R. v. LIM LIK WANG

IN THE COURT OF APPEAL

1996, No. 4

(Criminal)

_______________

_______________

_______________

J U D G M E N T

_______________

Mortimer JA (giving the judgment of the Court): On 23 January 1996 the applicant was convicted after trial by His Honour Judge Longley of an offence of unlawful wounding contrary to s. 19 of the Offences against the Person Ordinance (Cap 212). He was sentenced to 18 months imprisonment. He now applies for leave to appeal both conviction and sentence.

The history

2. He appeared first on this application on 25 July 1996 when he raised questions about the discrepancies in the victim's statements and evidence. The consequence of that was that he was granted legal aid and given bail.

3. On 22 November 1996 he appeared by counsel before another division of this Court. By then he had written a further statement to the court which counsel had not seen and the matter had to be adjourned again. It was restored to the list on 11 December 1996 when counsel felt he could not advance any submissions on conviction. Having explained that to the applicant, he then elected to appear in person. The applicant advanced criticism of his counsel who defended him at trial. The consequence of that was that the matter had to be adjourned yet again, part-heard so that those matters could be disclosed to counsel and he could make comments about them. We now have those comments.

The facts

4. The victim and the applicant had business dealings in the past. But during 1994 they were in dispute about cotton goods and sweaters. The outcome was that neither would pay the other what was said to be owed. Each said the other owed money and the applicant was said to be in financial difficulties.

5. On 16 March 1995, according to the victim, a meeting was arranged to resolve the matter at a restaurant. The victim arrived, driving his goods vehicle. According to the victim and the finding of the judge, the applicant was waiting there for him with a number of men. As the victim approached the applicant said, "What about my money?" The victim asked, "What about my yarn?" The victim got out of the vehicle at the applicant's request. He said that he did so because he knew the applicant and in spite of there being men about with weapons, he did not think he was in danger of being assaulted. He said that he had previously been threatened by the applicant but this had not led to any violence.

6. In due course, however, according to the victim, on the applicant's signal a number of people including the applicant attacked him, one hit him on the head with a pole and the other on the leg with a weapon. The applicant also punched and kicked him before they all ran off. The victim received a wound to his head and a number of other bruises and abrasions.

7. Four days later, on 20 March, the applicant accompanied by his solicitors surrendered himself to the police. He was arrested. He made no answer when he was cautioned.

The defence

8. At trial the defence was that he and the victim knew each other well. It was therefore not an identification case. The applicant said that it was not he who had been involved in the attack and therefore that the victim must have maliciously made up the case against him. There was no dispute that the victim had been attacked. The defence was that the attacker must have been someone else. Also, at trial, the applicant advanced an alibi supported by his girlfriend. He said that he had parked a car near her flat and received a fixed penalty ticket which was produced. He also gave evidence himself and called evidence of his good character.

Application for leave to appeal against conviction

9. Initially the applicant raised as his ground of appeal the discrepancies which are evident between the various statements the victim made to the police and his evidence. But an examination of the reasons for verdict made it quite clear that although not all the discrepancies were advanced by counsel, the main discrepancies were considered by the judge in his reasons for verdict.

10. The applicant added to his grounds of appeal and at the last hearing, he made it clear that his real ground was that his counsel had not advanced a number of matters in his defence. To be fair to the applicant, he is probably ignorant of what must be made out in order to succeed on such grounds. It is necessary to show - if this ground is to be successful - that counsel had conducted the defence by doing something, or omitting to do something, in a manner which was nothing less than flagrantly incompetent and further, that such conduct rendered the conviction unsafe and unsatisfactory.

11. Judged by that standard, the allegations fall to the ground. He first complains that that there was no cross-examination about the victim's description of the assailant, and about the conduct of the identification parade. As this was not a case of mistaken identity, on any view these grounds were not relevant for counsel to raise. No possible criticism could be made. The applicant may not have understood that.

12. He then complains that counsel did not cross-examine about some of the discrepancies. There was only one which could possibly be a matter for comment or concern. In his first statement to the police the victim said that the assailant carried knives as well as clubs. But they had not been used to hit him. He had been hit with a hard object.

13. In his oral statement to the policeman who first attended the scene, the victim also mentioned knives and the policeman's written record included the statement that the victim was wounded "by knives in the right forehead". The applicant contends that counsel ought to have cross-examined the victim on that statement in his evidence as he never mentioned anything about the carrying of knives. To put it shortly, counsel says that he judged it in the best interest of his client not to risk bringing the victim up to proof about the possession of knives, mindful of the effect that it would have on the seriousness with which the court would regard the offence. Also, as a secondary matter, that if the worst happened and he was convicted, then this might influence sentence.

14. Those allegations against counsel are totally without merit. It is quite clear from a reading of the papers that the applicant was defended with skill and with careful preparation. He had the good fortune to be defended by counsel who is not only very experienced and skilled, but who also exercised his judgment about the way in which the case was to be presented and prepared with considerable care. Counsel has a wide discretion on decisions on how the case is to be presented. A layman may understandably raise questions as this applicant has done. They are raised through ignorance. There is no basis for the allegation that has been made.

15. The application for leave to appeal against conviction is refused.

Application for leave to appeal against sentence

16. Mr Halley represents the applicant on his application for leave to appeal against sentence. He has advanced everything that could be said on his client's behalf. The sentence was 18 months imprisonment. He had already served about 8 months before he was granted bail.

17. A number of matters are advanced. The applicant's business was brought to an end and he had family problems as a result of the offence and his imprisonment. He was a man up to this time of perfectly good character. He relies upon his past charitable work for the needy. The financial effect upon him has been disastrous. In the meantime he has obtained a new job. He is working and is highly regarded by his employer. However, on the other side of the coin, here was an offence which was carefully planned, weapons were used and a number of others were recruited to attack and beat up the victim.

18. In these circumstances the sentence of 18 months imprisonment was neither wrong in principle nor was it manifestly excessive. There is no basis upon which this Court can interfere with it.

19. The application is refused.