HKSAR v. LAM SUI WAH

CACC 119/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 2001

(ON APPEAL FROM DCCC NO. 1088 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. The Applicant was tried in the District Court by Judge Line on a charge of wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance (Cap. 212) ("the Ordinance"). He had pleaded not guilty. He was acquitted on that charge, but convicted of the lesser offence of what the judge described as "simple wounding" contrary to section 19 of the Ordinance. He was sentenced to 2 years' imprisonment. He now applies for leave to appeal against his conviction and sentence.

The evidence

2. As often happens, the incident which triggered the events giving rise to the charge which the Applicant faced was a relatively trivial one. The Applicant and his co-defendant, Li Man Wai (D1), were working on a building site in Kowloon. One day in September 2000, they got into an argument with Wong Kuen Tung (PW1). The Applicant believed that the previous day PW1 had driven his dumper truck in such a way that it had dented the Applicant's van. As a result of the injuries which PW1 eventually received, PW1 had no recollection of what had happened after the argument began, and the evidence against the Applicant and D1 came from two eye-witnesses, Li Kwok Kuen (PW2) and Ng Mau Hang (PW3). Since their evidence differed from that of each other in important respects, it is necessary to summarise what each of them said.

3. PW2's evidence was not all that clear, as the judge was at pains to point out, but the thrust of his evidence was as follows. He saw PW1 and D1 arguing with each other. PW1 was holding a shovel. PW1 then ran off and D1 chased him for a short distance. The Applicant went up to them and joined in the argument. D1 then went back to the Applicant's van and collected a pickaxe handle. D1 and the Applicant then chased PW1 again, and PW1 tried to defend himself by swinging the shovel in front of him. The Applicant managed to get hold of the end of the shovel, and he and PW1 were both pulling it (though towards the end of his evidence, PW2 said that the Applicant's attempt to get hold of the shovel could have happened before D1 had got the pickaxe handle). In the course of that, the Applicant was hit with the shovel. At that stage, D1 hit PW1 with the pickaxe handle, and PW1 fell to the ground dropping the shovel. D1 picked it up and hit PW1 with it on the head. He then kicked PW1 a couple of times. The Applicant then came to the help of PW1, propping him up and trying to stop him from bleeding. It will be noticed that we have highlighted two aspects of that account - for reasons which will emerge in due course.

4. PW3's evidence was much clearer. The first thing he saw was D1 and the Applicant fighting with PW1. D1 was holding a bamboo pole, and PW1 had a shovel with which he was trying to ward D1 and the Applicant off. PW1 then ran off, and D1 and the Applicant chased him. In cross-examination, he said that he thought that the Applicant had been carrying a stone which he threw, though he had not said anything earlier about the Applicant having done that. Be that as it may, D1 and the Applicant caught PW1 up, and D1 hit him on the head with the pole. PW1 then fell to the ground, dropping the shovel. The Applicant picked it up and hit PW1 twice on the bottom with it.

5. This summary of the evidence of PW2 and PW3 (which we have taken from the transcript of their evidence rather than from the judge's summary of it in his Reasons for Verdict) reveals a number of significant differences between their evidence. PW3 referred to the Applicant throwing a stone, whereas PW2 did not. PW2 referred to PW1 and the Applicant each pulling on the shovel, whereas PW3 did not. PW2 thought that D1 had armed himself with a pickaxe handle, whereas PW3 thought that it was a bamboo pole. And most important of all, PW3 thought that the shovel had been picked up by the Applicant and that it had been the Applicant who had hit PW1 with it, whereas PW2 thought that it had been D1 who had picked up the shovel and had hit PW1 with it. Indeed, PW2 described the Applicant as going to PW1's help.

6. The Applicant elected to give evidence. He admitted having argued with PW1. He said that PW1 had armed himself with the shovel, and that he had walked along the road with PW1 trying to reason with him. Suddenly, PW1 had hit him with the shovel. He and PW1 had struggled to get hold of it, and eventually he had pushed sufficiently hard for PW1 and the shovel to fall to the ground. He said that he had never hit PW1 over the head with it, and that although he had seen D1 with a pickaxe handle at one stage, he had no idea whether D1 had ever used it.

7. To complete the picture, when arrested at the scene, the Applicant said:

"Ah Sir, yesterday, his dump truck had crashed my vehicle. Today, I intended to argue with him on that. However, he hit (me) with an iron spade. I warded off (his attack) with my hand and caught the iron spade. After that, I hit him back and then he lay down."

When giving evidence, the Applicant did not deny having said that to the police.

The judge's analysis of the evidence

8. The judge did not believe the account given by the Applicant, but that did not mean that he accepted the prosecution's case in its entirety. The problem was the difference in the evidence of PW2 and PW3. The judge was alive to these differences. He said:

"In my judgment they were both honest witnesses doing their best to tell me the truth and the fact that there are differences between them, and important differences between them, is merely a dramatic illustration of what we well know, that witnesses to fast-moving, upsetting events will give, even though it is honestly given, different stories."

But when he came to decide what evidence to accept, he added:

"The prosecution have not invited me to pick and choose between those two witnesses and I think that is realistic in the circumstances."

He therefore decided not to resolve such differences as there were in the evidence. Mr Andrew Bruce SC (who appeared for the Applicant on the application for leave to appeal but not in the trial) conceded that had the judge accepted the evidence of PW3, no ground would have existed for challenging the Applicant's conviction. But since the judge did not accept PW3's evidence where it differed from that of PW2 (nor for that matter PW2's evidence where it differed from that of PW3), the finding of guilt has to be assessed by reference to such parts of their evidence which did not contradict each other.

9. That is the context in which the judge made the crucial finding which he did, namely that the evidence of PW2 and PW3 amounted to "cogent evidence of a joint attack by D1 and [the Applicant] on a retreating victim clearly intending him some harm". A little later in his Reasons for Verdict, the judge said that he was sure "on the evidence of PW2 and PW3 that this was a joint attack where they wanted to hurt" PW1. Thus, the critical question on which the outcome of this application for leave to appeal turns is: was there, on those parts of the evidence of PW2 and PW3 which were not inconsistent with each other and which the judge must be treated as having accepted, a sufficient evidential basis for the judge to make findings of primary fact from which it could be inferred that the Applicant was a party to a joint enterprise with D1 to attack PW1 with the intention of hurting him and causing him some harm? The only point taken by Mr Bruce is that there was not.

10. We think that there was. Both PW2 and PW3 spoke of the Applicant (as well as D1) having chased PW1 down the street. There is no doubt that that was PW3's evidence, and having read the transcript of PW2's evidence with care we think that that is what PW2 was saying as well. There are two passages in PW2's evidence which are relevant. First, at p. 53P-T of the appeal bundle, PW2 was questioned as follows in examination-in-chief:

"A. [PW1] and [D1] were having a chase for 10 odd feet.

Q. Who chased who?

A. D1 chased [PW1].

Q. And what happened then? What happened next?

A. Then after chasing for 10-odd feet [the Applicant] also appeared.

Q. What did you see next?

A. And then [the Applicant] had a quarrel with [PW1]."

This evidence was not inconsistent with PW3's evidence, and was evidence which the judge must be treated as having accepted. It shows that the quarrel was not just between PW1 and D1, but that the Applicant was involved in it as well.

11. Secondly, at p. 61O-R of the appeal bundle, during PW2's re-examination, the following exchange took place between the judge and PW2:

"Court: In the course of the event you've described, once the violence started, who was going forward and who was going backwards?

A. [PW1] was retreating."

That was taken up by counsel for the prosecution, and the re-examination of PW2 continued:

"Q. And as [PW1] was retreating what was the [Applicant] doing?

A. Well, he - all along he chased as he shouted.

Q. What did he shout?

A. Well, the two of them exchanged some abusive language.

Q. And what was the [Applicant] trying to do to [PW1]?

A. The two of them only exchanged abusive language."

This evidence was not inconsistent with that of PW3, and it showed that PW2 (and not just PW3) was saying that PW1 had been chased by the Applicant (and not just by D1).

12. Thus, those parts of the evidence of PW2 which were not inconsistent with the evidence of PW3 were to the effect that the Applicant joined in the argument between PW1 and D1, that he joined D1 in chasing PW1 down the street, and that he was abusive towards PW1. The judge must be regarded as having made findings of fact to that effect. Otherwise, he could not have concluded that the Applicant was a party to a joint enterprise with D1 to attack PW1 with the intention of hurting him and causing him some harm. In our judgment, that inference was one which it was open to the judge to draw from those findings of fact.

13. For these reasons, therefore, the application for leave to appeal against conviction must be dismissed.

The application for leave to appeal against sentence

14. Mr Bruce adopted a realistic stance when he came to deal with the application for leave to appeal against sentence. He acknowledged that the factors which mitigated the gravity of what the Applicant had done pre-supposed that he had not been a party to a joint enterprise to attack PW1 intending to cause him some harm. Mr Bruce accepted that if we found that the judge had been entitled on the evidence to take that view of the case, there were no submissions which he could responsibly advance in support of the application for leave to appeal against sentence. We agree with that concession. Since we have found that the judge was entitled to find that the Applicant had been a party to a joint enterprise to attack PW1 intending to cause him some harm, it follows that the application for leave to appeal against sentence must be dismissed.