R. v. NG KWONG WAI and Others

IN THE COURT OF APPEAL

1995, No.605
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicants faced one charge of wounding. It alleged that the three applicants on 8th July 1994 at Chung Kwong Mahjong School, 481 Jaffe Road, Wanchai, unlawfully and maliciously wounded Tse Moon-tong, with intent to do him grievous bodily harm. They pleaded not guilty to that charge and after trial before District Judge Whaley were found guilty and were sentenced to terms of imprisonment, 32 months in the case of the 1st applicant and 26 months in the case of each of the other two applicants. They now seek leave to appeal against their convictions.

2. Most of the evidence at trial was not in dispute. At 5:30 p.m. on 8th July 1994, the victim was chopped by an assailant or assailants at the Mahjong school at 481 Jaffe Road. Patrolling police officers in the vicinity of the school saw a group run from Percival Street into Gloucester Road. The group included the 1st and 2nd applicants and they were apprehended outside the Elizabeth House. The others in the group continued to run away.

3. The 1st applicant, upon being apprehended, was cautioned but he remained silent. He was seen to be sweating profusely and he had blood stains on his shirt and small abrasions on his hand. When he was searched a 20-inch long green canvas sheath was found folded in his pocket. This had blood stains on it. The 2nd applicant also had blood stains, several on his T-shirt, some on his jeans and some on his left shoe and he had a slightly injured hand also. The bloodstains, upon examination by the Government Chemist, were found to be of blood that could have come from the victim.

4. The 2nd applicant when cautioned at the scene said: "Ah Wai said that there was something and he told me to come for assistance." It is to be noted that before he made that statement the cautioning constable had said, "I have reasons to believe that you, together with Males NG Kwong-wai, Kwok Sin-fuk, Chung Yuk-keung, Law Man and Female Wong Tsui-shan, wounded Male Tse Mun-tong with knives earlier on, causing harm to his neck."

5. The police officers or some of them chased the rest of the group who kept running shouting several times "Police, don't run". Two of the group boarded a taxi in which there were already two passengers. The evidence of the taxi driver was that he picked up a male and a female passenger outside Elizabeth House. They had not given him any destination but told him to drive straight ahead and they then ordered him to stop to pick up the two further passengers. When the police officers stopped the taxi the 3rd applicant was observed to be inside with a knife approximately 2 feet long which he had then stuck in his waist band. When the officer open the door he lifted his upper garment and put his hand on the knife. The officer drew his revolver, told him to get out of the car and to lie on the ground. He then took possession of the knife. The third applicant made no reply when he was asked why he had possession of the knife.

6. The 3rd applicant's upper garment and his jeans were also bloodstained and this also was found to have been blood that could have come from the victim. When asked why his clothing was bloodstained he again made no reply.

7. A cautioned statement by the 1st applicant, was admitted, after objection, into evidence. In the statement the applicant said that he was the one who chopped the victim at the mahjong school, and when he was asked why the knife was found on the 3rd applicant he said that it was he alone who chopped the victim and that the 3rd applicant had been waiting at the doorway and that he handed him the knife on his way out. His actual words were: "I thought that Law Man had not gone in and it would be more convenient to flee separately."

8. That was the evidence against the applicants. They gave no evidence and they called no evidence.

9. The trial judge when coming to his conclusion as to guilt makes the following observations:

"It is clear, then that the victim's evidence does not in any way implicate the defendants as having been party to the attack upon him. However, looking at the evidence as a whole, the circumstantial evidence against the defendants is very strong.

I pause here to note that the judge makes it plain that, when looking at the evidence as a whole against the defendants, he is considering the circumstantial evidence. He goes on:

No adverse inference of any sort, of course, arises against any of them from the fact that they did not give evidence nor, in the cases of D1 and D3, any explanation at the scene; it is their right to remain silent. In practical terms what this means is, that there was no explanation forthcoming from the defendants to offset or explain the powerful circumstantial evidence which indicated that they had been involved in the attack on the victim.

Again I pause here to emphasize that the judge is here considering what he characterizes as "powerful circumstantial evidence". He goes on:

"To recapitulate that circumstantial evidence, the defendants were all seen to be running away from the general location of the mahjong school immediately after the attack had taken place. The 1st defendant had bloodstains on his clothing and he had a 20-inch canvas knife sheath, with bloodstains on it, folded in his pocket. When cautioned at the scene he offered no explanation for these matters, although of course he was not doing anything more than exercising his right to remain silent in so doing.

Again I pause to underline that only now does the judge come to deal with the case against the 1st applicant saying:

"In his case there is far more than the circumstantial evidence against him; there is his direct confession, of course contained in his cautioned statement. I see no reason to accord his confession that he was involved in this stabbing, chopping attack, anything less than its full weight. This does not involve accepting his explanation, which was an apparent attempt to exculpate the 3rd defendant, that the 3rd defendant had not taken any part and had simply stood at the door. I note that when the 1st defendant was asked why he had chopped the victim, he explained that last year there had been an altercation involving the victim at the President Theatre in Wan Chai, when the victim and others had told him he was cheeky and they surrounded and hit him, and he said that the day in question was the first opportunity he had had to avenge himself for that incident.

Again I have taken into account that the 1st defendant has a clear record which indicates in his favour that he has, if anything, a lack of any sort of disposition to commit this offence. However, I am satisfied beyond a reasonable doubt on all the evidence that he did take a direct part in this chopping attack on the victim, and there is no doubt, from the nature of the weapon used - it is a fearsome machete - and the way that it was used to injure the victim, that it was done with intention to cause him grievous bodily harm, and I accordingly find the 1st defendant guilty as charged.

The judge comes, at this point, to the end of his consideration of the evidence insofar as it inculpated the 1st defendant. He then turns to the 2nd defendant saying:

"The 2nd defendant, as I have described, was not only running away from the scene with the other defendants but he had multiple bloodstains on his clothing and, when cautioned at the scene, he said, 'Ah Wai said that there was something and he told me to come for assistance.' This I find was an admission that he had responded to the 1st defendant's request to be present at the scene and give assistance. So far from attempting to offer any innocent explanation for the presence of bloodstains on his clothing, in the vicinity of this attack and in the immediately aftermath of it, he simply admitted that he had been asked to be there to give assistance. Upon all the evidence I am satisfied beyond a reasonable doubt - the inference arises irresistibly, in my view - that he was also party, direct party, to this chopping attack on the victim. In his case also it was clearly done with intent to cause grievous bodily harm and I find him, accordingly, guilty as charged."

So much for his consideration of the evidence against the 2nd applicant. He then turns to consider the evidence against the 3rd defendant saying:

' "The 3rd defendant was also running away from the scene of the crime and, not only that, but when told by police to stop, police who were chasing him, he ignored them and intensified his efforts to escape. He jumped in a taxi and when the taxi was stopped, the 3rd defendant was found to be in possession of this fearsome machete, about 2 foot long, tucked into his waistband. The machete was bloodstained and, when asked for an explanation, the defendant did not attempt to give any explanation for his possession of the machete or the fact that it was bloodstained. Looking at all the evidence as a whole, the inference arises irresistibly, in my view, that he was directly involved in this chopping attack on the victim, and I accordingly find him guilty as charged."

10. Mr. Richard Wong, who appears for all three applicants, has argued two matters before this court. Firstly, he submits that there was a failure by the judge properly to assess the evidence of the victim which exculpated the three applicants. We are quite satisfied that there is no warrant for this submission. At pages 9 and 10 of his Reasons, the trial judge carefully looked at the evidence of the victim. He said in terms:

"..... the victim's evidence does not in any way implicate the defendants as having been party to the attack upon him."

Having examined his findings, and in particular the passages which I have read in extenso, we are left in no doubt that the trial judge came to his conclusion having given full consideration to the evidence of the victim and having rejected it insofar as it exculpated the applicants. In the light of the overwhelming circumstantial evidence, he was plainly, and, in our view, justifiably, not prepared to give any weight to that evidence. There is nothing in this ground.

11. The second submission, which rolls up Grounds 2, 3 and 4, is that the trial judge had failed to consider the case against the three applicants separately and in particular that he had failed to bear in mind that the statement of the 1st applicant was not admissible evidence against the 2nd and 3rd applicants. In our view this submission is plainly unarguable. In the reasons, to which we have referred, the judge carefully compartmentalised his consideration of the evidence against each of the applicants. When considering the evidence against the 1st applicant he took into account not only the circumstantial evidence but also the contents of the cautioned statement. He then turned to the 2nd applicant reciting the evidence which was admissible against him and then, upon the basis of that evidence, finding that he was satisfied as to guilt. He then turned to the 3rd applicant and did the same thing. There is no substance in the suggestion that he failed to consider the case against each applicant separately and somehow wrongly used the evidence of the admissions in the cautioned statement against the 2nd and 3rd applicants. The applications must be refused.