A press photographer facing trial for assault is not immune from prosecution simply because he was earlier treated as the victim by the Department of Justice, a magistrate heard yesterday. Prosecutor Cheng Huan SC said it should not be the case that whoever complains to the police first could avoid being accused of a crime. Frankie Chan Muk-nam, 35, a photographer for Ming Pao Weekly, is accused of assaulting two Oriental Press Group employees outside the High Court in June last year. One of the men who has brought the private prosecution, Ma Kwei, 49, was acquitted last October of assaulting Chan causing him actual bodily harm, arising from the same incident. Mr Cheng told magistrate Abu Bakar bin Wahab: 'There is simply no authority cited to say that because a defendant had acted as a prosecution witness in a previous case, that in itself should make him immune from being prosecuted.' Western Court had heard Chan's defence counsel, Lawrence Lok SC, argue that the private prosecution might have been motivated by revenge and spite. Mr Lok asked for the case to be thrown out of court. 'In statements prepared by the police in the previous case, the defendant was described as a 'victim', not a 'suspect'. The prosecution witness in the previous case is now a defendant in the same case - that's prejudice.' The magistrate expressed the same concern: 'The defendant was a witness of a prosecution. Now in the same incident, he is the defendant of a private prosecution.' The magistrate is to rule tomorrow on whether the case should be terminated.