THE QUEEN v. CHAN WAN HUNG

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JUDGMENT

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Hon. Yang, C.J.:

1. The applicant Chan Wan-hung (D2) and his co-accused Lau Sau-shing (Dl) were both charged with two charges of wounding with intent. D2 was further charged with a third charge, that of attempting to pervert the course of public justice. Dl was acquitted of the two wounding charges and D2 was convicted of all three charges. The trial took place in the District Court before Judge Downey.

2. The prosecution's case on the wounding charges is that Chan Wai-yee (PW1), a ballroom or nightclub hostess, had borrowed money from a loan shark in 1988. She was either late in paying the interest or did not always pay it in full. On 26th March 1989, she was approached by a man said to be D2 who demanded repayment of the loan. She summoned her boy-friend Wong Chi-hung (PW4, the victim in the first wounding charge) to come to deal with this matter. PW4's evidence was that on arriving at the nightclub he saw two men. There was a conversation between the two men and PW4, and it was agreed that they meet the following day at the Mei Heung Restaurant at Portland Street, Kowloon.

3. Shortly after 6 p.m. on the 27th March 1989, PW4 arrived with his friend Lee Fuk-ping (PW5, the victim in the second wounding charge) and a third person. Two persons were there. After a short discussion about PW1's loan PW4 was struck a fist blow, whereupon a large group of armed men invaded the restaurant. There was a general fight which continued in the street outside the restaurant, and various weapons such as clubs, knives, stools and iron bars were used. PW4 and PW5 were wounded in the mêlée.

4. D2 did not give evidence. There is no dispute that his defence as it emerged from cross-examination was simply that he did not visit PWl's place of work on the 26th March, and that whilst he had spoken with PW4 on the 27th March in the restaurant he did not take part in any fight.

5. D1 gave evidence on his own behalf. The learned trial judge summarized Dl's case as follows: "The whole thing is a sad and tragic mistake; I am as much a victim as the other victims."

6. The real issue in this case was stated by the learned judge in these terms: whether the prosecution has proved beyond reasonable doubt that these defendants either inflicted those wounds, or some of them, or were parties to a common purpose by others to inflict such grievous injuries.

7. In his Reasons for Verdict the judge reviewed the discrepancies in the evidence of the prosecution witnesses and came to the view that they did not affect the substance of the evidence of the three principal prosecution witnesses, namely, PW1, PW4 and PW5. The evidence of another prosecution witness Miss Tang Law-law (PW3) the judge found did not assist the prosecution very much.

8. Having considered in detail the evidence of the prosecution witnesses, and also bearing in mind the evidence of D1 himself, the judge found him not guilty.

9. Coming to the case against D2, the learned judge found that D2 went to PWl's nightclub on the 26th and spoke to her about the repayment of her loan, and that he made an arrangement with PW4 to meet the following day at the Mei Heung Restaurant to discuss this matter. He also found that at that restaurant D2 punched PW4 and this led to a fight between various people inside the restaurant and in the street.

10. He then found, as a fact, that the presence of armed people in the vicinity was not coincidental but deliberate and premeditated, and their presence had something to do with the collecting of repayment of the loan to PW1. He further found that D2 was closely involved with the collection of that loan. On the evidence, he found D2 guilty of both wounding charges as being one of a party to a common purpose to inflict the injuries on the two victims even though he himself did not use any weapons.

11. The particulars of the third charge allege that PW1, being a prosecution witness in his forthcoming trial in District Court Case No. 563 of 1989 in which D2 had been charged with wounding with intent, he, on the 27th June 1989 at Portland Street, threatened PW1, to warn PW4 not to give evidence against him. D2's case was that he was not there.

12. Finding D2 guilty of the third charge, the judge found that D2 approached PW1 Chan on the morning of 27th June 1989 at Portland Street and told her to tell her boy-friend PW4 not to point him out and that he (D2) would not mind serving a sentence of imprisonment but he could not guarantee what would happen outside. Vague as these words were, the judge found, in our view correctly, that they implied a clear threat that something unpleasant might happen to PW4, and that the reference to not pointing out D2 could only mean withdrawing wholly or in part such evidence as PW4 might give against D2. The judge went on to say that the words uttered by D2 could not refer to any identification parade because that had already been held.

13. D2 did not give evidence, and the alibi evidence given by his brother in respect of the morning of 27th June 1989 was not believed.

14. The first ground of appeal is that D2's lawyer at the trial failed to give him any or any proper advice about the decision to give or not to give evidence. In an affidavit filed in support of this ground D2 stated that his lawyer had told him at the end of the prosecution case that the decision whether to give evidence or not was one for him to make. We do not accept that the absence of further advice can properly form the basis of a ground of appeal against conviction. We think that in fairness to his lawyer, however, we should mention that in answer to D2's affidavit he responded by way of a letter, the contents of which were not challenged, in which he stated that before the trial he had had a full discussion of the case with D2 and had given him advice on every aspect of the case. On three occasions, once near the conclusion of the prosecution case, and twice during the course of Dl's testimony, D2 clearly indicated to him his decision not to give evidence. This ground of appeal has no merit and must fail.

15. The second ground of appeal is that the judge erred in permitting a dock identification of D2 by PW1 without warning himself about the dangers of relying on such evidence. Whilst it would have been better for the judge to have warned himself, having regard to the other evidence, we do not think the ground could be sustained.

16. The third ground of appeal is that the learned judge erred in finding as a fact that D2 punched PW4 in the restaurant and that this led to the break out of fighting.

17. The evidence against D2's involvement comes from PW1, PW4 and PW5. PW1 identified D2 in the dock, as the sole person who arrived at her nightclub on the 26th March to demand repayment of the loan. Her evidence was that when her boyfriend PW4 arrived at the nightclub, she took him to a room where D2 was sitting and left them there.

18. PW4 attended an identification parade on 18th May 1989 and identified a man as one of the two persons who had spoken with him in the restaurant on the 27th March and hit him. It was conceded in his lawyer's final submission that PW4 had identified D2 at the identification parade. In giving evidence, however, PW4 professed not being able to recognize the man he saw at the nightclub on the 26th or the person who hit him with his fist on the 27th as the incidents  had occurred a long time ago.

19. PW4's evidence was that he spoke to two men at the nightclub, and he also spoke to two men at the restaurant in a discussion about the money owed by his girlfriend. PW4 also said, "Somebody hit me after saying less than two sentences," and that somebody was the one who had talked with him at the nightclub. This person must be D2, whom he identified at the identification parade.

20. PW5 at the same identification parade on the 18th May identified D2. In evidence he said that D2 "seemed to have appeared in the restaurant" and he could not remember what else D2 did.

21. In our judgment the evidence of PW4 was sufficient to support the judge's finding that D2 punched PW4. That the punch was immediately followed by a general affray with weapons is not in dispute. This third ground of appeal therefore fails.

22. The fourth ground of appeal is that the judge used his erroneous finding as described in the third ground "as a plank in reaching his finding of fact that the applicant knew that there were 'others waiting in the wings' and that he knew 'what was going to happen'".

23. The clear evidence is that immediately upon D2's fist blow, a group of 10 to 20 armed men rushed into the restaurant and attacked PW4 and PW5 and their companion. A fight broke out. It seems to us that the only inference that the trial judge could draw was that it was a planned attack in which D2 and the assailants shared a common purpose. This ground of appeal too must fail.

24. There is nothing in the fifth ground that the judge failed to consider the implications of rejecting the identification of D1 by PW4 and PW5 when relying on the same witnesses' identification of D2. Nor is there substance in the sixth and final ground that whilst the judge entertained the possibility that D1 was injured by PW4 and PW5 or the third man in their company, he failed to consider that the evidence of PW4 and PW5 might have been tainted by improper motive e.g. in having their own purpose to serve. There is nothing in the Reasons for Verdict which might indicate that the trial judge had failed to appreciate the fundamental considerations required of him when evaluating the evidence.

25. For the reasons given the application for leave to appeal against conviction is dismissed.