R. v. TAM SIU LUNG and Another

IN THE COURT OF APPEAL

1995, No. 200
(Criminal)

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J U D G M E N T

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

1. The 1st applicant, Tam Siu-lung ('D1'), and the 2nd applicant, Chan Tsz-leung ('D3') on 4th April 1995 were convicted by Her Honour Judge C.B. Chan each of two offences of wounding with intent two victims. The applicants now seek leave to appeal against those convictions.

2. The facts are as follows. At approximately 10.30 pm on 2nd September 1993, a group of youths was talking together in the open space outside Block 22, Sau Mau Ping Estate in Kowloon. The group which included the two victims, Cheng Man-ho and Lee Chi-wai, were attacked by a second group of 6-7 youths who rushed at them. The second group was seemed to be armed with long knives and lengths of water piping which they were brandishing. The first group scattered but the two victims were taken by surprise and unable to escape. Numerous severe knife wounds were inflicted upon them. They were covered with blood. The second group which carried out the attack then ran off towards the nearby Hiu Kwong Street, on some of the evidence, splitting into two lots.

3. Round about that time, four police officers in a car were on an anti-crime patrol in Hiu Kwong Street. They saw three men running very fast down the road, one of whom was carrying a long knife and the other two, lengths of water pipes. Behind them was another group of four men similarly armed, also running. Their observations were that the three men went to one taxi. In their approach two of them discarded two water pipes before they got into the taxi. The other four apparently, and I say that because the evidence on this was not very precise, appear to have left in a second taxi which was stationary behind the first taxi, but which took off first and at some speed.

4. The police party managed to stop the first taxi. The two applicants were found in it along with a third person; they became the three defendants at the trial below. The evidence was that they were wearing gloves which were blood stained. Their clothes were also blood stained. Later, some of the blood stains were shown by expert evidence to be of the same group as that of the two victims. Also found in the taxi was a long beef knife. The two lengths of water piping mentioned were recovered and one was found to have traces of blood. That somewhat bare outline of the facts which does not attempt to go into aspects of the evidence that was the subject of some mutual variance and in part inconclusive, suffices to enable us to turn to the grounds of appeal beginning with those of the 1st applicant.

5. Mr M. Gerber who also appeared for him below takes as his first point the first ground of appeal which was framed in the following way:

"The Learned Trial Judge failed adequately or at all to resolve the discrepancies between the various time estimates of the offences and the time of arrest of the Applicant."

He places considerable importance upon this for the obvious reason that there was no direct evidence linking the group of attackers who ran away with the three persons, i.e. the defendants in the trial below who were arrested in the taxi. He refers first of all to the evidence of the members of the group who were attacked. PW1 who was one of the victims put the time of the wounding at about 10.10. PW2 put it at between 10.20 and 10.25; PW3 between 10.30 and 10.35. Before I come to PW4 I should mention that the judge, although she did not place much weight upon the evidence of PW3 said that she did take his evidence into account but that in respect of the matter of timing it was not far out from the evidence of PW2. To turn to PW4, he put the incident at between 9.50 and 9.55. The judge dismissed the discrepancy in relation to PW4 on the ground that he did not have a watch and that she did not place much reliance upon that estimation of time. Clearly, there were fairly substantial discrepancies between the four prosecution witnesses who were members of the group.

6. We then turn to the evidence of the four police officers who were in the car patrolling the street. The first who was a sergeant, PW6, put the time when he saw the seven men running down Hiu Kwong Street at 10.55. He looked at his watch and one of the other policemen, PW8, agreed with him. PW7 did not deal with the matter. There appears to have been no evidence from the 4th police officer.

7. Mr Gerber therefore was rightly able to contend that the incident, or at any rate the seven men running down Hiu Kwong Street, took place at about 10.55. He appears also rightly to submit that the assailants who were escaping would not have taken long to reach the taxi. His submission is therefore that the judge glossed over the discrepancies and underestimated the importance of the discrepancies in timing between the groups of witnesses.

8. It is notorious that witnesses get their time wrong. Whether that is so or not here, one has to look at the consequence of these discrepancies, and to that matter I will return when I have addressed the other two grounds which I now proceed to. Before I leave the matter of discrepancies, I have to say that contrary to Mr Gerber's contentions, it is plain from her reasons that the judge did not overlook the discrepancies in timing.

9. The second perfected ground of appeal of the 1st applicant is that the learned judge in her reasons for verdict failed to make any reference to the evidence of either PW15 or PW18:

"... nor to her ruling that 'he was not able to answer that particular allegation' leading to the cautioned statement of D2 being ruled inadmissible. Given that the credibility of the police team was at issue and that concoction of evidence was alleged, the Learned Judge should have done so."

The burden of this ground as pursued by Mr Gerber was simply this. The cautioned statement of D2, the defendant who is not before us on these applications, was not admitted in evidence because the evidence of the police officer who recorded it and who was one of the four in the car, was not accepted as to the timing of the statements. That Mr Gerber argues was a rejection of his credibility. He argues from that the evidence of the entire team should have been rejected or at any rate fully questioned and referred to. That is a remarkable statement of principle which I do not accept. It is clear from her judgment that the judge did not overlook the point. In fact the alleged concoction of evidence was a separate ground which was carefully addressed by the judge and rejected. The thrust of this point I also leave it to be further addressed in a general consideration of the effect of the three grounds.

10. I turn then to the third ground. This was that:

"The Learned Judge failed to have any or sufficient regard to the failure of any of the police witnesses, PW6, PW7, PW8 or PW9 to note or remember all, or even part, of the registration number of an alleged 'other' taxi at the scene of arrest ."

It is quite true that the four police officers failed to note the number of that taxi. This ground has only to be stated to disclose its lack of regard to reality. Here, there were four police officers with guns drawn, two taxis about to take off, people armed with knives and water pipes escaping in the taxis and they were expected to note the number of the taxi that sped off. We know that they managed to detain one taxi. We find no substance in this ground whatsoever.

11. Proceeding then to the grounds advanced by the 2nd applicant, his second ground also turns upon the discrepancies between the various time estimates of the offences and the time of the arrest of the applicant. Mr J. Matthews who appears for him acknowledges that the submission that he wished to make upon that ground has been covered by Mr Gerber.

12. The other ground upon which the 2nd applicant relies is that:

"The Learned trial Judge, when convicting the applicant inter alia on the basis of evidence that the assailants in the offences were aged in their early 20's, failed to have any, or any sufficient regard to the age of the applicant who was 16 years at the time of the offences."

The ages referred to in that ground are correct in that the prosecution witnesses who were at the site of the attack did refer to the assailants as being persons in their twenties, while the 2nd applicant at the time of the trial was 16 years of age. But at the end of the day the judge explained, rightly in our view, the assessment of ages could only be an estimate of the ages of person and this could vary.

I come now to the general thrust and effect of all these grounds. They really amount to this that because of the 'discrepancies', because one of the police officer's evidence was not accepted on an incidental matter, because specific reference to the age of 16 might not have been made (although the matter of age was not overlooked), because the time estimates ranged so widely, somehow the incontrovertible crucial and most telling facts must be overlooked. What are these? There is no question whatsoever that the woundings did take place and that the assailants took off; that is not disputed. There is no question whatsoever that the two applicants and a third person were seen running down an adjoining street armed with two pieces of water piping, one of which had traces of blood, and a knife which was unusually nearly 2 feet in length, also blood stained, and were arrested in the taxi. The knife was found in it. They had blood-stained clothing, blood-stained gloves. The blood stains were shown to be of the same group as that of one of the victims of the attack. Is this all to be disregarded simply because of the inconsequential and trivial timing discrepancies, omission to refer to the non-admission of a cautioned statement, failure to note the registration number of a taxi, and alleged failure of the judge to take account of the age of the 2nd applicant? They are nothing in the face of that damning evidence. It cannot be a matter of surprise that having addressed all these matters the judge came to the conclusion she did. We feel bound to say that we have rarely come across appeals as patently devoid of merit as these. The applications for leave to appeal against conviction are refused..