HKSAR v. CHENG HONG WAI

CACC 81/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 81 OF 2001

(ON APPEAL FROM DCCC NO. 1077 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Background

1 This is an application for leave to appeal against conviction. The applicant was tried in the District Court before HH Judge Day upon two charges each alleging wounding with intent to cause grievous bodily harm contrary to section 17(1) of the Offences against the Person Ordinance, Cap. 212. The offence is said to have taken place on 7 July 2000 at the On Pak car park, Choi Shun Street, Sheung Shui. There are two counts because there were two victims, a Mr Wong and a Mr Ko. The applicant pleaded not guilty to both counts, but in February 2001 was convicted on each and was sentenced to six years' imprisonment on each charge to run concurrently, a total of six years. No application is made in relation to sentence.

2 The sole question in the case was identity, in other words, did this applicant take part in the assault on Mr Wong and Mr Ko, for it is accepted that the assault indeed took place. The applicant's case to the police - for he did not give evidence at his trial nor was evidence called on his behalf - was that he was in the area at the time, had himself been attacked near the car park in which the prosecution witnesses had been attacked, that he himself had been attacked by a sole attacker who was wielding a knife whom he then disarmed, and that he, the applicant, had then jettisoned the knife near this car park.

The evidence

3 It was accepted that Mr Ko and Mr Wong and a Ms Wan arrived at the car park in the morning at about 10.20 a.m. and were about to sit in Mr Wong's vehicle, which was parked there, when they were approached by two men, each wielding a long knife. We have seen photographs of the knives found near the scene, and they are virtually identical. Mr Ko's evidence was that the applicant was his attacker, and that the other assailant attacked Mr Wong. There was some disparity as to what was said at the time of the attack, though it was thought by the victims that it was money that was wanted. Both men were chopped, and severe injuries occasioned to their arms and shoulders, and they collapsed. Ms Wan ran to the caretaker who was at the car park entrance and help was summoned. The two men ran off, one of them dropping a knife in the car park.

4 One of the officers to receive a call for assistance was a Sergeant Chong, and he was by a bridge in the vicinity of the car park, when he saw two men walking hastily away, in the direction of the Tsung Pak Long Village, and underneath a footbridge. One of them had his left hand covered by a black cloth, and we pause to say that this turned out in due course to be a black shirt belonging to the applicant, who was one of these two men, and who was at that stage bare chested. The officer described the day as clear and sunny. He was in uniform. He shouted out to the two to stop and he said that he was the police. The two men turned to look, and they then started to run. The Sergeant gave chase, and called for assistance on his beat radio. After about five minutes the two men were stopped by other police officers, coming towards them. He, the Sergeant, arrested this applicant's companion, a man called Ngan, and that man's hand was cut and he had bloodstains all over him. It is pertinent to note that the evidence of the Sergeant, particularly the evidence that the two men ran upon being called, is not the subject, and was not the subject, of challenge.

5 Another prosecution witness was the officer, PC51284, who arrested this applicant. He saw the two men running, in his direction it so happened, and he told them to stop and it appeared to him that they were then about to run in different directions. He arrested the applicant, and after he had been arrested and cautioned, the applicant said to the officer: "Ah Sir, I just defended myself, I was attacked by someone." He said that he had been attacked by someone in an open car park opposite Choi Yuen Estate. He did not know why he had been attacked. He had gone to the car park with his friend, and he saw a man holding a knife, and he and his friend had a fight with that man; and he, the applicant, snatched the knife, or they snatched the knife, and ran away. The applicant said he dropped the knife in the bush beside the open car park at the railway station. He then led the police to a place not far from the car park, where a knife was recovered. This knife and the other knife recovered from the car park itself are the two knives to which we had referred as being very similar to each other, and we would add that they were precisely the same brand.

6 At an identification parade three weeks later, Mr Ko identified the applicant as his assailant. Neither Mr Wong nor Ms Wan made a positive identification. As against Mr Ko's identification, it is the fact that he had told the police that the person who had attacked him had worn a blue striped shirt, and in evidence he said his attacker wore a striped shirt; yet it is common ground that the shirt worn by the applicant that day was plain black. Mr Wong had said that the person who had attacked him had worn a yellow top, he thought, but he was not sure, and it is also common ground that the man Ngan wore a patterned shirt which was not yellow. We have a photograph of that shirt. It is black and white, and the pattern very distinctive.

The judge's approach

7 These factors, the question of the shirt colour or pattern, and the failure of two of the witnesses to identify this applicant, and the dangers of identification evidence, were all recited by the judge in his Reasons for Verdict. In the course of passages dealing with the dangers of identification evidence, he said:

"The defendant in this case was arrested shortly after the attack and in the neighbourhood of it. For Mr Ko to pick that man out of a line of 9 would be a remarkable coincidence were he not the assailant. He was certain that his identification of the defendant was correct. It was made only three weeks after the incident. The attack was on a clear sunny day, with nothing to obstruct his view." (Tr. p. 14)

He decided that Mr Ko was a keen and persuasive witness. However, despite this, he specifically recognized that the attack was short in duration, and sudden, with an undoubted effect on Ko, with bad injuries and, therefore, he said:

"Circumstances like this compel caution and whilst Mr Ko may be right when he says it was the defendant who attacked him, I would not want to convict on this alone." (Tr. p. 15)

8 The judge then recited the evidence about the shirt, or shirts, and again recognized that he had to be very careful, given the significant differences to which we have alluded. That said, the judge reminded himself that Ko might well not have been in the best condition to recall details such as shirt colour or pattern, and the judge also recognized that whilst the applicant's companion was injured when arrested by the police, there was no evidence from the complainants in this case that their assailants had been injured.

9 The judge noted that the applicant and the other man ran when a uniformed officer called out to them; he noted that they were in the general area of the attack; and that they were as he put it 'bloodied'. He said that he did not take their flight as an admission of guilt, but it was evidence that was relevant to the case.

10 The judge took the view that the statement made by the applicant to the police assisted the prosecution, and the judge then made the following extensive comments about the evidence in this case, and his view of it:

"[The defendant] said he was attacked at a car park opposite Choi Yuen Estate. The sergeant told me there are two car parks adjacent to each other, one is opposite Choi Yuen Estate and the other is On Pak car park. His statement puts him in the general area at the time of the attack. Am I to believe there were two knife attacks at the same time in the same area? He said one man attacked him and his companion, and yet two knives were found. Another coincidence?

The two knives found look identical. They are the same size, shape and weight. They both bear the maker's name - 'Victorinox' - and number - 5.7400.36 - and both have wooden handles wrapped comprehensively in brown cloth sticking plaster.

One knife was found in the On Pak car park (plainly the one dropped when the attackers ran, whether or not the victims could identify it. How many knives are there lying around in car parks?) and the other in the grass by the On Pak car park, near the railway. The latter is in the general direction in which the assailants fled. Given their appearance and where they were found, I am satisfied that these were the two knives used to injure Mr. Wong and Mr. Ko. The defendant told the officer that having snatched the knife from his assailant he discarded it in the grass, near the railway, by the car park. Unless the ground in that area is littered with identical knives (which the police search did not reveal), the one he said he threw away was one of the knives used in this case.

The prosecution show two men seriously injured by two men wielding knives. One witness identifies the defendant as his attacker in an identification parade. One knife is dropped in the car park while another, pretty well identical, knife is found outside the car park in an ara to which the assailants ran. The defendant and a companion are seen hurrying away from the same general area soon after the attack. When they see a police officer they run. They are bloodied.

When arrested the defendant gives an statement which is unlikely to be true (one attacker, two knives), but in which he agrees being in the same general area as the attack and in which he says he dropped a knife in the area where a knife was found. That knife is virtually identical to the one found in the On Pak car park, a knife I am satisfied was used in the attack.

The appellant chose not to give evidence in order to offer some innocent explanation. In the case of The Queen v. Shung Shui Sing there appears the following passage in the judgment of the Full Court delivered by Hogan CJ:-

'No accused is under any compulsion to give evidence on his own behalf or, in any but the most exceptional circumstances, to shoulder the onus of proving his innocence, but where the prosecution have established facts from which a tribunal might reasonably infer [a fraudulent intent,] it does not lie in his mouth to complain if such an inference is made and if this inference is reached more readily because of his decision not to offer the tribunal the benefit of his version [of his intentions]. In this connection, reference may be made to R. v. Shampal Singh when the Privy Council said:-

When the prisoner, who is given the right to answer this question, choses not to do so, the court must not be deterred by the incompeteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculation upon what the accused might have said if he had testified.'

Shung Shui Sing was referred to by the Court of Appeal in LAM Tsz-wah v. The Queen where the court said:

'... since the applicant chose not to go into the witness box to explain the circumstances ... he cannot complain if a proper inference is drawn, and if it is drawn more readily in view of his election.'

The prosecution evidence is overwhelming. The only reasonable inferences to draw from the proved facts is that the two attackers were this defendant and his companion.

Both victims were seriously injured. The weapons used and the peremptory and vicious use of such force as was used in this case can only demonstrate an intent to inflict such injuries." (Tr. pp. 17-19)

The Grounds

11 The grounds of appeal are, in essence, these:

(1) That the judge was wrong in not holding that the prosecution had failed to establish a prima facie case.

(2) That whereas the judge said that there was evidence that the applicant was bloodied when arrested by the police, that was an incorrect factual finding.

(3) That the judge was wrong to say that the statement made to the police offered positive assistance to the prosecution, particularly as the judge failed to take sufficient account of the fact that a knife was indeed discovered at the place where the applicant had said he had discarded it.

(4) The judge erred in speculating how Ngan had come by his injuries, a relevant error it is said since there was no evidence that either assailant of Mr Wong and Mr Ko had suffered injury; and

(5) That the judge erred in holding that he could infer more readily the guilt of the applicant in the absence of any innocent explanation in the witness box.

The attackers' route

12 In a point taken at the outset of today's hearing, and developed extensively in the course of argument, Mr Mullick, who appears on behalf of the applicant, suggested that there was a clear explanation in this case which the judge had not addressed, and which counteracted the judge's approach to the case - the judge expressing scepticism about the idea of two separate attacks, assuming the applicant's account to the police upon arrest were correct, namely, one by two men with two knives in the car park, the other by one man with one knife on the applicant outside the car park; yet only two knives being found by the police, each of exactly the same type, in the same area. Mr Mullick says that the evidence showed that one attacker left the car park from one entrance and the other from the other entrance, or exit, of the car park which second exit was near to the point where the applicant says he was attacked. It was therefore perfectly possible, says Mr Mullick, that this same individual leaving from that second exit was the one who attacked the applicant and his companion. The difficulty with this argument is that it does not reflect the judge's findings of fact. The judge recited evidence of the victims to the effect that both attackers fled together out of the one exit, namely, the pedestrian exit, past the very place where the knife jettisoned by the applicant was found. There is no basis upon which we could justifiably gainsay the judge's finding which expressedly recited the evidence of the complainants. The fact that the knife inside the car park was found slightly in the other direction is, in the context of the events in this case, neither here nor there. The point now taken was, self-evidently from the Reasons for Verdict, not canvassed in the court below, no doubt for very good reason.

Support for identification

13 Mr Mullick, on behalf of the applicant, says that whilst the judge was correct to say that he could look for support for the correctness of the identification, the judge erred in the items which he utilized as such support. He argues today that there is much to counteract, rather than to support, the identification by Mr Ko. We agree, but that is not to the present point, because the judge was well aware of those factors, and expressly recited them, and warned himself of the dangers arising in the case. In his skeleton argument, which he adopts, Mr Mullick points to the fact that one of the matters the judge relied on was the suggested fact that the applicant and Ngan were 'bloodied'. It is contended that there was no evidence that the applicant was bloodied.

14 One has to look at points such as this realistically. There was blood on the man Ngan, and there was blood on the applicant's shirt, though that was wrapped round the hand of his companion. Ngan was in the close company of the applicant, and had been throughout the time the police had observed him. The fact that they were bloodied, if they were, is not used in context by the judge to suggest that the applicant himself must have been cut, or must have cut someone else, but is mentioned in order to show that there was blood about these men, as indeed on any view there was, even if one of them was personally wholly unmarked. The significance of the comment by the judge about blood is this: that where there has just been an attack with knives in area A, and two men are running away, in the vicinity, when they see police, who are calling out to them to stop, the fact that one of them is bleeding and has the other's shirt to stop the blood, is an additional factor which tends to suggest, on its face, that the men may very well have been involved in the attack at area A, an attack with knives. That is the point of the judge's comment, and it was unnecessary in that context for him to draw fine distinctions as to who was bleeding.

One attacker, two knives

15 Mr Mullick then points to another supposed error by the judge. He says that the judge attributed a statement to the applicant, which the applicant in fact never made. The point arises in this way, at page 18 of the Reasons for Verdict:

"When arrested the defendant gives a statement which is unlikely to be true (one attacker, two knives), but in which he agrees being in the same general area as the attack and in which he says he dropped a knife in the ara where a knife was found. That knife is virtually identical to the one found in the On Pak car park, a knife I am satisfied was used in the attack."

Mr Mullick points out that the applicant never suggested that the attacker had two knives.

16 Passages in reasons for verdict are not to be read as a statutory instrument but in context, and taking into account as well a judge's literary style. It seems clear enough to us that the judge well recognized that the applicant was not saying that there had been two knives used by the one attacker who, he says, attacked him. The fact that the judge was well aware that the applicant was talking only about one knife is apparent from the phrase at p. 17 of the reasons for verdict where the judge says:

"Am I to believe there were two knife attacks at the same time in the same area? He [the applicant] said one man attacked him and his companion, and yet two knives were found."

The judge is clearly saying that if only one knife was used in the suggested attack on the applicant, how odd it is that two knives were found; the only alternative is that two knives were used on the applicant and his companion, which does not make sense if there was but one attacker. That is the effect of these passages, read realistically and together.

Inferences

17 Then there is a complaint that the judge always chose the inference adverse to the applicant when there were choices to make; particularly as to how Ngan might have suffered his hand injury. That complaint is not, with respect, supported by an examination of the judgment. The judge acknowledged that there was no evidence that either of Wong and Ko's assailants were injured in that attack. The judge concludes that there are endless possibilities, and that it is not for him to speculate, and that it seems to him that the fact of Ngan's injury helps neither side; that the most that could be said is that the injury to Ngan might support the applicant's story, but equally it might support the prosecution case. That being so, the judge was not entitled to conclude that it was an injury that must have been sustained in the attack on Wong and Ko, and he does not do so.

A mixed statement

18 As for the suggestion that the judge was wrong to say that the applicant's statement to the police gave positive evidence to the prosecution, it is difficult to follow the complaint. We think it self-evident that the statement to the applicant furthered the prosecution case. By that statement the applicant was not saying, for example, that he and his companion had been picnicking, and that Ngan had fallen over cutting his hand. The applicant was placing himself as the subject of a fracas, when it was known that the fracas or an attack had just taken place. He was placing himself as the subject of an attack where a knife had been used, where it was known the attack on Wong and Ko was an attack with knives; and he was placing himself and Ngan as the subject of an attack in the very area in which Wong and Ko had been attacked by two men; and he told the police where he had jettisoned a knife and that happened to be the area of the attack on Wong and Ko. It would be odd indeed to treat this statement as anything other than mixed in its real potential.

The failure to give evidence

19 There is, finally, the point concerning the applicant's failure to give evidence, and comments made by the judge about that. This ground of appeal was settled before the decision of the Court of Final Appeal in Hong Kong SAR v Li Defan [2002] 1 HKLRD 527. With the considerable advantage of the judgment in that case, we are satisfied that the principles there enunciated, when applied to the evidence in this case, inure to the disadvantage of the point now taken by the applicant. Mr Mullick's point as we understand it, is that in this case, there was nothing for the applicant to explain. We do not, with respect, agree. In this trial by a professional judge sitting alone, the defence case involved alleged facts which, if true, were within the knowledge of the applicant, and it was a case which asserted facts additional to the prosecution case, in the sense that he was suggesting, apparently, that there was another very similar attack at or almost at the same time as the attack leveled against Wong and Ko, and which version was exculpatory. So, too, there was evidence of the prosecution that the applicant had jettisoned a knife after an attack rather than, as one might expect in such a circumstance, taking the knife to the police, and more particularly that the applicant had run away with Ngan when approached by the police, a piece of evidence clearly capable of supporting the prosecution case, yet for which there was offered no explanation at all, either in the statement to the police or in oral testimony. The judge had before him a number of pieces of evidence, which is not necessary to recite again, and he took the view that they led to a conclusion, and that he was entitled in the absence of an explanation by the applicant as to the circumstances in which he was found so soon after the events in the place, and as to the condition in which he and Ngan were found, to make that inference; one which could more safely be drawn because the applicant did not support his hypothesis advanced in the exculpatory parts of his statement, with oral testimony. There were clearly matters wholly within the knowledge of the applicant, including the answer to the question why he ran away.

Conclusion

20 There were other detailed points taken such as one relating to the amount of money found on the applicant. We do not intend to deal with each, but suffice it to say that they cause us no concern about the safety of the conviction. The suggestion that there was inadequate evidence to found this conviction is a suggestion which does not withstand full examination. We do not think that the complaints in this application are made out and, accordingly, the application for leave to appeal against the convictions is dismissed.