Criminal Law — Valerie Tang Secures Acquittal in Criminal Damage Case by Establishing Statutory Lawful Excuse

In HKSAR v Mak Tim Wing (TMCC 553/2024), the Defendant who was charged with criminal damage contrary to Section 60 of the Crimes Ordinance (Cap.200) successfully relied upon the statutory defence of lawful excuse and was acquitted. 

Valerie Tang appeared for the successful Defendant. 

Facts 

The Defendant was tasked with managing a sub-divided village house in the New Territories by its landlord (the “Landlord”), and was responsible for inter alia collecting rent from the tenants and carrying out repairs for the property. 

One of the tenants (the “Tenant”) however refused to pay rent and/or move out. She further erected a metal gate in the corridor of the property, and wrongfully occupied that part of the common area for her own use (the “Gate”). 

Despite repeated oral and written requests, and giving her over 6 months to remove the Gate the Tenant refused to do so. 

Eventually, the Defendant, after obtaining the authorisation of the Landlord, removed the Gate by cutting open the screws attaching it to the wall and a lock (the “Removal”). The Gate was then placed next to the Tenant’s door.

Shortly after the Removal, the Tenant re-installed the Gate at the corridor and subsequently wrongfully occupied an even larger area of the corridor. 

Statutory Defence of Lawful Excuse 

The Defence relied on the statutory defence of lawful excuse under Section 64(2)(b) of the Crimes Ordinance, which operates if the person damaging the property had an honest belief (whether justified or not) that: 

(1) The property, right or interest was in immediate need of protection; and 

(2) The means of protection adopted were reasonable having regard to all the circumstances. 

Specifically, the Defence relied on the English case of Chamberlain v Lindon [1998] 1 WLR 1252. In that case, the defendant demolished a wall which obstructed his right of way, and when the wall demolished, it had already been in place for over 9 months. In holding that the defendant had a lawful excuse, the Court found that the lapse of time did not prevent the defendant from establishing an “immediate need of protection”. Rather, so long as the wall remained as it was, the longer the time it remained, the more urgent the need to remove it so as to avoid any suggestion of acquiescence in the obstruction. 

Court’s Findings 

In acquitting the Defendant, Deputy Magistrate Kevin T.K. Tang found that the statutory defence of lawful excuse under Section 64(2)(b) was established under the special circumstances of this case. 

It was inter alia accepted by the Court that: (1) the Defendant was acting as a property management person; (2) the Gate prevented other tenants from using the common area, as well as the Defendant from carrying out his property management duties; (3) the Defendant via different methods requested the Tenant to remove the Gate but to no avail; and (4) the Defendant honestly believed the only way to remove the Gate was to cut open the screws.  

The above findings were supported by the Landlord’s (DW) evidence, which the Magistrate accepted in full. Upon cross-examination, the Tenant (PW1) also admitted, inter alia, that she was wrongfully occupying the common area, and that the Defendant did by different means request her to remove the Gate on a number of occasions. That said, the Deputy Magistrate found the rest of her testimony to be evasive and dishonest. 

Given that the Gate was never seized as an exhibit, the Magistrate further remarked that the Prosecution could not prove beyond reasonable doubt that the Defendant may have removed the Gate in a “more reasonable” manner.  

Valerie Tang was instructed by the Duty Lawyer Service. 

Valerie Tang

“Valerie is quick-witted, articulate in her advocacy and very knowledgeable with a sharp legal intuition. She is definitely a rising star in the legal industry and one to look out for.” 
Legal 500 Asia-Pacific 2025, Rising Star

Valerie was called to the Hong Kong Bar in 2019. She enjoys a broad civil practice with a special focus on company and commercial law. Valerie is also well-versed in family law, and has experience in land, probate, personal injuries, employment and mental health-related matters.

Prior to obtaining her law degree from the Chinese University of Hong Kong, Valerie read International Relations at the London School of Economics and Political Science. She also worked at the Legislative Council of Hong Kong from 2015 to 2018 during which she was involved in policy research and bill drafting.

Valerie is fluent in English, Cantonese and Mandarin, and she accepts instructions in all areas of work.

More details can be found in Valerie’s profile.

This article was first published on 25 February 2025.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.