R. v. SIU CHIN HUNG AND OTHERS

IN THE COURT OF APPEAL

Magistracy Appeal

1992 No. 917

HEADNOTE

Sufficiency of circumstantial evidence to establish a case to answer - sufficiency of warning as to evidence of accomplice. Use of inculpatory parts of accomplice evidence when drawing inferences against defendants - propriety of detention centre order on defendant's guilty of a gang attack.

IN THE COURT OF APPEAL

Magistracy Appeal

1992 No. 917

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J U D G M E N T

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1. The appellants in this matter were the 2nd, the 4th and the 5th defendants at trial and will, for convenience sake, be referred to as D2, D4 and D5. They, together with three others, faced two charges of assault occasioning actual bodily harm, two charges of robbery and one charge of common assault. In the first charge of robbery it was alleged that the 6th defendant, on 5th August inside the Manhattan Disco on the 4th floor of New World Harbour Hotel, robbed Peter Ong of a necklace valued at $5,000. The second charge of robbery was identical except that the victim of that robbery was Tang Kam-fai and the necklace was valued at $4,000. The two assaults occasioning actual bodily harm and the common assault also particularized the same time and place; the victims being Peter Ong in the first assault occasioning bodily harm, Ip Po-kee in the second assault occasioning actual bodily harm and Tang Kam-fai in the common assault. The appellants pleaded not guilty and were tried in Easter Magistracy before Mr. P.J. Line. The three appellants were found not guilty of the robbery charges but guilty of the assault charges and each was ordered to be detained in a detention centre. They now appeal against both convictions and sentences.

2. It was the prosecution case that the assaults took place in the Manhattan Disco. It appears to be common ground that there had been what was referred to as a bumping incident in the lavatories involving a young man who was not before this court and a member of a party which included the victims. Although this incident was apparently settled, the young man returned shortly thereafter with a group which he led in an assault upon the victims.

3. The Magistrate, rightly in my view, identified the issue in the case as being whether the five defendants on trial had been proved to have taken part in the attack. He made a careful statement of findings a substantial portion of which, in order fully to set out the background to the matter, I shall read. He said:

"3. The victims could not identify the defendants on trial. They could identify two gold necklaces which had been snatched from their necks in the course of the attack. The defendants were stopped shortly after the incident as they drove through the cross harbour tunnel. D3 was wearing one of those necklaces and the other lay on the floor on the vehicle. A witness had taken the number of this vehicle as it left the New World Hotel at the material time.

4. The only evidence from the defence came from D3. His case was that the five defendants had been driving around together when he received a message from a friend asking him to go to the Manhattan disco. The five went there and on entry saw a man bleeding and the disturbance caused by the attack. They stayed there two to three minutes and left. They all entered the vehicle and then received another message from the friend to meet nearby. They did so, remaining in their vehicles. The friend threw the two necklaces through the open window into the car with the defendants in it. They drove off in convoy. D3 put on one of the necklaces.

5. The victims (PWs1, 2 & 3) were good witnesses. I found them to be honest and as accurate as the circumstances allowed. There was no real challenge to their evidence. The only issue which arose was whether the necklaces found in the car were their property or merely identical necklaces from a different source. At the close of the prosecution case there was ample prima facie evidence that the necklaces were those of the victims given the linking of the motor vehicle so shortly before to the place of the crime, the identification of the items by the victims, the inherent unlikelihood of two identical necklaces turning up in sun circumstances as described by the police officer PW4 and the fact that the hook on one of them was still straightened out. Nothing in the evidence of D3 led me to doubt that these necklaces were the ones taken from the victims, and having heard all the evidence I was sure that this was the case.

6. The police officer, P.W.4 was a sound witness unshaken by cross examination. I accepted his evidence that D3 was trying to take off the necklace that he wore before robbery or assault was mentioned, as I judged him to be an honest witness who had cause to remember seeing that which he reported.

7. PW5 was the man who took the number of the vehicle as it left the hotel. It was suggested that he was mistaken. He very fairly conceded that there was a possibility of mixing up the number with a vehicle he had seen later, but he would not resile from his assertion that DY 7900 was one of the vehicles the people in question got into. There was ample prima facie evidence at the close of the prosecution case to link the car to the hotel. Having heard D3 admit that he and the other defendants left there at this time as a group and got in the vehicle which they stayed in until stopped by the police, I was sure that PW5 had correctly remembered the number.

8. D3 was not a good witness and I did not believe his explanation of his presence and conduct at the disco or his explanation concerning the necklaces. I found him to be both glib and facile. His story was thin and unworthy of belief. I accepted that he went to the disco with the other defendants and that they all went there and left there as a group. I bore in mind that D3 was an accomplice when considering the cases of the others and that he may well have motives to look after himself at their expense.

9. The failure of D2, D4 & D5 to give evidence was of course no evidence of guilt. It followed that if I rejected the explanations of D3, which I did, it left the prosecution evidence uncontradicted and unexplained.

10. Based on the facts that the aggrieved young man led the attack and the immediacy of the violence of it I inferred that he had recruited the others for the purpose of the attack and I concluded that a joint enterprise had been born, the object of which was to assault those young men on the opposing side. It mattered not whose hand struck which blow or threw which glass if the defendants participated in the joint enterprise. This was a group attack which was planned and I was sure that each of the defendants on trial was part of the attacking group. I rejected the idea that there were two groups arriving and leaving in the time it took for this attack, especially when the necklaces taken in the attack were found in the vehicle carrying the defendants so shortly thereafter. Of course I addressed the idea that a member of the group may have decided to take no part and that they were merely present but intended to do nothing to help and did nothing to help. I found the words of Abbot C.J. as set out in Cross on Evidence 6th Edition page 34 to be helpful:

'No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction if the conclusion to which the prima facie case tends to be true, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends?'

I have used another's words as it is easy to let a looseness of language give the appearance that the burden of proof has shifted from the prosecution. It had not and I bore in mind the criminal burden and standard throughout. What the prosecution established was sufficient to found a conviction in the absence of a credible explanation from any source. The purpose of the joint enterprise was to be ascertained from what immediately occurred, which was the violent attack. It followed that I could not be sure that these defendants were guilty of the robberies as they could reasonably have been the unplanned and independent crime of an individual in the group. Accordingly I convicted of the assaults and dismissed the charges of robbery, there being no issue that the relevant victims received the relevant injuries in the attack.'

4. Mr. Poon who appears for the appellants has argued a number of grounds. His first major submission was that there was insufficient evidence to establish a case to answer and that the magistrate should, therefore, have dismissed the charges after hearing the Crown evidence. That being so he submitted that this court should quash the convictions without turning its mind to consider the further evidence placed before the trial court which was given by the 3rd defendant. None of the appellants gave evidence. He submits that there was no identification of the appellants, this is correct; that the appellants made no admissions, this also is correct; that PW5, the witness who identified the number plate of the motor vehicle gave no evidence of any attack, that also is correct. This ground of appeal suggests that the only evidence in the Crown case against the appellants is that they were found "travelling on a vehicle 20 minutes after the crime together with the 3rd defendant who was found in possession of two gold necklaces purportedly belonging to two of the three victims and that the registration number of the vehicle was purportedly identified by PW5 who however conceded that he might have been mistaken with the same".

5. This submission runs contrary to the facts as found by the Magistrate. He found positively that the two necklaces did belong to the victims and that they had been taken from them in the course of the attack. There was, on his findings, no uncertainty such as is suggested by the use of the word "purportedly" in the ground set out above. Further the Magistrate found that PW5 had correctly identified the number plate of the vehicle. There was again, on his findings, no doubt on that matter such as is suggested by the wording of the ground.

6. At the end of the Crown case there was evidence that an attack took place in the nightclub by a group of at least 10; that shortly after the attack five people came down from the area where the nightclub was situated and boarded a vehicle. There was further evidence from the police officer that when the vehicle was stopped one necklace was found on the floor of the vehicle and one around the neck of the 3rd defendant. These necklaces were positively identified as those which were taken in the course of the attack. The Magistrate was, in my view, quite correct in finding that there was a case to answer.

7. Mr. Poon then argued that there was no evidence from which a joint enterprise could be inferred. He was critical of the finding in which the magistrate said:

"I inferred that he had recruited the others for the purpose of the attack and I concluded that a joint enterprise had been born, the object of which was to assault those young men on the opposing side."

That finding, I am satisfied, was a perfectly proper one. There was ample evidence from which the magistrate could draw such an inference.

8. The real issue was not whether such an inference was open to the magistrate (it clearly was) but whether he was correct in coming to his conclusion that the three appellants were three of the persons involved in the attack. It was, as the magistrate said at the very outset, one which involved in deciding whether it had been proved that the defendants had taken part in the attack. The evidence of D3, the exculpatory parts having been rejected, was very damaging indeed against the three appellants. It placed them in a vehicle which, after a message had been received by D3, went directly to the building in which the nightclub was situated. It placed them in the nightclub itself where the attack took place. It identified them as persons who left the nightclub immediately after the attack and boarded the vehicle which was later found to contain the two necklaces. I am satisfied that the magistrate was right when he found that evidence sufficient to establish that the three appellants had taken part in the attack.

9. There was also criticism of the magistrate on the ground that the evidence of D3 was uncorroborated and that the magistrate had not sufficiently and properly warned himself before acting thereon. A reading of his Statement of Findings sets that submission completely at naught. He noted that D3 was an accomplice. He noted the dangers inherent in accomplice evidence and he reminded himself throughout that the criminal onus applied.

10. It was also suggested that the magistrate was wrong in convicting upon the assault charges while at the same time acquitting on the robbery charges. I find some difficulty with this submission. It is not easy to understand how it can be suggested that the magistrate was wrong when, acting with commendable caution, he stated that the robbery charges might have been the spontaneous act of one or more of the persons who were members of the party involved in the assault. In my view he was both right and fair in the decision to acquit on those charges.

11. On the evidence overall I have no hesitation in holding that the magistrate was right to draw the inferences which he did and that there is nothing which makes the convictions either unsafe or unsatisfactory.

12. I turn now to the matter of sentence.

13. When sentencing the magistrate said:

"This was a planned attack where the victims were set upon without warning and glasses were thrown. Two of the victims received not insignificant lacerations. Such violence by groups of young men, often following some alleged slight, are common enough in the magistracy to cause concern. In my judgment such conduct has to be met with an immediate custodial sentence. These defendants had not been provoked. There is a real difference between violence used as a reaction in the heat of the moment and those who are invited to use it and decide to use it."

The magistrate then proceeded to order that the appellants be detained in a detention centre.

14. The first matter argued in the appeal against sentence by Mr. Poon is that there was no evidence as to the extent of the participation of the appellants and as to their exact degree of criminality. He suggested that there was nothing to show that they had not simply been at the scene and, to use a colloquialism, got in over their heads. Issue was taken with the words of the magistrate when he said:

"...those who are invited to use it (namely violence) and decide to use it (namely violence)."

It was submitted that there was no evidence to support that finding. I am satisfied that the magistrate was there saying no more than that the attack was not a reaction in the heat of the moment. He was satisfied upon the evidence that they had participated in the attack and he was sentencing them upon the basis of that participation. He was entitled so to do even though there was no evidence of the exact nature of the individual participation.

15. It was next argued that the magistrate had failed properly to assess the facts, to take the character of the appellants into consideration, to give full consideration to the record of the 2nd defendant and to the clear records of the other two defendants. I find nothing material in these suggestions. The magistrate clearly had in mind all of the matters placed before him when he came to his conclusion as to the proper sentence.

16. Mr. Poon next submitted that this was not, in the circumstances obtaining, a proper case in which to impose an immediate custodial sentence. I cannot agree. I am satisfied that the magistrate was right in his observation that such violence following upon alleged slights is common enough to cause concern and should be met with an immediate custodial sentence. The order he made of detention in a detention centre was in the circumstances an entirely appropriate one.

17. Mr. Poon finally argued that the appellants had already been four months in custody and that this court should regard that as being sufficient. Given that the order of the magistrate was a proper one it would be quite wrong for this court to tinker with it in that way.

18. Both the appeals against conviction and the appeals against sentence are, for the reasons which I have set out above, dismissed.