HKSAR v. SINGH MANJIT

CACC 455/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 455 OF 1999

(ON APPEAL FROM HCCC NO. 398/1998)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

Introduction

1. The applicant SINGH Manjit who was D1 at the trial was jointly charged with SINGH Gurdeep, (D2) in an indictment containing one count of attempted murder and an alternative count of wounding with intent contrary to s.17(a) of the Offences Against the Person Ordinance, Cap.212. They were tried before Suffiad J and a jury in the Court of First Instance. The applicant was convicted of the alternative count of wounding with intent but acquitted of attempted murder. He was sentenced to 7 years imprisonment. D2 was acquitted altogether. We are not concerned with D2 and only mention him by way of background information. The applicant now seeks leave to appeal against both conviction and sentence.

Prosecution's case

2. The victim in this case is SINGH Sukhmander. He gave evidence that at about 3.30 am in the early morning of 27 August 1998, he was returning to his home at 277 Shanghai Street with his wife and his brother-in-law, Balwant Singh after they had finished work in a night club in Tsim Sha Tsui. When they got to the main door of 277 Shanghai Street, the victim took out his keys to open the gate. Avtar Singh and three other men, whom he did not know, came out from underneath a container lorry which was parked outside the building and started to attack him with choppers. He said all the four men had choppers and one of them also held a bottle. He fell to the ground and as a result of the attack, he suffered severe injuries to his two hands, his forearm, his neck and his back. The deep cut to the forearm, according to Dr Abeysuriya who examined him, was life threatening. The assailants ran away and the victim was later taken to hospital.

Identification - the sole Issue

3. The issue as identified by the judge is whether the applicant took part in the attack of the victim who was PW1 at the trial. The judge went on to identify the evidence against the applicant. He said at p.10D-P of the summing-up:

"The evidence relied on by the prosecution, insofar as the 1st defendant is concerned, comes from, firstly, the identification of the 1st defendant by the second prosecution witness, Balwant Singh, at the identification parade as one of the attackers; secondly, the independent evidence from Constable 49730 and, to a lesser extent, the evidence of WPC55609 that the 1st defendant was seen by them running along Temple Street at approximately 3.50 am on the morning of 27 August.

From this you would undoubtedly have appreciated that this is a trial where the case against the 1st defendant depends wholly, or to a large extent, on the correctness of the identification of him by the second prosecution witness, Balwant Singh, which the defence alleges to be a mistaken or wrong identification. I must, therefore, warn you of the special need for caution before convicting the 1st defendant in reliance on the evidence of identification."

Following this, the judge gave a full direction to the jury in terms of R v. Turnbull [1977] 63 Cr App R 132, and drew their attention to the specific weaknesses of the evidence.

Evidence of Identification

4. PW2, Balwant Singh, was the brother-in-law of PW1, the victim. He said that at the time they arrived home, there was a container lorry parked outside the building. When the victim was taking out his keys to open the gate, he saw Avtar Singh and three men suddenly came out from the end of the railing. All four of them were holding choppers and one of the men also held a bottle. Avtar Singh used his chopper to attack the victim first. He chopped the victim on his left arm. The others were pointing their choppers at the victim. The witness became scared and ran off to Wing Sing Lane, and as there was no one chasing after him, he stopped there and turned round to watch what was going on. He saw all the four men chopping the victim until the victim fell down to the ground. The attackers then ran off. He said that the attack lasted some two to three minutes and was continuous. After the attackers had run off, he returned to the scene of attack and helped the victim up. He then took the victim to the police station to make a report.

5. PW2 attended an identification parade at Tsim Sha Tsui Police Station on 28 August 1998 and from a line-up of 14 men, he picked out the applicant as one of the attackers of the victim. He said that the applicant had attacked the victim with a chopper. He knew the applicant in India since childhood before they came to Hong Kong and his name was Phagwan Singh. He said that the applicant changed his name after he came to Hong Kong. This witness was extensively and vigorously cross-examined by defence counsel but he insisted that he was sure that the applicant was one of the attackers. He agreed that that part of the street was dark because the container truck had cast a shadow over it.

6. Constable 49730 was the eighth witness and the officer who arrested the applicant. He was attached to Yau Ma Tei Police Station and in the early morning of 27 August, he was on patrol with WPC 55609 in uniform in the vicinity of Temple Street. From inside the 7-Eleven Store, he saw three men running along Temple Street, coming from his right hand side and going in the direction of Wing Sing Lane. They were either Indian or Pakistani in origin. The one running in front was holding an object, rectangular in shape, and about one foot long and when this man ran past 42-44 Temple Street, he discarded this object into a pile of rubbish. He and the woman police constable began to follow the three men, keeping a distance of about six feet from them. The men ran along Temple Street, turning into Wing Sing Lane and then into Arthur Street and began to accelerate their speed. They turned into Man Ming Lane towards Nathan Road. This witness caught up with one of the men who was running last and intercepted him. He also said that he was the man who had earlier been seen to throw an object into the rubbish heap. He identified this man as the applicant who was looking extremely nervous and panting. The two other men had run into a rear lane just off the MTR entrance. The woman police constable gave confirming evidence and also said that she later recovered the object thrown into the rubbish heap by the applicant. This was a chopper and it was produced as exhibit P2. The chopper was found to have some blood or blood stains on it. There is no need for us to deal with her evidence in any detail.

7. This is a summary of the evidence on the identification of the applicant that he was one of the men who attacked the victim.

Grounds of Appeal

8. The applicant did not give evidence or call any witness. There are a total of 7 grounds of appeal and we have been informed that Ground 7 would not be pursued. We will take them in the order set out in the Perfected Grounds of Appeal against Conviction.

9. The first ground is that the learned judge erred in rejecting a submission of no case to answer because the identification was tenuous and generally unsatisfactory. This main heading is divided into four sub-grounds from (a) to (d) with reference to page numbers in the summing up and the transcript.

10. In the light of the facts and evidence which we have summarized in the preceding paragraphs of this judgment, we are totally at a loss to see how this ground can be argued. There is not the slightest merit. The evidence before the judge at the conclusion of the prosecution case was not just sufficient to establish a prima facie case for the trial to continue before the jury, the evidence, viewed as a whole, was in fact so formidable that a reasonable jury, properly directed, would have convicted in the absence of any other evidence. Nothing is to be gained from dwelling on this ground which, we regret to say, has been grossly misconstrued and misconceived. The judge was absolutely correct in his ruling of a case to answer. It would be a grave error of law on his part if he had decided otherwise.

11. All the points raised in the sub-grounds were matters for the jury and these the judge dealt with in his careful summing-up. At p.12H-Q, the judge said:

"I must remind you that there are many aspects of the second prosecution witness's evidence which you may feel give rise for concern, and which may affect your ultimate view as to the weight which you may wish to give to his identification of the 1st defendant as one of the assailants. First of all, initially in cross-examination, he said 15 or 20 minutes after the attack, when he was in the police station, he was taken by police to a cell where the 1st defendant was and asked if the 1st defendant was one of the attackers. He told the police that the 1st defendant was one of the attackers. When he was cross-examined the following day by Mrs Panesar, he tried to change that earlier evidence by saying that in the police station he asked to go to a toilet and he was shown to a toilet which was in the vicinity of the cells and, when he was going to that toilet, he saw the 1st defendant in the cells. When he went back after going to toilet, he told the police that the 1st defendant was one of the attackers."

12. Anyone who reads the summing-up carefully will not fail to see that all the matters that Mrs Panesar complained of were placed before the jury and it was for the jury to decide whether they accepted the evidence or not. In our view, the first ground has no merit whatever and we have no hesitation in rejecting it.

13. The second ground is that the learned judge erroneously directed the jury that the evidence of PC49730 (PW8) and WPC55609 (PW9) 'could be strong supporting evidence of the second prosecution witness's identification of the first defendant as one of the assailants'.

14. We will say straightaway that there is no substance in this ground as well. The judge was correct. The evidence of the two officers was so cogent and compelling which, in our view, certainly goes to support the evidence of the identification by PW2.

15. The third and fourth grounds can be taken together. The third ground reads:

"The learned judge failed to direct the jury that the chopper, exhibit P2 was not linked to the assault or the appellant by forensic evidence."

And the fourth ground is in this terms:

"The learned judge failed to direct the jury that absence of PW1's blood or other forensic evidence on the appellant or his clothing was strongly indicative of his absence at the scene of assault."

16. We now deal with these grounds. It is not true that there was no forensic evidence of blood found on the chopper. It is now conceded by Mrs Panesar, who had appeared in the court below and ought to have remembered this, that there was blood on the chopper. It was only because the blood stains were of such a small quantity that it was insufficient for analysis. This Ground 3 therefore fails.

17. We come to Ground 4. Counsel is again not right to say that the judge did not direct the jury on the absence of blood of the victim on the clothing of the applicant. He certainly did and his direction was to be found at page 14F-L of his summing-up. The judge said:

"You will also keep in mind, members of the jury, another important aspect of the evidence which relates to the 1st defendant, and that is, there is positive evidence from the police officers, especially Constable 49730 who arrested the 1st defendant that, both at the scene of arrest and back at the police station, he had checked the body of the 1st defendant and he had found no blood, either on the 1st defendant or on any part of his clothing. Now, if the 1st defendant was involved in the chopping attack on the 1st prosecution witness, you may ask yourself whether or not he could have done so without any blood having spilled on either his person or on his clothes, and this is a matter that you should take into consideration."

18. The judge not only directed the jury on this aspect of the case but he gave a direction which is clearly favourable to the applicant. Ground 4 also fails.

19. We come to Ground 5. This ground reads:

"The jury was not directed as to the presumption of innocence and that there was a serious lurking doubt about the appellant's presence or participation in the assault and the effect of failure to so direct was highly prejudicial because they had been specifically directed that his failure to testify means that there was no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution."

20. This ground raised two questions. Firstly, the burden and standard of proof. In his summing-up, the judge had told the jury in very clear terms that if he did not mention evidence which the jury regarded as important, the jury must follow their own views.

21. At the outset of the summing-up, he took the opportunity to impress the jury upon the question of the burden and standard of proof at p.2I-T where the judge said:

"I shall now deal with two matters which are of fundamental importance in our system of law. One is the burden of proof, the other is the standard of proof. The burden of proving the guilt of a defendant lies upon the prosecution throughout the trial. This burden never shifts. It is for the prosecution to prove the guilt of each of the defendants. A defendant does not have to prove his innocence, or indeed, anything. The standard of proof which the prosecution must obtain, if it is to obtain a conviction, is proof beyond reasonable doubt. This means that the prosecution must satisfy you so that you are sure of each of the defendants' guilt. Nothing less than that will do.

You must not equate suspicion with guilt. Even if you think a defendant is probably guilty that is not enough for you to convict. You must be satisfied so that you are sure that the defendant is guilty before you can convict him. Therefore, if you are in doubt, in other words, if you cannot be sure of his guilt, you must give to that defendant the benefit of the doubt and acquit him. You will do well to bear these two fundamental principles in mind at all times during your deliberations."

22. This was not the only occasion he directed the jury on the burden and standard of proof. He reminded them on several other occasions whenever the opportunity arose. This is an adequate and correct direction and as far as we know, a judge is not required by law or any rule of practice to go any further than this.

23. The second part of this ground complains of the judge's direction on the failure of the applicant to give evidence. The applicant, in this case, did not give evidence at his trial and it was a duty of the judge to remind the jury how they should approach this issue. In the summing-up at p.28 I-P, he said:

"You will remember yesterday that after the prosecution's case, Mrs Panesar said in court that both defendants have chosen to exercise their rights not to give evidence and not to call any witnesses. I must direct you, members of the jury, that both defendants do not have to give evidence. They are entitled to sit in dock and require the prosecution to prove its case. You must not assume that either or both of them are guilty because they have not given evidence. The fact that they have not given evidence proves nothing one way or the other. It does nothing to establish their guilt. On the other hand, it means that there is no evidence from the defendants to undermine, contradict, or explain the evidence put before you by the prosecution. However, you still have to decide on the prosecution's evidence whether you are sure of the defendants' guilt or not."

24. This is a proper direction. It is a standard direction in jury trials. This ground must fail.

25. Ground 6 is framed in these terms:

"The learned judge erred in permitting prosecution to adduce hearsay evidence of PW10, Inspector Cheung Wai-Ming, suggesting of any absence of records of confrontation between PW2, Singh Balwant and the applicant".

26. We fail to see how this ground can be justified. The evidence of the inspector is clearly not hearsay and admissible. There is no merit in this ground.

27. Ground 7 has been abandoned.

Conclusion

28. Having dealt with all the grounds and considered arguments advanced by counsel, we are in no doubt, not even a lurking doubt, that the conviction is in any way unsafe or unsatisfactory. There is nothing in the evidence or in the summing-up that causes us concern. Accordingly, the application to apply for leave to appeal against conviction is dismissed.

Sentence

29. The applicant also seeks leave to appeal against the sentence of 7 years imposed on him by the judge. His grounds are these:

"The sentence of 7 years' imprisonment is wrong in principle and excessive for the following reasons:

(1) The learned judge erred in imposing a deterrent sentence on the first offender.

(2) There was no evidence to suggest that the circumstances in which the offence was committed were prevalent in the Hong Kong Special Administrative Region.

(3) The circumstances of this case did not justify the imposition of deterrent sentence."

30. In passing sentence, the judge made these remarks:

"All four of you, the attackers, were armed with choppers and two of those choppers have been produced at this trial which shows that they are vicious weapons, both from their weight and from their sizes. I have little doubt that this ambush was a premeditated and pre-planned attack by the four of you on the first prosecution witness, Sukhmander Singh.

Whilst there is a background to this matter in the form of a rape case and in respect of which Avtar Singh, being the husband of the victim of the rape, the background may show that Avtar Singh was provoked to a great extent. However, insofar as you are concerned, the very fact that your counsel in her mitigation told this court that you have no personal grudge towards the first prosecution witness, Sukhmander Singh, that itself differentiates you from Avtar Singh in this attack. The basis upon which your counsel puts forward your mitigation is that it was out of misguided or misplaced loyalty to Avtar Singh.

I have also to consider the manner in which the attack was carried out. The ambush was carried out in such a way that the victim, Sukhmander Singh, who was totally unarmed at the time was given no chance whatsoever to defend himself from this vicious attack by the four of you. It is therefore little surprise that he had suffered the injuries that he did."

He continued to say this:

"There must, in my view, be a measure of deterrence to deter attacks of this kind taking place in the streets of Hong Kong."

31. We entirely agree with the judge. This was a vicious and premeditated attack on a man who was not in a position to defend himself. The injuries were extensive and serious and according to the doctor who examined the victim that the cut wound to the forearm was a life-threatening wound. Armed gang attacks carried out for revenge purposes are always serious crimes and should have no place in our society. Offences of this type inevitably call for deterrent sentences.

32. We are satisfied that the sentence of 7 years imposed on the applicant in this case is neither manifestly excessive nor wrong in principle. The application for leave to appeal against sentence is also dismissed.