R. v. CHEUNG KWOK WAI

IN THE COURT OF APPEAL

1996, No. 271
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant was convicted of wounding with intent contrary to s17(a) of the Offences against the Person Ordinance Cap 212. He now seeks leave to appeal against this conviction.

2. At the time of the alleged offence the applicant was a serving police officer. After completing his duties on 14 August 1995 he went with his lady friend to a video outlet at the East Point Centre to rent laser discs.

3. While he was in the shop a dispute arose between him and the victim of the wounding count over who had first selected the sole remaining laser disc which they both wished to hire. So far as events inside the shop were concerned there would not appear to be very much in dispute.

4. It is common ground between the applicant and the victim that there was a lamentable lack of self-control on the part of both men. There was a loud and prolonged exchange of foul language and abuse. The staff in the shop remonstrated with the applicant and requested him to restrain himself. He had been the person who started it.

5. Before leaving the shop the victim said to the applicant that they should not quarrel in the shop but that if they wanted to take the matter further they should go outside.

6. The applicant continued to berate the victim verbally and the conditions were such that he asked the manageress and the manageress agreed to serve him out of line so that he could leave the shop as quickly as possible. When he got outside the applicant said words to the effect we are now outside what do you want to talk about.

7. According to the victim he started to walk away and bumped into the applicant. He then punched the applicant twice on the head and his glasses fell off.

8. It would appear that the applicant fell against the hoarding at the side. There was also evidence that as a result of the applicant losing his glasses he became somewhat disorientated.

9. There were a number of independent witnesses in the store and there would not seem to be a great deal of controversy so far as this brief summary of the facts are concerned up to this stage.

10. What followed was more controversial. The victim said that without warning his opponent produced a gun and fired it at him. He felt something hot and painful. It was only at this stage that the applicant revealed his identity as a police officer.

11. The applicant's version was rather different. He claimed that he had earlier on disclosed his identity and that during the physical confrontation one of his main concerns was to ensure that the other man did not get hold of the police gun he had on him. In his evidence he claimed to have no recollection whatever of having pulled the gun out and fired it at the man.

12. However this evidence had to be considered in conjunction with the evidence given by the police officers who arrived shortly after the shooting. These officers gave evidence to the effect that the applicant stated that he had fired the shots after being attacked by the victim.

13. At this stage it would appear to be helpful to consider the findings of fact which were made by the trial judge HH Judge Whaley.

14. The judge accepted that at the time the applicant was almost beside himself with rage. He held that the applicant did not reveal his identity or tell the man to stop before firing his gun. He also accepted the evidence of the witness who said that the applicant drew his gun from his holster and deliberately fired it at the victim. The judge also had the advantage of viewing the surveillance video tape which recorded much of the incident.

15. The first two grounds of appeal relate to a complaint that the judge adopted the wrong criteria in considering the question of self-defence and erred in finding that the applicant had not believed the force he had used had been necessary to repel the attack.

16. The judge dealt with the question of self-defence in this way.

" It is true that the defendant was attacked by DAI; albeit that it was an attack which the defendant had gone out of his way to provoke. He had had two hard punches to the head, he was feeling disorientated by the loss of his glasses, he had collided with the hoarding - quite possibly his head - but none of this put him in such danger of serious injury that he could possibly, honestly and instinctively, have thought that it was necessary for him to draw and fire his revolver at DAI to prevent any serious injury occurring to him, to repulse the attack.

The test whether the defendant honestly and instinctively thought that that was necessary is one formulated by the Privy Council in Palmer v R [1971] Appeal Court, at 814. The test whether the force used in alleged self-defence was reasonable is not an objective one as the wording of that test demonstrates. It is a question of whether the defendant honestly and instinctively did believe that the degree of force was necessary. In assessing this question, I have fully borne in mind that the defendant was clearly enraged at the time, he was in an emotional state which was quite uncharacteristic for him but, even in that state, he could not have believed - and I find that he did not believe - that it was necessary for him to use that degree of force in the situation in which he found himself. As I say, the prosecution have satisfied me beyond a reasonable doubt that he was not acting in self-defence."

17. This was the correct test to adopt. Having regard to the judge's findings of fact it is not possible to fault the conclusion he reached that the applicant was not acting in self-defence. In this connection it should be added that the medical evidence was that the applicant's state of mind was normal at the time of the incident.

18. The 3rd ground is that the judge erred in finding that the applicant had the necessary intention to cause grievous bodily harm. This ground is untenable. The judge made a finding of fact that the applicant deliberately fired the gun at the victim. He must have realised that it was a virtual certainty that the victim would suffer serious bodily injury.

19. The 4th ground complains that the judge erred in holding that the victim gave his evidence in a dispassionate and entirely fair way. Examples are then taken from the record. There is nothing in this ground. The vast majority of the victim's evidence was supported by other witnesses and the judge had the added advantage of the surveillance tape.

20. The 5th ground criticised the judge for not accepting the applicant's evidence that he had no recollection of having drawn the revolver from its holster and firing it at the victim. As indicated earlier this finding was not contrary to the medical evidence. The medical evidence of dissociative amnesia only related to the aftermath of the incident. There was the evidence of the police officers who attended shortly after the incident that he had recollected what had transpired.

21. There are no grounds to lead us to conclude that this conviction was in any way unsafe or unsatisfactory. The application is dismissed.