HKSAR v. NG LAP CHIU

CACC 459/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 459 OF 2004

(ON APPEAL FROM DCCC 526 of 2004)

____________________

____________________

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 7 September 2004, the applicant, aged 21, was convicted in the District Court of assault with intent to rob, contrary to section 10(2) of the Theft Ordinance, Cap. 210, following a trial before Judge Chua.  He was sentenced on 11 October 2004 to 2 years and 9 months’ imprisonment.  The applicant now seeks leave to appeal against conviction.  He has not proceeded today with his application in relation to sentence and accordingly this is dismissed.

2.  The facts were straightforward.  The alleged victim (PW1) gave evidence which was directly at odds with the applicant’s account.  The verdict depended, therefore, on whether the judge accepted the account given by PW1.  Most of the grounds of appeal criticise the judge’s approach to the testimony which had led her to be satisfied that it was PW1 whose account was to be believed.

Prosecution’s case

3.  The case for the prosecution can be described very briefly.  On 20 March 2004, PW1 was playing mahjong in a mahjong school in Yuen Long when, at about 5:30 p.m., the applicant joined his table.  Soon afterwards, PW1, who had by then won about $6,000, decided to leave.  However, as he was walking away, he was confronted by a teenager who tried to take his winnings.  As PW1 called out and grabbed hold of the culprit, the applicant allegedly rushed up to PW1 and made a further attempt to take away his cash winnings.  PW1 was struck a number of times, and received a particularly hard blow near the right eye, but he managed to keep his money safely inside his trouser pocket.  When PW1 eventually fell down inside a shop, the applicant left the scene. 

4.  PW1 took a taxi to report the attack to police.  They, in turn, called an ambulance and the doctor who examined PW1 found redness and swelling over the forehead and right peri-orbital region and an area of redness over PW1’s back.

5.  PW1 had seen the applicant twice before this incident but was not well acquainted with him.

Defence case

6.  The applicant gave evidence.  In short, he claimed that PW1 had lied about what happened.  On his version, he had won $4,000 at the mahjong table from PW1 and, when he decided to leave, PW1 tried to persuade him to continue playing.  This led to an altercation between the two men.  PW1’s injuries were the result, the applicant said, of the force he had used to defend himself.  He agreed that he had punched PW1 in the eye causing PW1 to fall backwards.

Grounds of appeal against conviction

7.  Seven substantive grounds of appeal were advanced by Mr    Y C Yeung on the applicant’s behalf when submitting that the conviction was unsafe or unsatisfactory.

(1)  Assessment of evidence

8.  In the 1^st ground of appeal, it was submitted that the judge failed in her Reasons for Verdict to demonstrate that she had sufficiently “evaluated” the evidence by limiting her reason for rejecting the applicant’s evidence to a single sentence, namely:

“

19.

Whatever is the reason that no one came to PW1’s aid, whether the defendant’s husky appearance discouraged interference, whether it was all over before people could react or a general disinclination to get involved, I am satisfied beyond reasonable doubt it was PW1who had told the truth and it was the defendant who had made up his version of events.”  (Appeal bundle pp. 8-9)

9.  The Reasons for Verdict are extremely brief, extending to just over 3 pages, but this was an unusually straightforward case.  The conflicting versions are adequately summarised in the Reasons for Verdict and it is apparent that the areas of dispute had been clearly understood by the judge.

10.  It seems unfortunate that we should have to repeat the time-honoured passage from R v R.E. Low [1961] HKLR 13 but Mr Yeung appears to have forgotten the simple formula setting out a district judge’s duties which was succinctly expressed by Blair-Kerr J.  This was considered and approved in R v Sheik Abdul Rahman Bux and Ors [1989] 1 HKLR 1 at 4-5 and is as follows:

“It was contended by Mr How that a district judge’s statement of his reasons for verdict prepared in pursuance of s. 30 of the District Court Ordinance was comparable to a judge’s summing-up to a jury.  I do not agree with this view.  The district judge’s only statutory duty is to record a short statement of the reasons for the verdict.  There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence.  Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a judge misdirects a jury on a matter of law.  Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court.  But it must be remembered that the district judge is himself the jury.  He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how ‘the mind of the jury’ was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict.  But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the district judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the district judge’s findings if, having regard to the whole of the evidence, such findings appear reasonable.”

11.  Keeping these considerations in mind, it follows that the 1^st ground has no substance.

(2) and 4(i)  Inference drawn by judge

12.  In the 2^nd ground, reflected also in ground 4(i), the point was made that no reason was stated by the judge for drawing “the inference from PW1’s cross-examination that the accomplice had been mentioned in his first statement to the police made the next day (i.e. 21 March 2004)”. 

13.  The defence at trial had tried to undermine PW1’s credibility by suggesting that he had not referred to the “teenager” accomplice when the complaint was first made in the police station on 20 March 2004.  However, from a reading of the transcript (at pages 60-61) it is apparent that the judge was entitled to draw the inference that this person was mentioned in the witness statement made on the following day and quite obviously, had PW1 not done so, the statement would have been put to him to reinforce the point.  This is, in any event, a matter of no consequence as it is now confirmed that the inference was correctly drawn because PW1 had mentioned the accomplice in his statement.  Perhaps even more importantly, the judge was obviously alert to the point being made and, in her Reasons for Verdict, actually commented:

“

16.

Even PW2, the police officer to whom PW1 spoke on the telephone from the hospital, said at the initial brief report PW1 had not mentioned the teenager, the defendant’s alleged accomplice.”  (Appeal bundle p. 8)

(3) and (6) Reliance on demeanour and physical appearance

14.  In the 3^rd and 6^th grounds, complaint was made that the judge “over-relied” upon the demeanour and physical appearance of PW1 on the one hand and the physical build of the applicant on the other when considering the evidence of what was essentially one man’s word against another.  Mr Yeung submitted that PW1’s story was “inherently improbable” and that a better approach would have been to look for the probabilities of what may have occurred when deciding where the truth lay.

15.  No doubt there is much to be said for examining evidence to see where the probabilities lie but, in this case, to do so would not assist the applicant at all.  The applicant’s account in brief was that he had been winning at mahjong at PW1’s expense and yet PW1 was anxious for him to stay.  He said that PW1 was so unhappy that he had to “scold” him.  After that, he was, according to the applicant, accosted by PW1 who insulted him by referring to him as the “guy with the little prick”.  This led to insults being exchanged between them.  The inherent improbabilities in this story are manifest.  In the first place, PW1 was markedly smaller than the applicant and the judge’s reference to the comparative sizes of the combatants was a highly relevant consideration.  Furthermore, if the applicant was on a winning streak, the last thing PW1 would have wanted, as a matter too obvious to require statement, was for him to stay.  It is common knowledge that at a mahjong school there will normally be others with whom to play.

16.  Both demeanour and physical build were matters which the judge was obviously entitled to take into account.  These grounds fail.

4(ii) and (iii)  Evidence left insufficiently considered

17.  It was alleged under ground 4(ii) and 4(iii) that the judge failed to consider two aspects of the evidence sufficiently.  These related, firstly, to the fact that PW1 had taken a taxi to go to the police station instead of making use of his mobile telephone to call the police and, secondly, to the fact that not a single person came to PW1’s assistance in the crowded area where he had described the attack as having taken place. 

18.  This submission contradicts the clearest consideration by the judge of these aspects of the evidence.  We have referred already (at para. 8 above) to the judge’s comment to the effect that she did not believe the applicant’s account whatever may have been the reason that no one had come to PW1’s assistance.  Before this observation, the judge had set out the defence arguments as advanced at trial, with an economy of words which is to be applauded, when saying:

“	5.	… The defendant continued to hit him and trying at the same time to get at his pocket.  PW1 held on fast to his pocket.
	6.	In this fashion they stumbled into the “outlet 100” shop, where he fell down.  It was a minute before he got up and composed himself.  By this time the defendant had disappeared.
	7.	He did not think to use his mobile phone to call the police.  The police station was close by.  He got in a taxi and went to the station.  The police called an ambulance.
		…
	14.	(Defence counsel) has submitted it is unthinkable that on a Saturday evening in that busy part of Yuen Long where the shops were still open and there were many people about, a man, as well-known as the defendant was to PW1, would dare to try and rob and assault him.
	15.	PW1’s version, he submitted, had been made up by him after the fracas in the lane, which had happened earlier in time, for PW1 took time to fume and dream up a way to get back at the defendant.  That was why, despite all the shouts for help PW1 had purportedly made and cries to call for the police, no pedestrian, no shop assistant, no guard at the jewellery shop had done anything.”  (Appeal bundle pp. 7-8)

19.  These passages were obviously overlooked by Mr Yeung but they take away any semblance of merit in the points raised under this ground.

(5)  Entering the arena

20.  The 5^th ground of appeal, plainly something of an afterthought as it comes as the 1^st ground under the guise of a document referred to as “supplemental perfected grounds of appeal”, alleges that the judge stepped into the arena by interrupting defence counsel and conducting cross-examination herself.  We were provided with various transcript references allegedly illustrating this complaint.  Taking these in turn, the judge:

(1)	prevented counsel from revealing PW1’s home address in open court (p. 36J);
(2)	tried to establish the relevance of questions put to PW1 about the geographical layout of the area in relation to plans and photographs (pp. 39E-43F);
(3)	tried to follow a particular question (p. 43L);
(4)	attempted to simplify the questions PW1 was being asked (pp. 44Q-45F);
(5)	tried to establish the issues having earlier (at page 40) been inadvertently misled (pp. 46D-48R);
(6)	tried to assist with more succinct questions to PW1 (pp. 49H-50E);
(7)	sought to establish the relevance of a question (pp. 50T-51A);
(8)	discouraged repetition (p. 53J-O);
(9)	assisted counsel in making his point (p. 54J-P); and
(10)	asked the applicant questions for the purposes of clarification at the conclusion of his evidence (p. 77H-O).

21.  While some of the judge’s interruptions may well have prolonged the proceedings none of them were hostile in any shape or form and they were perfectly sensible.  In short, as Mr Tam Sze-lok submitted on the respondent’s behalf in his written argument on which he was not called upon to add, none of the interruptions amounted to improper judicial conduct and from the point of view of the informed bystander listening to the case it is our view that no such person would describe the applicant’s trial as having been unfair.

(7)  Mens rea of the offence

22.  In the last ground which was advanced it was submitted, together with other matters with which we have already dealt, that the judge failed to consider the mens rea of the offence.  However, as we have indicated, the only real issue in the case related to the credibility of PW1’s allegation that he was attacked by the applicant in the course of an attempt to steal his mahjong winnings.  The judge was perfectly entitled, having no doubt that PW1 had spoken the truth, to find that “the ingredients of the charge” had been proved beyond reasonable doubt.  This ground is without foundation.

Conclusion

23.  The application is dismissed.