CHOI MAN WAI v. HKSAR

FAMC 23/2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 23 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC NO. 126 OF 2000)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1. At the commencement of the hearing the applicant complained that he was served with documents in English which he did not understand and that he was pressed to sign a receipt for them. We understand that these documents were the respondent's skeleton reply and authorities. As indicated to the applicant, we have taken no account of these.

2. The applicant was one of two defendants who were charged with wounding with intent, reckless driving and criminal damage. The other defendant was convicted on all three charges while the applicant was convicted of wounding and reckless driving. They received sentences of 31/2 years for wounding to run concurrently with 3 year sentences imposed for the other offences.

3. The defendants and the victim, Lam Ming-wing, had on previous occasions been involved in queuing for and then trading in tokens needed to purchase flats in new property developments coming onto the market.

4. Her Honour Judge Chua found that the offences all took place on 17 December 1998 in the vicinity of a such a property development in Tai Po where such queuing for flats had taken place. The defendants, in the company of other men, mounted a sustained attack on Lam. This involved physical attacks not only with hand-held weapons, but also by repeatedly ramming a car into the vehicle in which Lam was trying to escape his attackers and subsequently trying to run him down with the car.

5. At the trial, the applicant's case was that there had been an attack on him by Lam and not the other way around. It was in particular alleged that Lam had driven a car at him at high speed, causing him injuries due to contact with the side of the vehicle.

6. The judge made her findings after having noted that Lam and another prosecution witness had criminal records. She rejected the evidence of the defendants, finding them poor witnesses, and accepted the evidence of the prosecution witnesses. She found the latter's evidence corroborated by evidence of Lam's injuries, the damage to his car, fingerprints of the other defendant on exhibits found at the scene as well as independent eye-witness evidence. It was noteworthy that the applicant's first account of the cause of his injuries did not involve any allegation of their having been sustained when he was hit by a car.

7. On the applicant's appeal to the Court of Appeal, he complained that the judge had erred in finding that his injuries were not consistent with being caused by impact with the side of a car driven at him at speed . He also complained that her inference that such injuries might have been caused by his slipping or falling or having been run into by someone was speculative and unsupported by or contrary to the medical evidence. Similar complaints of speculation by the judge were made in respect of her findings on certain questions of detail.

8. The Court of Appeal accepted that these findings were problematical. However, having referred to HKSAR v Choi Gin-ngon [1998] 1 HKLRD 902 regarding the appellate court's proper approach to a District Judge's reasons for verdict, it was held that the questioned findings were not essential to the judge's decision and that they did not render the conviction unsafe or unsatisfactory.

9. The applicant, who now appears in person, seeks leave to appeal on the ground that there has been a substantial and grave injustice. That is a very stringent test for any applicant to satisfy. He alleges principally that the police investigation of his complaints against Lam was one-sided and inadequate, causing the judge to be misled as to the facts. He also renews his criticisms of the findings that had been questioned in the Court of Appeal. At this morning's hearing, he furthermore complained that a potential witness, Li Wan-keung, was not called.

10. This Court is not in a position to re-try the facts. The complaints made do not establish an arguable case of substantial and grave injustice. The Court of Appeal were fully entitled to hold that despite certain deficiencies in the judge's findings, her understanding of the overall situation was not impaired and that ample evidence existed to support the conviction. The application for leave to appeal to the Court of Final Appeal must therefore be refused.