HKSAR v. HO CHI YUEN

CACC 539/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 539 OF 1999

(ON APPEAL FROM DCCC 789 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 22 October 1999, the Applicant (D2 at trial) was convicted in the District Court of wounding with intent following a trial before Deputy Judge Saunders (as he then was). The Applicant now seeks leave to appeal against his conviction.

2. The offence appears to have resulted from a disturbance at about 10.30 p.m. in the Bagatelle Restaurant of the Regal Kowloon Hotel on 25 May 1999. The trouble seems to have spread to the immediate vicinity outside the hotel because it was in Centenary Garden that the offence allegedly committed by the Applicant (and D1) took place. PW1 was set on by several people and he was hit on various parts of his body including his head and chest. At one stage, he was said to have blacked out.

3. The incident was seen by two police officers. They saw two men using water pipes attacking the victim. Another man who was unarmed appeared to be pulling the victim's hand in an endeavour, possibly, to stop the victim from standing up. There was a fourth man who was standing nearby holding a wooden tofu container. The officers identified themselves as police and told those who were fighting to stop. The police were ignored, with the result that the officers were forced to draw their revolvers. This had the effect that the offenders discarded the weapons they were holding and fled. One of the officers managed to arrest D1. Another officer (PW3) arrested the man who was holding the wooden container on suspicion of having had some involvement in the fight. It later transpired that this man had not played any part in the fight. The other two men who were believed to be concerned managed to run away.

4. The Applicant was seen running by other police officers in the immediate vicinity. When he was told to stop he did not do so, but the officers managed to stop him nevertheless. On first being questioned, the Applicant said nothing but when asked where he had come from, he replied "I don't know."

5. PW3 was then informed by radio about the Applicant's interception by the police who had stopped him only about 100 metres away from the scene of the crime. On arrival, PW3 identified the Applicant as one of the men who had attacked the victim. It was then that he was formally arrested.

6. Against this background, Mr McGowan on the Applicant's behalf, has advanced four substantive grounds of appeal. In the first of these, he submitted that the judge had misdirected himself on the burden of proof in certain respects. Before turning to the detail of this submission, it is apparent that the judge obviously had in mind the burden of proof during the trial because he made a number of references to it. At p. 11 in the appeal bundle, the judge said:

"I am satisfied beyond reasonable doubt that the victim (PW1) was assaulted by water pipes in Centenary Garden as he described."

7. A little later at p. 12, the judge said:

"I am satisfied that if I accept the credibility of PW3, I can safely rely upon his identification of D2. It was the case for the accused that there were such serious discrepancies between the evidence of the two police officers and the victim that I must be left with a reasonable doubt."

8. A little later, the judge expressed himself as "satisfied that (he could) safely rely on (PW3's) identification of D2". Finally, the judge said:

"All the elements of the charge are established beyond reasonable doubt. D1 and D2 are accordingly convicted as charged."

9. Mr McGowan submitted in ground 1(a) that the judge erred in law when he said at one stage of his evaluation of the evidence that neither PW3 nor PW4 were cross-examined as to the clothing worn by the second man (D2) who had been wielding a water pipe. PW4 was the arresting officer and PW3, whilst placing some reliance on the Applicant's shirt having fitted the description of one of the men wielding water pipes, was apparently identifying the Applicant as one of the offenders, not just his shirt.

10. The fact that there was no cross-examination of those officers about the pattern of the Applicant's shirt was a statement, on the part of the judge, of no more and no less than what was obvious from the trial. There had been no cross-examination, and certainly no dispute about the pattern of the Applicant's shirt. No misdirection on the burden of proof had occurred and, in the circumstances of a trial where the Applicant did not give evidence, it is hard to see how this could ever have amounted to the kind of misdirection alleged.

11. This aspect of the application is also the subject of ground 2 where Mr McGowan contended that the prosecution had failed to establish that the Applicant's clothing was sufficiently distinctive to allow a "safe" identification based on it alone. There can be no doubt that the evidence relating to the shirt worn by the Applicant was taken by the judge as having been fundamental to the Applicant's identification because he said:

"It is plain from the evidence that PW3 based his identification of D2 on the clothing that was worn."

12. Why the judge formed this view is not easy to tell from the papers because the transcript of evidence reveals PW3 as having said (at p. 27P):

"At that time 54743 and 52318 were together with one of the assailants, that is the one who was carrying the shorter water pipe......... At that time I told 54743 and 52318 that that man had attacked the victim."

13. The defence case was put to PW3 on the basis which is set out at p. 38 of the appeal bundle which reads:

"Q. Now, I simply put it to you, officer, that in fact at least seven to eight people took part in attacking the victim.

A. Disagree.

Q. You were simply unable to see who did what during the attack.

A. Disagree.

Q. As to the clothing worn by the man who was pulling the victim, he was wearing a white T-shirt with stripes, is that correct?

A. Correct.

Q. With blue stripes?

A. I don't quite remember actually, but it seems that I do remember vaguely that it seems that there are some blue stripes in the colour of light blue but anyway in my witness statement I just said that he was wearing a white T-shirt with stripes."

14. There is no part of the transcript which indicates that PW3 was only identifying the Applicant by the pattern and style of his shirt so that the judge's view may have been rather more restrictive than it needed to have been. Having said this, if the judge was at fault in taking such a restrictive view, this can really only have assisted the Applicant. In this context, it is worthwhile looking at the general evidence concerned with identification, and Mr Albert Wong's analysis, on behalf of the Respondent, was extremely helpful. He pointed out that PW3 had given definite and positive evidence that the Applicant was the assailant. He had been observed from as close as 3 metres from the spot where PW3 demanded that the fighting should stop. The fight lasted only a short time but the observation at that close distance lasted about 20 seconds. It was 10.30 p.m. but the incident took place in a well-lit open space. PW3 was obviously very much on his guard and therefore alert. He was able to describe in some detail the role played by each of the assailants and, to some extent, the clothing which each of them was wearing. In particular, in relation to the man who it is alleged was the Applicant, he said that he was holding a pipe "21/2 feet in length" and that he was on the right-hand side of the victim.

After the police had drawn their revolvers, PW3 said:

"Then the two men with water pipes put down their weapons and the one holding the wooden container also put down the box ...... Then the one who (was) previously on the right-hand side of the victim wearing a light blue, dark blue, white striped T-shirt with collar then followed the man without any weapon and ran towards the direction of East Ocean Centre as well."

15. The witness was not cross-examined on the basis of the accuracy of the identification beyond the general suggestion that it had not been possible to see precisely what happened in the fight in the passage taken from the transcript which has already been cited.

16. In the circumstances, Mr Wong suggested that the judge's restrictive view of the evidence given by PW3 was possibly because some time had been spent while this witness was giving evidence on the descriptions he had given about the clothes of the assailants.

17. Of course, even if recognition of the Applicant had been as the result of the clothing he was wearing or was largely instrumental in making PW3 confident that he was the other assailant carrying a water pipe, that would not in itself be fatal to the conviction if the clothing was sufficiently identifiable to make it distinctive. From the description we have been given, clearly it was. We have been told that as there was no dispute about the pattern of the shirt being worn by the Applicant, it was not even exhibited in the trial court below. We feel bound to say that this strikes us as most surprising in view of the importance the judge attached to the shirt.

18. The judge, despite this omission, examined all the evidence with some care before expressing himself as having been satisfied that he could rely on PW3's evidence. In the context of identification, it had to be borne in mind that the Applicant was stopped only 100 metres away from the spot where the assault had taken place; he was stopped outside the East Ocean Centre which was in the direction PW3 had seen the man in the striped T-shirt running away; and the identification was within a very short time of the offence. When first seen, it is true that the Applicant was running. If that factor by itself should have been given little significance, when all the other factors are put together, they were more than sufficient to have justified the judge's finding that the Applicant had been properly identified.

19. The judge set out all of these matters in his Reasons for Verdict. Perhaps this case is best described as a classic example of the prosecution being put to proof of its case. The judge was amply justified in finding that the prosecution had discharged the burden upon it.

20. Returning now to ground 1, subparagraph (b), it was contended that the judge misdirected himself on the burden of proof in stating that "no attempt was made to qualify (PW7)". By itself this is a meaningless phrase. It emerged that this was a reference to the doctor of medicine called by the prosecution to deal with the injuries suffered by PW1. This ground is linked to ground 3 with which it is also convenient to deal at this stage. Here, Mr McGowan submitted that the judge "erred in dismissing the medical evidence where it departed from that of prosecution witnesses, particularly in speculating about PW7's lack of expertise."

21. When PW7 was cross-examined by defence counsel, some of the doctor's answers appeared to contradict evidence given by the prosecution witnesses who had described the nature and degree of the assault on PW1. Whether a doctor is qualified to answer questions concerned with the nature and cause of injuries will depend on the degree of their experience. Obviously no doctor should answer or be required to answer questions which call for an expert opinion when the answers lie outside the field of his or her expertise. It may be that the doctor did answer such questions when she ought not to have done because, in dealing with her evidence, the judge said, in a passage which includes the reference about which complaint is made in ground 3, that:

"In cross-examination the doctor accepted a proposition put that 'most probably' the wound described was the result of one blow and said that it was 'unlikely, not highly unlikely' that the injury was caused by the pipes (Exhibits P6 and P7). I am unable to place any great weight on this evidence. The doctor was simply a registered medical practitioner with only five years' experience and, at that time, a medical officer in the Accident & Emergency Unit at Queen Elizabeth Hospital. Other than that she was in the A & E unit, no attempt was made to qualify her to express the specialised opinions on which Mr Wong sought to rely. She was not a qualified pathologist and there was no evidence of any experience she may have had in the interpretation of wounds and their causes. The opinion expressed by her was not such as to raise any doubt in my mind that PW1, PW2 or PW3 did not tell the truth as to the circumstances of the attack."

22. What the judge had said was no doubt perfectly correct if his opinion was based on evidence, but it does strike this court that the way in which he had approached the matter was more than a little unfortunate. Having regard to the fact that this was what was in the judge's mind when he gave his Reasons for Verdict, by which stage it was too late for the defence to re-open the evidence, it was highly desirable for the judge to have made his feelings clear to defence counsel in order that counsel could deal with this point during cross-examination. Apparently, this aspect was never dealt with at all in the evidence and, unfortunately, not even the judge questioned the witness's expertise after she had completed her evidence. If he had done this, the matter would have been clarified. Clearly also, if PW7 was not competent to answer questions because it was felt these related to a topic beyond her field of expertise, the judge should have stopped the cross-examination, whether or not prosecuting counsel objected, to find out whether the doctor could truly give the evidence she was purporting to give.

23. However, this point is, to a large extent, a complete irrelevance to the Applicant's conviction, save that it may have peripherally affected the police officers' credibility. They had seen a number of blows struck and the medical evidence confirmed that there were a number of injuries to the victim's body. The most that could be said is that the medical evidence did not reveal as many of the kind of injuries as might well have been expected if the police account of what they had seen was accurate. We do not think that this point advances the matter in any material way.

24. In ground 1(c), it was alleged that the judge misdirected himself on the burden of proof when he said at p. 12P of the appeal bundle:

"Bearing in mind the dangers inherent in a Turnbull situation, from the circumstances in which the identification was made and in the absence of any challenge to the conditions in which it was made, I am satisfied that if I accept the credibility of PW3, I can safely rely upon his identification of D2."

25. The complaint Mr McGowan made related to the phrase "in the absence of any challenge to the conditions in which (D2's identification) was made". We are at a loss to see what possible significance, adverse to the Applicant, can be attached to this ground of complaint. There was no challenge of the evidence as such and the Applicant did not give evidence or call evidence on his behalf. The evidence could obviously be more readily accepted by the judge if, as was the case here, it had not been challenged. In any event, the burden of proof had not been ignored as the judge had demonstrated from the passages we have cited earlier on in this judgment.

26. In the fourth ground of appeal, upon which Mr McGowan has realistically placed not a great deal of reliance, he submitted that the judge had erred in using the Applicant's "flight" as evidence of his participation. On a first reading of the passage, it does appear that, without qualification, the judge had done precisely what this ground of appeal has alleged. However, the passage has to be looked at in context and it reads, on p. 12I of the bundle, as follows:

"The identification of D2 raises Turnbull issues. The period when the officers were 3 metres away from the fight was less than 30 seconds. It was at 10.30 at night. PW3 who identified D2 on arrest had described clothing he was wearing. He had described the incident he had seen and the action of fleeing taken by the man described as the second man when approached by the police.

It is plain from the evidence that PW3 based his identification of D2 on the clothing that was worn. In cross-examination he was not challenged as to his ability to see what he described. No suggestion was made that the lighting was insufficient. The description by PW4 of D2's actions and response to caution may be characterised as those of a man fleeing."

27. As we have said, no qualification in the judge's approach to "flight" was made in this context, (see: HKSAR and Mo Shiu-shing [1999] 2 HKLRD 155 at 173; [1999] 1 HKC 43 at 60). However, the evidence of flight was here being referred to by the judge in the context of identification and it does not seem to us so much that the judge was relying on flight by itself as a factor to establish the prosecution's case (which would have been a misdirection) but rather as evidence which was support for the identification which was the sole crucial issue in the case. If the identification failed, the case failed. This was not just identification of a man in a distinctive T-shirt, but of a running man who was wearing a distinctive T-shirt, taking the same direction as PW3 had seen the assailants to take.

28. We have been able to find nothing which causes us to say that this conviction was unsafe or unsatisfactory. All the grounds of appeal must fail and the application is dismissed.