R. v. WAN TO-SANG

-----------------

----------------------

J U D G M E N T

----------------------

Hon. Yang, CJ:

1. The applicant Wan To-sang ("Wan") - D1 at trial - was convicted by His Honour Judge W. Wong, of three charges of wounding with intent. He and his three other co-accused were acquitted of a number of charges which need not concern this Court. Upon conviction, Wan was sentenced to three years' imprisonment on each charge, the sentences were to run concurrently. He now seeks leave to appeal against conviction.

2. The matter arose out of a dispute in respect of the sale and purchase and subsequent delivery of vacant possession of premises at Nos. 83 to 91, Electric Road, Hong Kong. The occupant of one single unit, on the roof-top of No. 83, a certain So Siu-Shan ("S.S. So"), refused to deliver vacant possession unless he was paid $300,000.Wan, who was employed by the estate company handling the sale,. the Fineway Group, was given the responsibility by his superior in the company, a Miss Lily Yim, to obtain vacant premises of all the unite in the premises in question.

3. Negotiations between Lily Yim and Wan and his co-accused in respect of S.S. So's unit were unsuccessful. Evidence of those negotiations was given by Lily Yim, and rejected by the learned trial judge: he found that she was co-accused Evidence of rejected by "not a credible witness".

4. The main evidence against Wan came from the three wounded persons, namely Lau Kin-fai (Charge 1), Tse Ah-ming (Charge 2), and Tse, Kam-wa (Charge 3), whom the learned judge found to be reliable.

5. Evidence given by the three wounded persons, which was accepted by the judge, was as follows. On the 18th March 1991, Lau Kin-fai's brother lau Cheuk-fai asked him to assist in taking vacant possession of No. 83 Electric Road. Whilst there in the afternoon,at the roof-top of that building, the Lau brothers and one Tse Kam-wa were also present, but there was no evidence that Wan was also on the roof-top.

6. On the evening of the same day, a solicitor acting for the Fineway Group and a number of other persons spoke with S.S. So. The talk ended at the police station.

7. At about 11 p.m. the same evening, S.S. So paged Tse Ah-ming and they arranged to meet at 1 a.m. at Green Lake Restaurant. He and Lau Kin-fai, Tse Kam-po and Tse Kam-wa proceeded to the restaurant. Tse Kam-po went to park the car whilst the rest went into the first floor of the restaurant. There they saw many men seated at all the tables with no meals being served. There were about 30 or 40 of them. S.S. So was at a table. Wan was at the next table. Those people at the roof-top earlier in the day were also there. Lau Kin-fai and his men were shown to the innermost table near the wall and sat with S.S. So.

8. Lau Kin-fai and Tse Kam-wa talked to S.S. So. He asked Lau for $300,000 in exchange for the unit. Lau said he would have to take instructions from Lily Yim. After talking for several minutes, eight to ten people rushed up in a fierce manner from the entrance a table away holding knives, and they distributed knives to those at the other tables. S.S. So hit Lau with his portable telephone. Then the three victims were attacked with choppers. A "big guy" placed his hand on Tse Ah-ming's shoulder and said, "Don't move", and chopped Tse.

9. Lau Kin-fai did not identify any of his assailants at the Identification Parade held subsequently in the police station but made a dock identification of Wan as the one at the next table. He had of course seen Wan two or three days prior to the incident on the roof-top and on another occasion with S.S. So. Tse Ah-ming gave evidence that he saw Wan and the second and fourth co-accused there. He identified Wan at an Identification Parade. Tse Kam-wa's evidence was that he had seen Wan once at Electric Road and he identified Wan as being one of those in the restaurant at the next table.

10. Wan gave alibi evidence that on the night in question, he celebrated his wife's birthday by dining out with her, and they returned home after a walk. The judge did not accept his evidence.

11. Of the seven Grounds of Appeal, it seems that the crucial one is Ground 6, which states that the judge in finding that Wan was one amongst a group to wound the three victims erred in not considering:

(i) that Wan never took part in demanding $300,000 from Miss Lily Yim;

(ii) that Lau Kin-fai could not say what Wan was doing at the next table in the restaurant;

(iii) that Tse Ah-ming was not sure if Wan had given any eye signal to S.S. So in the restaurant;  and

(iv) Tse Kam-wa could only see Wan sitting at the next table.

12. In short, even assuming that Wan was present at the Green Lake Restaurant, which was denied, there was no evidence to support a finding that Wan was acting in concert with others in either the negotiations, or the follow up chopper attack, which occurred at the Restaurant.

13. Much was said about the learned judge's finding that "it was natural that they (the wounded persons) would look around and I am convinced that they have observed So Siu-shan taking instructions from D1", i.e. S.S. So looked at Wan for instruction to launch the attack. The evidence does not however bear this out. Tse Ah-ming said, "During the time when Lau and Tse were talking about money So often looking to his table. Whether there was any eye signals I don's know. Anyway he (i.e. Wan) often looked to that table." Tse Kam-wa in answer under re-examination by prosecuting counsel Mr. Frank Wong said this:

"Wong: The question asked of you and, how ... did you answer because on the date ... during the discussion ... following that I saw the man asking $300,000.00 looked to the next table ... as if he were seeking instruction from the person No. 4... Is that right?

PW4: Yes.

Wong: On that date you saw the D1 having been looked at by the man demanding $300,000.00 and people rushed up to chop you.

Is it the reason why you were able to identify Dl as the person present?

PW4: Yes."

14. Lau Kin-fails evidence did not make any mention of S.S. So seeking instructions from Wan, simply that "Mr. So gestured meaning we have the people", then the attack followed.

15. There is however the statement of a waiter at the restaurant, Mr. Ip Wing-hoi, which was admitted into evidence. This statement shows that the three victims arrived at the Green Lake Restaurant at 00.45 hours on the 19th March and sat at Table 106. At that time there were already about 30 people who had arrived earlier in two or three groups (between 11 p.m. and five minutes past mid-night) and seated at eight different tables. Apart from the three victims, there were already six or seven people seated at Table 106. At about 1 a.m., ten more persons came and stood at the public telephone kiosk near the staircase entrance.Some "popped their heads" and looked into the hall where the tables were. Then someone at Table 106 shouted, "Don't move yet", and the group of people at the staircase entrance walked up to Table 106 and attacked ,the three victims. It will be recalled that S. S. So and the three victims were seated at the same table; Wan was at another table nearby.

16. The trial judge makes no mention of the evidence of this witness.

17. Taking the evidence as a whole, a clear inference can be drawn that there were two parties in a dispute as to the payment of $300,000 demanded by S.S. So for his unit on the roof-top of No. 83 Electric Road. A clear inference can also be drawn that at the meeting at the Green Lake Restaurant, S.S. So's party were intent on intimidating the opposite party, viz., the three victims, by the sheer number of his group if by nothing else. The fact that no food was being consumed, that the three victims had to walk, pass the table with many men seated there and were shown to the innermost table against a wall, must have been intended to intimidate. On the evidence, it is difficult to exclude Wan from what was happening up to that stage.

18. The issue was: was he the participant in a joint enterprise to attack the victims? Was there any intention on his part that an attack should be launched so that the victims should be wounded resulting in serious injuries?

19. There was no direct evidence that Wan gave instructions for the attack. The knives came from the ten men who arrived some 15 minutes after the three victims, and it was these ten who came, not from the tables, but from the entrance, to start the chopper attack. Could it be that the chopper attack by the ten latecomers was an enterprise different from teh negotiation and not expected by Wan? The mere presence of Wan possibly as a member of the group giving weight to S. S. So's negotiating team does not inevitably lead to the conclusion that he must have had in his contemplation the violent attack which followed. There is in my judgment a gap in the evidence; there is insufficient evidence to aonnect Wan directly with the attack however great the suspicion.

20. On Ground 6, the appeal must succeed and it is unnecessary to consider the other grounds save to say that they of themselves would not have given us cause for concern.

21. I would allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. The convictions are quashed: the sentences are set aside.

Hon. Silke, V-P:

22. I have had the opportunity of reading in draft the, judgment of my Lord the Chief Justice. I agree there is suspicion but that is not enough. I too would allow the appeal.

Hon. Bokhary, J:

23. I too have read in draft the judgment of my Lord the Chief Justice. For the reasons given therein, I too would allow this appeal.