THE QUEEN v TSUI CHING KWAI

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J U D G M E N T

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Silke, V.P.:

1. The Applicant, Tsui Ching Kwai, was convicted after trial before Her Honour Judge Chua of the offence of wounding with intent contrary to section 17 of the Offences Against the Person Ordinance. He now seeks leave to appeal against that conviction.

2. At about 12:15 a.m. on 8th August 1988 the victim Lo was set upon by five men in a video games centre in Wang Kwong House, Ngau Tau Kok and was wounded. He was wearing a black T-shirt. Those wounds clearly, and this was not contested at trial, fell within the ambit of the section 17 offence.

3. Present at that time in that games centre was Detective Police Constable 22468 who, being unable to sleep, went there to occupy some of his time.

4. The victim was unable to identify and of his attackers. It was his evidence that he was somewhere between machines Nos. 23 and 25, which are on the right hand side of the games centre as one looks at the sketch, exhibit P4, when he was pushed And chopped. He ran to the top of the games centre near a place where the accounts office was situated. He had his back to it, attempted to protect himself by his arms but was again chopped - this time on the knees. He broke away and ran to the exit marked "X" which was at the bottom of the sketch and is close to a video machine No. 30. For a person leaving the premises No. 30 would be on his left and on his right were two other video machines, Nos. 38 and 37.

5. Lo turned right after leaving the centre and a there was a person slightly ahead of him and to his left. He said a number of people also ran out of the "X" door at about the same time. When he got out he saw some of his assailants running ahead of him and be surmised that they had left by the top door to the premises, marked "Y" on the sketch.

6. When the constable saw the chopping, he drew his gun and he said he had playing the video game "Ninja'' at machine No. 37. There was playing at machine No.30 the third prosecution witness, the "innocent bystander".

7. The constable saw the portion of the attack, his attention having been attracted by the commotion taking place, at the accounts office. There was evidence that the centre was very dark. When he drew his gun he shouted "Police, don't move." He saw a man in a black T-shirt run to the "X" door exit, pursued by his assailants. He then fired two shots. One of those shots hit the Applicant and the other hit the innocent bystander.

8. The evidence of the constable was to the effect that he was sure that the Applicant was one of the assailants as he had seen him chopping and had seen him run in his direction, brandishing a knife in his right hand and holding it aloft at the level of his shoulder. He lowered the knife a little as he can. This is why he fired at him.

9. The constable chased the man in black and the Applicant through the "X" exit door and leaving through that door in that progression. The Applicant was the constable said, wearing glasses and dressed in a flowered T-shirt. He followed him into a car park, which is on the right of the video game centre as one looks at the sketch, up to its first floor and during that chase, although he lost eight of the Applicant momentarily as he turned a corner, the Applicant was carrying a knife. On the first floor, the Applicant dropped the knife, squatted down and said please arrest me, I am very painful." The constable's evidence continued that he then picked up that knife, there being no person to guard it where it fell, and brought it and the Applicant back to the video games centre. He then placed the knife near the area where he had seen the assault at the accounts section for want of any better place to put it.

10. Subsequent forensic examination showed that on the Applicant's trousers there were two minute spots of blood consistent with the victim's blood.

11. It was the Applicant's case that he also was an innocent bystander. That he became alarmed by the assault which he saw perpetrated upon Lo and that he was tried to get away from the centre as fast as he could. He left through the "X" exit with a number of other persons including the victim into whom he bumped as he passed through. As he ran he heard someone shout "If you run again I will fire". He said that it was only about then that he first felt any pain. He stopped on hearing the shout and squatted down. This was not in the car park area but was in a lane, to the right of the car park area and leading up to Ngau Tau Kok Road. When he squatted down people ran past him. Someone came up and pointed something at his head and was brought, with his hands tied with a belt, back to the video centre. He denied ever having a knife and said that the first time he had actual sight of the person who brought him back, and of the knife produced in Court, was when he got back to the video centre.

12. There were as between the evidence of the constable and the evidence of the Applicant three basic and irreconcilable differences. First, as to the identity of the assailant carrying the knife running down the video the assailant carrying down the video centre towards the "X" door; secondly: the apprehension in the car park as evidenced by the constable or in the side lane as evidenced by the Applicant, and the carrying of the knife during the chase and, thirdly: the evidence of who was playing at machine no.37, the constable said it was he and the Applicant said that he himself was there. They could not clearly both had been thereat the same time. There was no evidence of either of them having seen the other.

13. In addition, there was an internal conflict in the evidence of the constable himself: that is the angle at which he fired his shots for it was his evidence that he fired up the video centre towards where he said the Applicant was, yet the second of those shots, one following immediately upon the other, struck the innocent bystander at an angle to that line of fire of approximately 90º.

14. Apart from the issue of the angle of the shots which has relevance to his identification of the Applicant as the assailant, there are three matters which have given us particular concern and each of them relates to the route by which the trial judge reached her conclusions in accepting the constable as a credible witness and consequentially, having "no reservations" the he told the truth, which brought her to her conclusion of guilt.

15. The first was the matter of the number of people leaving the exit "X." There had been differing evidence the total number of people in the video centre. This varied from about ten to about fifteen to the Applicant's version of about thirty. The constable was clear that running out of that exit was the victim, the Applicant and himself, only those people at that time and in that order. PW3, the innocent bystander, saw four or five people running out. The victim had thought a number of people ran but he was somewhat uncertain, not surprisingly considering the wound he received, of the actual number.

16. This evidence in relation to the number of people again impinges upon the credibility of the evidence given by the constable as to what he saw, how be fired and his identification.

17. The next item was the "Ninja machine". It is accepted by Mr. Bruce who appears for the Crown that the trial judge made an inaccurate assessment of the Applicnat's evidence in stating that he had said that no.37 was the only machine, playing "Ninja". That assessment played a part in her rejection of the Applicant's defence. That was not the evidence he gave. He said that he had played several machines of which the No.37 was a Ninja machine but his evidence was not to the effect that it was the sole Ninja machine in the premises.

18. The third is the matter of the blood on the applicant's trousers. The trial judge combined this with his evidence as to a number of people coming out from the "X" door and thought it to be an attempt on the Applicant's part to build up a picture of, as she put it, a "veritable stampede" from the door. A picture she though was painted in order to explain his bumping against the left and with the object of providing an explanation for any blood of the victim which might subsequently be found upon him. This, with the greatest respect to the trial judge, was to give a unwarranted gloss to the evidence of the Applicant and to put the matter far too high. It would seem highly unlikely, that a person, even if he were an assailant, would make up a story of deliberately bumping against his victim, anticipating possible arrest in the immediate future, in order to provide for any possible blood stains of that victim which might have come upon him in the course of an attack. This story was one he told the police before any forensic evidence was available to them.

19. In addition to these matters where, wit h respect, we consider the trial judge's evaluation to have been seriously flawed, is the issue of the gun that fired at the 90º angle. If PW3, the innocent bystander, was hit at the machine so close to the exit s and if both shots were fired one immediately after the other, in the light of the angle of the wound on the Applicant - and we have both seen the scars remaining and had our attention directed to the evidence at trial as to the entry and exit which showed that the bullet entered at the point of the right shoulder coming across the that shoulder and across the neck to the exit point the evidence given by the constable of his firing angle must have been totally wrong and not, as the trial judge put it, "not totally ...(illegible)''. This, as we indicated earlier does impinge upon the evidence of that which the constable said he saw of the Applicant as the assailant and on his identification of him.

20. We accept that there is a heavy burden on an applicant who seeks to upset the findings and the evaluation of a trial judge on matters of fact and that it is not an easy task to persuade this Court that a conviction, where the matter of fact is for a seeing and hearing judge, is unsafe and unsatisfactory. While we are not to be taken as finding that the constable was a liar or that was a witness of the complete truth - and we have anxiously considered the submission of Mr. Corrigan and Mr. Macrae and those of Mr. Bruce - we feel that in all the circumstances here the Applicant has discharged that burden even if the trial judge did place great weight upon the apparent stupidity of the Applicant who, on his own evidence, put himself between the victim and his rapidly approaching assailants in leaving the centre. It is not merely a matter of entertaining a lurking doubt and we feel that this conviction for the reasons given is neither safe nor satisfactory.

21. We grant leave, treat the hearing of the application as the hearing of the appeal and allow the appeal.