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CACC000025/1996
IN THE COURT OF APPEAL
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THE QUEEN |
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WONG FU-KEUNG |
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Coram: Hon. Power, V.-P., Bokhary & Ching, JJ.A.
Date of Hearing: 22nd August 1996
Date of Judgment: 22nd August 1996
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JUDGMENT
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Power, V.-P. (giving the judgment of the Court):
1. The applicant pleaded not guilty to wounding with intent and resisting arrest in the District Court. He was found guilty after trial before Judge Christie. He now seeks leave to appeal against those convictions.
2. The victim of the wounding was attacked at about 4:10 a.m. by a group numbering 6 or 7 persons armed with knives outside 33 Mongkok Road. Having been chopped in the neck he ran across the road in an attempt to escape. He ran into Portland Street and fell to the ground. While on the ground he felt further chops, but at that stage lost consciousness.
3. PC51750, who was PW3 at trial, was on board a patrol car when he saw the chase in Portland Street and the further attack. He ran to the scene and the two persons involved then ran off. D1 ran in one direction and the other person, whom he described him as wearing a blue long-sleeved shirt and blue jeans and carrying a knife about 20 inches long, in a different direction. D1 was apprehended after a short chase. Meanwhile the other man had run into a building at 329 Portland Street.
4. Another PC 3516 (PW4) upon receiving information went, with a sergeant and PC 50206, into 329 Portland Street to search for the man who had gone into those premises. During the search the three officers entered the Che Mei Japanese Style Massage Parlour where, according to PW4, the following occurred:
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"Chu Kin Lo (the person in charge of the massage parlour) opened the door for me. He was in charge of the massage parlour. I made inquiries of him and he told me somebody. As a result I and the other officer went to look for a person inside the massage parlour. In particular to Room 7. I clapped the door and asked for entry. I opened the door and no one was inside. I found blue shirt and jeans.................. |
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I continued to search other rooms. When I came to the bathroom, the door was closed. I clapped on the door asked for entry. There was no response. I therefore opened the door. I saw a male inside. He only had a towel wrapped round the lower part of his body. There was nobody else. |
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I asked that man 'Why didn't you open the door after I shouted such a long time. Now the police are investigating a case. At the time he told me because he'd been having a shower he could not open the door immediately...................... |
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I noted his hair and body were dry. He did not appear to be having a bath. So I questioned him further. I asked him what his name was, when he came up and if he came up alone. |
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He told me he was Wong Fu Keung and that he'd just come up, alone. |
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He was not wearing anything other than the towel. I asked him where his clothes were. He said in Room 7. |
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So I went to Room 7 with this Wong Fu Keung. I placed at the blue shirt and jeans on the bed and asked Wong Fu Keung if they were his clothes. |
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He answered 'Ah Sir these clothes are mine.' I then told 50206 to search the clothes. He found a wallet in right rear pocket of jeans. There were an identity card in name of Wong Fu Keung inside. |
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I told Wong Fu Keung to put on his clothes. After, he was asked where he'd gone to before coming up there. Wong Fu Keung said he'd just danced at Sun Ngai Shing account and after he went there to shower. |
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Since I found the clothes matched the description of 20609, I believed Wong Fu Keung was involved in the case of wounding therefore I declared his convert. Wong Fu Keung said 'Ah Sir I never did that how could I chop people with a knife'." |
When he was about to handcuff him the applicant attempted to rush out the doorway and the P.C. subdued him with the help of PC 50206.
5. The applicant neither gave nor called evidence. In our view the issue was squarely stated by the trial judge when he said:
"The issue is whether the cumulative effect of the circumstantial evidence excludes that possibility, and forces the inference that D2 was the man the police pursued to the staircase."
When considering the circumstantial evidence the judge took into account, inter alia, the time of the applicant's entry to the building and to the massage parlour, which he was satisfied was consistent with his having been one of the attackers, and the fact that the massage parlour was open and accessible to anyone seeking entry thereto. The judge accepted the evidence of PW1, PW2 and PW3 that the clothing of the culprit matched the applicant's clothing which was found in the massage parlour. Fairly, however, he observed that because blue jeans are common, he would give little weight to that item but he did give some weight to the evidence that the applicant's clothing included a dark blue shirt with long sleeves. The trial judge was scrupulously fair in this regard as he would have been entitled to have given some weight to the combination of the two garments but he placed no reliance thereon. He properly bore in mind that there were no bloodstains on the clothing of the applicant and that no weapon was found. He accepted and gave weight to the evidence of PW5, the manager of the massage parlour, that the applicant was breathing heavily upon arrival. He was satisfied that this was consistent with his having run up the stairs to the massage parlour. He said that he was prepared to give little weight to the failure to respond to PW4's request that the door be opened. It might be thought surprising that the judge was not prepared to give any weight to the evidence of PW4 that the applicant did not show any signs of having showered as he claimed he had. The judge further, properly in our view, gave little weight to the attempt to escape stating correctly that it was capable of more than one explanation. The approach of the trial judge to the circumstantial evidence was impeccable and was, indeed, exemplary in its fairness. He said finally:
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"In weighing up the circumstantial evidence, I take most account of: the near coincidence in timing of entry; the matching of clothing (shirt); and that D2 was breathing heavily on entry. |
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Does the cumulative effect of this evidence lead to the irresistible inference that D2 entered the massage parlour after being chased into the building, and to the exclusion of the possibility that he was not the culprit but entered the building just before the culprit did? |
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I find that it does. I draw the inference. I find D2 joined in the attack on the victim and fled into the massage parlour at 329 Portland Street. D2 is guilty of Charge 1." |
He was also satisfied that he had resisted arrest.
6. The applicant before us has submitted that the trial judge should not have been satisfied that he was involved because he says that the evidence shows that he was in the massage parlour at 4 o'clock, some 10 minutes before the assault occurred. The evidence of PW5, upon which he relies, does not establish any such thing. Upon a fair reading of it what he says was that at about 4 o'clock he let the applicant into the massage parlour and that about 5 minutes later the police arrived. There is nothing in this evidence which gives him any real assistance. The evidence against the applicant, although circumstantial, was compelling and we are satisfied that the conclusion to which the trial judge came was a correct one.
7. The application for leave to appeal against conviction is, therefore, refused.
| (N.P. Power) |
(K. Bokhary) |
(Charles Ching) |
| Vice-President |
Justice of Appeal |
Justice of Appeal |
Representation:
Applicant in person.
Mr. A.A. Bruce, Q.C. and Mr. I. Tam, C.C. (Crown Prosecutor) for the Respondent.
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