HKSAR v. NG TAI HEI AND ANOTHER

CACC 130/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 130 OF 2000

(ON APPEAL FROM DCCC 1106 OF 1999)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 13 March 2000, the Applicants (D1 and D2 respectively) were convicted in the District Court after a trial before Judge Davies on a joint charge of wounding Chan Kwai-hing (PW1) with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212. They each now seek leave to appeal against conviction.

Background

2. D1 and D2 are brothers. They knew the victim (PW1) and his brother (PW2). There was bad feeling between the two sets of brothers. About six months prior to the incident giving rise to the present charge, PW1 had pleaded guilty to assaults occasioning actual bodily harm to D1 and D2 for which he was fined at Tsuen Wan Magistrates' Court. Whether it was because the penalty was considered inadequate or for some other reason, the bad blood resurfaced in Tai O, Lantau, on 29 July 1999.

Prosecution's case

3. The prosecution's case was that after PW1 and PW2 left a restaurant in Market Street, Tai O, which had earlier been patronised by D1 and D2, they were set on by the defendants as they made their way to their car. PW1 was singled out for attack. Using iron rods to hit him, they caused four deep lacerations to PW1's head and a further wound to his right middle finger. There were a number of less serious injuries caused to various other parts of his body. Despite the severity of the attack, PW1 managed to escape by jumping into the river and swimming across it.

4. D1 was arrested about a week later and admitted assaulting PW1 during his interview with police. On the following day, D2 gave himself up and similarly admitted assault. However, in the versions which they gave to the police, they denied the existence of any weapons in the assault.

Defence case

5. D1 gave evidence in the trial claiming that he and D2 had merely been spectators to the incident. He stated that he saw eight to ten others assaulting PW1 and that while he was watching, PW2 came at him with a spade and chased both himself and D2 out of the crowd of onlookers. A female defence witness was called in support of this story. D2 did not give evidence.

Grounds of appeal

6. Against this background, it has been submitted in the first two of four original grounds of appeal that the judge failed to resolve a number of discrepancies in PW2's evidence.

7. We do not consider it necessary to look at these so-called discrepancies in any depth as it is apparent that the judge, where important discrepancies were concerned, had these in mind when he delivered his verdicts. His appraisal of the evidence was nothing short of fair and accurate.

8. In what was characterised as a discrepancy, it was submitted that PW2 had not mentioned in his witness statement the fact that he had picked up a spade in an effort to defend his brother (PW1) from attack. We accept that this is perfectly true. He had apparently not done so. However, it was an integral part of D1's evidence that PW2 was carrying a spade. There was no issue about this in the trial. It is small wonder, therefore, that PW2 was never cross-examined on this omission from his statement. It is equally not in the least surprising that the judge never thought to mention it in his Reasons for Verdict, even assuming that he was made aware of the omission from the witness statement which is far from clear on the papers before us.

9. The judge concluded that this case crucially concerned the credibility of PW1 and PW2. It was not an identification case as such. The real question to be determined was whether or not PW1 and PW2 had truthfully pointed the finger at D1 and D2 who were both well known to them by sight. The judge's approach was entirely correct and the criticism made of the judge that, in assessing the credibility of PW1 and PW2, he failed to resolve a further so-called discrepancy is in large measure answered by the briefest recitation of the circumstances. This was a reference to an omission by PW2 to any reference in his witness statement to the fact that he had seen the defendants in the restaurant prior to the attack. However, the judge specifically referred to this aspect of the case when he said that support for PW2's testimony that D1 had been in the restaurant was provided by D1's own cautioned statement which made specific reference to an earlier confrontation between the parties at that location. Giving Mr MacKenzie-Ross credit where it is due, he accepted during the course of argument that this particular point perhaps took him no further forward. Putting it shortly, the criticism was altogether unfounded.

10. Amongst other criticisms which have been made, it was also suggested that the location of a number of bloodstains on the ground cast a doubt on the precise location at which PW2 had described the attack as having taken place. This, again, is a point without substance. PW1 had to run down a number of small lanes to get away from his assailants, and it would have been most surprising if he had not lost some blood on his escape route to the river. The location of the bloodstains was of no importance whatever when they are examined in the full context of the evidence in the trial.

11. The third and fourth grounds of appeal alleged that there was a material irregularity in the trial because a computer record made by the police was disclosed to the defence too late for a witness to be found to prove its contents and that the contents, if they had been proved, would have undermined PW2's credibility.

12. The record in question referred to PW2 as having received an injury in the course of the incident. PW2, for his part, stated in evidence that he was uninjured. It was submitted, therefore, that the record cast a doubt on PW2's credibility and that the prosecution's failure to locate the source of the information denied the defence the chance to discredit PW2.

13. In fact, the judge went out of his way to accommodate the defence so far as he properly could and the record was made an exhibit (P13) on the last day of the trial. When the judge gave his Reasons for Verdict a week later on 13 March 2000, he had this to say about the matter:

"Defence counsel came into possession of computer-recorded details of apparent complaints and information supplied to the police concerning this case. These were details received by way of the police console and then entered into the police computer. In particular, these entries include details indicating that not only had PW1 been injured during this incident, but that PW2 had also sustained slight injuries, namely to his hands and also a bruise to his neck and that he had declined to have them treated.

With a view to undermining PW2's credibility, defence counsel, with my permission, recalled PW2 for further cross-examination. PW2 denied sustaining any injury during this incident or to having complained of any such injury to anyone. No one has been found to explain how these entries came to be made. No police officer has been able to assist in this regard. I was urged by defence counsel to accept these computer records into evidence, notwithstanding that their source or authenticity could not be traced or satisfied, for the reason that PW2's credibility is of vital issue here. As the entries form part of police records and were independent of the parties, I was reluctant to exclude them out of hand until all avenues had been explored concerning their source and authenticity. These entries, when produced, were hearsay and subsequent to PW2's denials, they have remained hearsay. I do not therefore feel that any weight can be given to them.

I remain satisfied as to the veracity of PW2's evidence."

14. To this extract should perhaps be added the plain fact that at no stage was it alleged by the defence or by anyone who testified that PW2 had actually been assaulted either by the defendants or anyone else so that the matter was of peripheral importance in any event.

15. In two additional grounds of appeal, it was alleged that further time might have been given to the defence to investigate this aspect of the case and to examine other police notebooks which might have had some relevance to the police console report. During today's proceedings, an adjournment was sought, this having been foreshadowed by letter only yesterday. Mr MacKenzie-Ross applied for time in which to prepare further evidence for the purposes of an application under section 83V of the Criminal Procedure Ordinance.

16. The matter was developed at length and, in the result, we refused the application for an adjournment. It became clear that at the trial, two relevant police officers' notebooks were given to the defence to examine and that they were not called to giver evidence. This Court then investigated, through Mr MacKenzie-Ross, what it was that the evidence, putting it at its highest, might be expected to produce. It became abundantly plain that there was no material which could really assist the defence.

17. Police console reports frequently provide information which is notoriously inaccurate. By way of example, taken from p. 128 in the appeal bundle, one of the first entries in the console report relates to a member of the public providing information that a "robbery" had been committed. Of course, nobody has ever suggested that this case was even remotely connected to robbery, but the fact is that an informant who had observed what had gone on believed that this is what it was.

18. The console report goes on to refer to four males holding iron bars and spades assaulting the "injured person". Again, this was a report, no doubt genuinely made by someone, but the only person holding a spade on the evidence before the court was PW2. He, of course, was the brother of the injured person who was trying to rescue his brother. We do not need to give further illustrations about the inaccuracies that are likely to be included in early reports made to the police by various informants.

19. The judge gave a very considerable degree of latitude to the defence in view of the importance defence counsel, who was not Mr MacKenzie-Ross, had attached to this aspect of the case. But when all is said and done, this was a very minor point in a case that involved a very simple issue. The judge was well aware of the point that had been raised by the defence and, in the end, although the judge did not refer to it as such, we consider that it was a complete red herring.

Conclusion

20. We are satisfied that the convictions against D1 and D2 were in no sense unsafe or unsatisfactory. On the contrary, their guilt was firmly established on evidence which the judge was fully entitled to accept as having been reliably put before the court.

21. Accordingly, the application is dismissed.