R. v. LAU MAN KEI

IN THE COURT OF APPEAL

1995, No.684
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced two charges both of wounding with intent. The first alleged that on 23rd August 1994 at an unused refuse room on 14th floor, Po Ning House, Po Lam Estate, Tseung Kwan O, Kowloon, he, together with persons unknown, unlawfully and maliciously wounded Wong Ka-po (PW1) with intent to cause him grievous bodily harm. The second charge was identical except that the victim named was Chan Man-pan (PW2). He pleaded not guilty to both charges and was, after trial in the District Court before Judge Kilgour, found guilty and sentenced to imprisonment for four years on each with the sentences to be concurrent. He now seeks leave to appeal against those convictions.

2. It was the Crown case that at about 1 a.m. on 22nd August 1994 PW1 and PW2 were in the unused refuse room of which mention was made in the charge. Someone knocked on the door of the room and PW2 went to open it and found about six persons outside, two of whom wore plastic gloves and held knives in their right hands. The men rushed into the room, and closed the door and assaulted the two victims with the knifes. Shortly thereafter, having inflicted a number of wounds, they desisted, left the room and fled with their accomplices.

3. Both of the victims gave evidence that they had seen the applicant that afternoon at a meeting at the Fairwood Restaurant in Po Lam Estate. At this meeting PW1's relationship with a 13-year-old girl called Lai Ching-lam had been discussed and objected to by her older sister Lai Ching-man who was, it appears, the girl friend of the applicant. According to PW1, the applicant told him not to associate with Lai Ching-lam.

4. PW1 and PW2 both said that the applicant was the man at the meeting at the Fairwood Restaurant and both said that he was one of the two attackers. Both later identified him at an identification parade.

5. The applicant also gave evidence in which he said that he was at the Fairwood Restaurant but that he had adopted the role of a conciliator. He said that at the time when the attack occurred he was with friends and was going to restaurants and to video game parlours. He denied that he had played any part at all in the attack. He called two alibi witnesses, one of whom was the girl Lai Ching-man.

6. The trial judge having heard the evidence, made the following findings:

"Having considered the defendant's evidence as far as the alibi is concerned, and having considered the burdens that lie on the prosecution, I am nevertheless satisfied beyond reasonable doubt, that because of the evidence of Miss Lai's father, because of the inconsistencies raised in cross-examination, as well as the confessions or admissions made by the witnesses as to their presence in Tseung Kwan O, and because of the identification evidence, that the prosecution has, beyond reasonable doubt, disproved the alibi of the defendant.

At the end of the day, therefore, I find beyond reasonable doubt, that the first witness and the second witness have properly identified the defendant as being part of a two-man attack on them on the evening of 22 August. That whoever the other man was, and even though the defendant may not have attacked the first victim but had only attacked PW2, that what happened was part of a joint enterprise and that this joint enterprise was to unlawfully and maliciously would Wong Ka-po and Chan Man-pan with the intent to cause them grievous bodily harm. That being so, it is my duty to find you guilty on both counts."

7. Mr. William Stirling, who appears for the applicant, has relied upon, but not argued, Perfected Grounds of Appeal which were drafted by Miss Corrine Remedios. We have perused and considered those grounds. We do not intend to deal specifically with the matters raised therein but to turn rather to the real thrust of this appeal as argued by Mr. Stirling. It was his contention that the trial judge in effect dealt with the matter in reverse order; that he first decided that the real key to the matter lay in the meeting at the Fairwood Restaurant and having so decided was then satisfied that the person involved in that meeting, the applicant, must have been the one who was involved in the later attack. It was argued that because of this the judge did not give proper consideration to the identification evidence which, on Mr. Stirling's submission, was suspect and should have been rejected.

8. The passage upon which emphasis is particularly placed in this regard is as follows:

"As far as the identification is concerned, the attack, if one looks at the photos in P2, must have taken place in very close proximity. The lighting was described by PW1 and he alluded to a neon light; he said it was not particularly good but was clear enough to see people who were in the room. The light itself is actually set out in the photographs in P7. It seems to me that in the circumstances, given the background to this offence, it was not a difficult situation for the victim to identify persons who came into that room to attack him. The victim was cross-examined at some length but said he was sure that one of the persons who came into the room was the defendant." (Emphasis supplied.)

Before making that statement, the judge had said:

"In every identification case, the judge has to warn himself about the dangers of mis-identification and I remind myself of the well-known case of Turnbull, in which all the criteria for identification were set out."

There can be no doubt, therefore, that the judge had the criteria set out in Turnbull in his mind when considering the evidence. We have nonetheless the submission made to us that the judge laid undue and improper emphasis upon what he described as "the background" to this offence. We cannot accept that submission. The judge, we are satisfied, was doing no more than saying that, given that PW1, the identifying witness with whom he was then dealing, had seen his attacker only a matter of hours before and had spoken to him for some half an hour, "it was not a difficult situation" for him to identify that same person as one of the attackers. We do not consider that there is any warrant for submitting that the judge somehow considered the matter in reverse order or failed properly to have in mind the dangers of identification evidence in the circumstances which existed.

9. The next matter argued by Mr. Stirling was a submission that the identification was suspect because it was made after police pressure had been brought upon PW1 to identify an assailant. In this regard Mr. Stirling relies particularly upon a passage at p.45 of the transcript in which questions were asked of PW1 in cross-examination as follows:

"Q. At the scene did they ask you if you had any grudges with anyone or reasons for someone to chop you?

A. Not yet.

Q. Did they ask you at the hospital?

A. Yes.

Q. When they asked you this at the hospital, did you think back to that afternoon incident and tell them what happened?

A. Yes."

Mr. Stirling suggests that this indicates the possibility that the victim was only prepared, wrongly, to volunteer the name of the applicant after he had been pressed improperly into so doing. There is nothing improper in asking a victim if he has any suspicion as to the identity of the attacker. It seems further to be suggested that PW1 only identified the assailant after being shown a photo but this, as the passage at p.46 shows, was not the case.

"Q. Why did they show you the photo?

A. Because I told the police that is Lai Ching-man's boyfriend who chopped me.

Q. Did they show you the photos?

A. The police arrest that person and ask me whether that he was Lai Ching-man's boyfriend. I said 'Yes'."

We are satisfied that this indicates that the information had already been volunteered by the applicant before any photograph was shown to him and we are by no means satisfied that there was any evidence that he was pressured in any way into giving information and making a false identification.

10. These were the principal submissions of Mr. Stirling. We have considered, as I have said, the other matters raised in the grounds drafted by Miss Remedios. We do not need to deal with them other than to say that we do not consider that anything of real weight was raised therein. We are satisfied that the trial judge dealt with this matter with care and that his conclusion cannot be called into question, the application must, therefore, be refused.