THE QUEEN v. CHAN SING, JIMMY

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Chan Sing, Jimmy was convicted, on 10th January 1991, by Mr. G.P. Muttrie, sitting as a Deputy Judge in the District Court of wounding with intent, contrary to s.17 of the Offences against the Person Ordinance, Cap. 212 (1st Charge) and with claiming to be a member of a triad society, contrary to s.20(2) of the Societies Ordinance, Cap. 151 (2nd Charge). On the same day he was sentenced to concurrent sentences of 3 years' imprisonment on the 1st Charge and 3 months' imprisonment on the 2nd Charge. He seeks leave to appeal against his convictions.

2. The case for the prosecution was based upon the evidence of Lau Chi Keung who was the alleged victim in the wounding charge. He gave evidence to the following effect. On 24th April 1990, at about 7 a.m. he went to the Sun King Restaurant in Austin Road in company with a friend of his named Chung Chi Keung. He met the applicant, who was known to him there. An argument was going on. He tried to intervene, whereupon the applicant scolded him in foul language as well as claiming to be Lo Sun Sun Yee On. We mention here that it was not in dispute that this is a triad society. After two patrolling police officers had checked the identity cards of those present, having been attracted by the noise of the argument, Lau left the scene.

3. Lau went on to testify that he went drinking with Chung on the night of 28th/29th April. The two friends ended up at the Manchu Lounge, a drinking place in Ashley Road, Tsimshatsui. Lau found his girlfriend there and sat drinking with her for an hour or two. He then had more drinks at the table at which Chung was sitting. He later saw his girlfriend off in a taxi, and was walking back towards the Manchu Lounge when he felt a blow on his head. When he looked back he saw the applicant holding a knife by his side. As he ran away, he was struck on the head again. He managed to ward off a third blow with his hand which was cut. He did not see who had struck the two blows after the first. He was taken to hospital by Chung. Lau accepted that he had not told his friend Chung who it was that had assaulted him.

4. As the judge put it, the victim's skull was "literally split open, exposing the dura and requiring cranial surgery including a partial lobectomy". The evidence showed that although he was discharged from hospital on 14th May, it was not until he made a statement to the police on 1st June that he first named the applicant as his attacker.

5. Chung supported Lau's evidence about the events on 24th and 28th/29th April but, of course, he did not witness the assault upon his friend.

6. The applicant elected not to give evidence and called no witnesses. In his grounds of appeal he pointed to a number of discrepancies between the evidence given by Lau and that given by Chung and said that these discrepancies had been acknowledged by prosecuting counsel. He said that the judge had failed to consider that no motive for the attack had been shown, and had failed to place sufficient weight on the fact that the incident had not been reported until 1st June, although the applicant had been discharged from hospital on 14th May. He felt that the judge had been prejudiced against him because he had chosen not to give evidence.

7. When invited to address us this morning the applicant said he had nothing to add to his written grounds of appeal. There is no doubt that there were difficulties in this case. It is clear, as the applicant has emphasised, that the victim did not name his assailant to the friend who was with him, and who went with him to hospital. Nor did he apparently make any report to the police about the incident naming the applicant as his attacker, from the time he left hospital on 14th May until 1st June. Also there is no doubt that the victim had been drinking for a very considerable time before he was assaulted, although he denied that he was drunk. However, all these matters were carefully considered by the learned deputy judge and we find no merit in any of the grounds raised by the applicant. We are satisfied that the convictions on both counts were unassailable. We therefore refuse his application for leave to appeal against either of the convictions.