THE QUEEN v. YU CHIK MAN

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J U D G M E N T

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1. The applicant was convicted by Judge Kilgour in the District Court on 7th November 1991 on one charge of wounding with intent, contrary to s.17 of the Offences Against the Person Ordinance, Cap. 212. He was sentenced to 2 years imprisonment but appeals against conviction only.

2. At about midnight on 5th November 1988 the victim, Fong Ming-kwong, and four friends went to the Pabst Blue Ribbon Lounge in Wanchai. They occupied a table on the mezzanine floor.

3. Half an hour later Fong was paged by his friend, Song San, who said he had been asked to pay compensation for damage to a motor car. It was arranged that Fong and Song San should meet the other party on the ground floor of the lounge. In due course four to six men and Song San arrived. Song San sat with Fong, their friends sat at another table and two men from the other group sat opposite. One of these two men - alleged to be the applicant - said he was called "Chile-man", he was a follower of Foo-yee and he had a free hand in the matter.

4. According to Fong negotiations broke down, Chile-man banged at the table and a fight started. Two of Fong's group received chop wounds and Fong's hand was injured. The other group fled and the two chopped men were taken to hospital.

5. Five minutes later Fong said he was standing at the door of the premises when he was approached by three of the group who had just left, including Chile-man. The latter then chopped Fong on the face.

6. Fong was. treated in hospital but, when questioned by the police, said he had had an accident. He made no subsequent complaint to the police until interviewed about the incident some two years later, when he detailed his involvement.

7. Between the time of the incident and the applicant's arrest, Fong had seen him once or twice in the street but had done nothing about it. At an identification parade held on 8th April 1991 the applicant was identified by Fong.

8. Similar evidence was given by Sin Kai Hung, who had been sitting with Fong's group. After describing the fracas in the lounge he said he and Fong were waiting outside when "three people came and chased us to chop us". He succeeded in running away and thus escaped the second attack. He first said he saw the chopping, but later said he did not know if they used knives because he ran as soon as he saw the three men. In cross-examination he confirmed that he had seen the chopping but he could not say which side of Fong's face was injured.

9. Mr Egan suggested that there was a contradiction here. We are satisfied however that the witness was merely saying that because he was running he was unable to see the kind of weapon used.

10. Sin did not attend an identification parade. He said he saw Chik-man in court but the judge refused to allow a dock identification.

11. Finally, evidence was admitted under s. 65C and s. 65B of the Criminal Procedure Ordinance confirming the wound suffered by Fong and the identification of the applicant at a parade by three prosecution witnesses including Fong. The identification by the other two witnesses related only to the first incident.

12. The applicant originally faced five charges. Two concerned triad society offences and two related to the first incident in which two of Fong's group were wounded. On these four charges the judge found there was no case to answer and acquitted the applicant.

The applicant did not give evidence or call witnesses.

13. The judge found that both Fong and Sin were credible witnesses and he accepted their evidence. He was satisfied that Fong had had ample time to view the applicant in the lounge and that there was no danger of wrong identification. He rejected the suggestion that they had fabricated their evidence in order to frame the applicant. Finally he found that Fong's evidence was supported by Sin, in spite of the fact that the latter "agreed that there were conflicting accounts in his police statement". He did not however specify any conflict or enlarge upon the discrepancy.

14. The principal ground of appeal was that the judge erred in finding that Fong's evidence was supported by Sin. Mr Egan, who appeared for the applicant both on appeal and at trial, pointed out the essential unreliability of Fong's evidence: his lie at the hospital, his failure to report to the police, his contradictory evidence concerning the first incident, his Triad Society membership and his possible motive for framing the applicant as a member of another Triad Society.

15. He relied mainly on answers given by Sin at the end of his cross-examination to show that his evidence was not worthy of credit, viz.:-

"Q.    Did you tell police truth as best you remembered it?

A.    Yes.

Q.    Look at the statement. Signed?

A.    Yes. Yes.

Q.    Commences with declaration? Signed?

A.    Yes. Yes.

Q.    3rd Last paragraph?

A.    Yes.

Q.    You told police officer? 'Shortly afterwards Chik Man and party left

        before hitting us.'

        Continues?

A.    Yes.

Q.    'I later found out that Shek Pang-jai and Pak Chai were injured.'?

A.    True.

Q.    'Some of them went to hospital I hailed a car and went home.'?

A.    Yes. True.

Q.    'On the morning after the occurrence of the incident. I received a phone from the wife of Ah Sai. Who told me Chik Man and his party returned to the scene after I had left to chop and wound Ah Sai.'?

A.    Yes that's recorded there. I told them that that was true."

16. Mr Egan pointed in particular to the last answer and submitted that this contradicted his evidence in chief to the extent that there must be doubt that he was present at the scene at the time Fong was chopped.

17. This answer however must be looked at in the context of the earlier questions. He was being asked if the statement accurately reflected what he had told the police. He agreed that it did. In the last answer he goes further and says he told the police the truth about the phone call. The "truth" was that :

(1)    He had received the call,

(2)    She had told him Chik Man returned to the scene after he (Sin) had left.

18. He is not telling the court that her message was accurate. Indeed how could Fong's wife have known the state of play at the critical moment?

19. If Mr Egan is right, it means that the judge, who makes no reference to the last answer, is content to ignore the contradiction, never mind attemping to resolve it, while at the same time accepting Sin as a credible witness. That to us seems unreasonable. The judge was well aware of the statement and he recognised its contradictory nature. Although he does not refer to it, there is an obvious discrepancy in the third last answer. In chief Sin had clearly stated that he had seen the attack upon these two men. This however was not germane to the issue concerning Fong and it is understandable that the judge did not enlarge upon it.

20. We are firmly of the view that Mr Egan has placed an unjustifible interpretation on this last answer. We accept that, at the time, it may have sounded like a retraction and was music to counsel's ears but, if so, it would surely have been prudent to ask the Witness to confirm it in terms.

21. Mr Egan's second ground of appeal was that the judge erred in convicting the applicant, having acquitted him on similar charges based on evidence substantially the same, and that the verdicts were inconsistent. He recognised that this ground of appeal would lose much of its force if he failed on the first.

22. We agree and do not propose to say much about this ground. The circumstances were quite different. It was a confused situation, more people were involved, accurate identification was problematical. The fact that the judge held no case to answer on the other counts does not persuade us that he should have had doubts about this charge or that the verdicts are inconsistent.

23. As to the other two grounds of appeal, we are satisfied that the verdict was not against the weight of the evidence or that it was unsafe and unsatisfactory.

24. For these reasons we refused the application.