THE QUEEN v. CHAN YUK WAI

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A.:

1. The Applicant, Chan Yuk Wai, was convicted after trial in the District. Court, before His Honour Judge Baily, of the offence of wounding with intent contrary to section 17 of the Offences against the Person Ordinance.

2. The evidence was that this wounding had taken place on the 27th May 1986 at the One To Billiard Club in Shaukeiwan. There was no doubt that a wounding had taken place. Ho Chi Ming, who was an eighteen years old employee of the billiard saloon, received a chop wound on his left wrist which damaged the tendons to all his fingers and there was another wound to his right thumb which lacerated it and broke the bone.

3. Ho Chi Ming in evidence said that there had been an altercation in the billiard club when a man, and it was clear that the man was the Applicant, had thrown an ashtray and had swept some of the items off the soda fountain in the premises with a billiard cue. He apparently had a dispute with the boss of the soda fountain.

4. The victim described himself as "running away"and as he ran he was struck, a shaving blow, with a chopper. He stated that he could recognise the person who chopped him but that that person was not in Court. He described the assailant as of "bigger build" than himself.

5. Outside the premises before this incident occurred, there was a police Sergeant having a midnight snack at a cooked food stall. He saw a person, whom he wasunable to identify, run out of the Club, pick up a chopper, presumably from one of the cooked food stalls, and run back again. He then, in the course of his duty, went to the Club and inside it called out that he was a policeman. He said he heard that someone was being chopped. He saw three people struggling. He went closer to them and saw one person chopping another with a chopper. The victim was struck twice. He shouted out "Police", drew his pistol and a man dropped the chopper into a bucket. He says he them asked for the identity card of the man with the chopper. It was the identity card of the Applicant and he later identified the Applicant upon an identification parade.

6. There was, therefore, a clear conflict as between the evidence of the victim who said it was not the Applicant and the evidence of the Sergeant who said it was.

7. The trial judge in his Reasons for Verdict set out these facts and he then went on, in a passage which has drawn criticism from Mr. Alderdice who appears for the Applicant in this Court, to say:

 

"The sergeant says that as a result of what he saw inside the club he drew his revolver and claimed himself to be a police officer. He has no doubts that he saw the Defendant inflict the wound on the victim and suggests that the conflict between his  evidence and the evidence of the victim is, or could be some arrangement between the Defendant and the  victim. The victim was never asked to go to an Identification parade, the reason for that being that at one time he was suspected to be somebody involved in a fighting case and who was a suspect himself. In such conflicting evidence it is quite difficult to come to a decision. However, after some consideration, I accept the evidence of the police sergeant. I believe him when he says that he saw the Defendant chopping the victim. I find the. Defendant guilty of the offence." (Emphasis supplied)

8. It was suggested, in the first of Mr. Alderdice's Grounds, that the trial judge had not been seen to direct himself on the Turnbull⁽¹⁾ lines. But with respect, I do not think this was a Turnbull case. The main thrust of the argument is that the trial judge has not sufficiently dealt with, nor been seen to deal with, the controversy to which I have referred. Further that he took into consideration in coming to his conclusion an irrelevant matter and which does not appear in the transcript of the trial which is before us.

9. Mr. Harris, on the other hand, has drawn our attention to Chan King Man ⁽²⁾ which approved that which was said by Blair-Kerr J, in R.E. Low⁽³⁾ as to that which a District Judge's statement of Reasons of Verdict should contain. He submits to us that here there is sufficient evidence to warrant the conviction. Further that there has been sufficient consideration of the conflict and of the evidence generally and that this has been shown on the face of the Reasons for Verdict itself.

10. With respect to the trial judge, to simply say that "In such conflicting evidence" - and it must be remembered that this was a conflict in the prosecution's own case, the Defendant himself not giving evidence at trial - "it is quite difficult to come to a decision" is, to an extent, to beg the question. For myself I would have thought that the resolution of the very direct conflict between the two witnesses required rather more than that. By itself I ,would not necessarily have said it was fatal to the conviction. In conjunction, however, with the earlier passage which I have emphasized as to the purported suggestion by the Sergeant of a reason for this conflict which, by its reference, did disclose how "the mind of the jury" was working, there is cause for concern. This passage did not appear in the transcript of the Sergeant's evidence and, had it been there, was irrelevant. Ho Chi Ming was not examined upon this aspect.

11. The Reasons for Verdict give all the appearance of its having played a major part "in the mind of the jury" in coming to the decision that the District Judge rendered and, in the absence of any proper resolution of the direct conflict, makes this conviction unsafe and unsatisfactory.

12. We would, therefore, grant the application, allow the appeal and quash the conviction and sentence.

(1) (1976) Criminal Appeal Reports Vol.63 (132)

(2) [1980] H.K.L.R. 105

(3) [1961] H.K.L.R. 13 at p.82