been wrong to acquit the photographer after elements of the charge were not proven beyond reasonable doubt.
Gary Sing Kai-chung, 41, was found not guilty in December of assaulting security guard Yu Chau-pui, a retired policeman. In acquitting Sing, Magistrate Joseph To Ho-shing said he could not rule out that Sing had been acting in self-defence.
At the trial, the court heard that on January 9 last year, Sing had been trying to photograph Michael Suen Ming-yeung, then education minister, as the official was returning to work after being treated in hospital for legionnaires' disease.
Yu and Sing collided when the 64-year-old security guard tried to stop reporters taking photos. Yu fell on the ground and hurt his hand. Sing later pleaded not guilty to assault.
After hearing legal arguments yesterday, Madam Justice Maggie Poon Man-kay, of the Court of First Instance, reserved her decision. A written judgment will be handed down later.
In support of Sing, Next Union, which represents Apple Daily staff, called on the Department of Justice to stop "hunting down" journalists.
"I am surprised that the Department of Justice would keep biting, and lodged an appeal," said Norman Choy Yuen-kwei, vice-president of the union. "We hope that the Department of Justice will not be obstinate about this minor case."
He said there had been growing pressure on journalists from public prosecutors in recent years, and that police had been hard on frontline reporters.
During the appeal, prosecutor Simon Tam Man-fai said the magistrate's verdict had been flawed and the case should be sent back to court for a retrial.
Tam said the trial magistrate had misunderstood Yu's testimony and had reached a conclusion by speculation and not backed by evidence. The prosecutors said the legal test in reaching a verdict should have been whether there was "reasonable inference", but that the magistrate had adopted a lower standard of "possibilities".
Lawyers for Sing said the magistrate had based the verdict on video footage to reach a conclusion that the alleged intention of Sing to attack the guard could not be proven. Barrister Eric Kwok Tung-ming SC highlighted that the magistrate found the guard had been exaggerating in testimony and was not credible.
Yu had told the court that: "[Sing] dashed towards me and pushed me with his chest." But the magistrate said Yu was exaggerating.