HKSAR v. CHAN YICK FAI AND OTHERS

CACC 385/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 385 OF 2000

(ON APPEAL FROM DCCC NO. 642 OF 2000)

_____________________

J U D G M E N T

_____________________

Wong JA: (giving the judgment of the court)

1. The charge sheet contained three charges. Charges 1 and 2 were against all three applicants alleging wounding with intent contrary to s. 17 of the Offences Against the Person Ordinance, Cap. 212. Charge 3 was against the 3rd applicant alone for reckless driving contrary to s. 37 of Road Traffic Ordinance, Cap. 374.

2. After a trial before Judge Yuen in the District Court, all 3 applicants were acquitted of Charge 2. In relation to Charge 1, the judge found the 1st applicant guilty of the lesser offence of assault occasioning actual bodily harm whereas both the 2nd applicant and the 3rd applicant were convicted as charged. In the result, the judge sentenced the 1st applicant to imprisonment for 12 months; the 2nd applicant to 3 years and the 3rd applicant also to 3 years on Charge 1. The 3rd applicant was also found guilty of Charge 3 and he received an additional 3 months to be served consecutively. Against these convictions and sentences, the applicants now apply for leave to appeal.

3. The prosecution case was this. In the early hours of 24 September 1999, a domestic dispute arose between the 3rd applicant and his brother at their family home. The police as well as friends of the family, including PW1 and his father, were summoned with a view to help settling the dispute. Later, PW1 and his father took the 3rd applicant's brother to a nearby tea-house for breakfast and were joined by the mother of the 3rd applicant.

4. When PW1, Chu Kim-chung, who was the victim of Charge 2, was driving a private car JD 4095 along a lane in the rear of Tung Chung Police Station later that morning, he saw a private car GK 1562 driven by the 3rd applicant in the opposite lane coming towards him at excessive speed. On board JD 4095 with PW1 was PW2, Li Chi-fung, the victim in Charge 1. The 1st applicant and the 2nd applicant were passengers in GK 1562. GK 1562 then swerved onto PW1's side of the road when it was about five cars spaces away from JD 4095, and approached JD 4095 head on. PW1 was forced to brake abruptly and GK 1562 stopped about two car lengths away from JD 4095.

5. The 1st applicant and the 2nd applicant alighted from GK 1562 and proceeded to assault PW2 who had alighted from JD 4095. Whilst the 1st applicant and the 2nd applicant were assaulting PW2, the 3rd applicant said 'bash him' and threw a wooden pole to the 2nd applicant who picked it up and hit the PW2' head twice. PW2 fell onto the ground and crawled away. PW1 alleged that the 3rd applicant used a metal torch to hit him, and he then lost consciousness. When he regained consciousness, he found the 1st applicant straddling him and punching his chest.

6. None of the applicants elected to give evidence or call witness. Medical reports as regards the applicants' injuries were admitted by consent. It was not in dispute that PW2 sustained substantial injuries in the course of the attack.

7. There were a total of four grounds in the Perfected Grounds of Appeal. The fourth and last ground was a general ground that having regard to the circumstances of the case, the convictions were unsafe and unsatisfactory. Ground 1 made the complaint that the judge failed to consider the defence case properly or at all. It was submitted that the judge appeared to have relied solely on the evidence of PW1 and PW2 to convict all three applicants on the 1st Charge. She failed to consider the record of the interview of the 3rd applicant and his subsequent reactions immediately upon his arrest and caution. It was submitted that the record of interview together with the replies of the 1st and the 3rd applicants were consistent with a case of self-defence. At the time of arrest, the applicants were co-operative with the police; they did not try to run away and each gave an explanation when questioned. It was submitted that the judge failed to consider these explanations and failed also to evaluate the medical reports of the applicants, and in particular, the medical report of Dr. Chiu which seemed to support that the injuries suffered by the 3rd applicant were consistent with allegations that he was attacked. The judge, therefore, misdirected herself in saying that there was no evidence before her that the applicants were acting in self-defence.

8. We have not the slightest hesitation to reject these submissions. A careful and full consideration of the reasons for verdict clearly demonstrated that the judge evaluated the evidence with great care and took everything into account that was favourable to the applicants. She had regard to the record of interview of the 3rd applicant and the medical report concerning the injuries of the applicants and also the evidence of Dr. Chiu in relation to the injuries sustained by the 3rd applicant. This was made abundantly clear by the judge at p.16 S - p.17 B in her reasons for verdict when she said :

"Firstly medical evidence points to the fact that the 3rd accused did receive injuries as a result of this event. If the 1st prosecution witness had no chance to respond nor to fight back, nor had the 2nd prosecution witness any chance to lay hands on the 3rd accused, I do not see how the 3rd accused can sustain the injuries as so recorded in the medical findings."

From this passage, it is clear that the injuries suffered by the 3rd applicant was always a live issue before the judge.

9. On the question of self-defence, the judge said at p.16 A-B as follows :

"There was no evidence before me to suggest it can be a case for me to consider self-defence on the part of the accused, for the injuries were totally disproportionate."

This also indicates that self-defence had always been in the forefront of the mind of the judge. Having accepted the evidence of PW1 and PW2, she had plainly, as she was, entitled to reject self-defence. It must be borne in mind that it was the applicants who stopped the car of the two victims on the road and started the attack. We are satisfied that there is no substance in this ground and it fails.

10. Ground 2 was that the judge erred in accepting PW1 and PW2 as truthful and honest witnesses. Although PW1 and PW2 said that they did not fight back, the judge was seriously concerned how and under what circumstances the three applicants had sustained their injuries. Furthermore, the failure on the part of PW1 and PW2 to report to the police at the scene about the manner of driving of the 3rd applicant must cast doubt on the reliability of their evidence.

11. Obviously, the judge was concerned about the injuries of the applicants, but the issue was resolved after she had carefully examined and evaluated the evidence of PW1 and PW2, the forensic evidence including DNA tests and the disproportionate injuries sustained by the victims and the applicants.

12. As regards the complaints that PW1 and PW2 did not tell the police at the scene the manner of driving of the 3rd applicant, the judge made these findings at p.15 A-E :

"Complaints were made about the fact the 1st and 2nd prosecution witnesses had never reported to the police at the scene about the manner of driving of the 3rd defendant.

Bearing in mind the extensive injuries suffered by both prosecution witnesses, PW1 and PW2, I find nothing sinister from them not to have mentioned the manner of driving of the 3rd defendant when they were first being found and attended to in the hospital."

This, in our view, was a perfectly sound and logical reasoning. There is no substance in this ground and it also fails.

13. The third ground was that the verdict is inconsistent because the two victims, PW1 and PW2, as alleged, were attacked by the three appellants at the same time. While on the one hand, the judge acquitted the appellants on the 2nd charge of wounding with intent, saying that she could not say for sure whether the 3rd defendant had been acting in self-defence, on the other hand, she convicted each of the appellants of the 1st charge with intent.

14. It has to be appreciated that the only evidence supporting the 2nd Charge came from PW1 whereas in the 2nd Charge there was also the evidence of PW2 which the judge accepted in its entirety and found to be safe to rely on. The judge set out her reasons as to why she acquitted on the 2nd Charge which is to be found from p.16 O- p.17S. There is no need to recite this passage. It is clear that the basis why the judge acquitted on this charge was because she had some doubt where the wooden pole had come from. PW1 could have taken it out from his car to defend his friend, PW2 on seeing PW2 was assaulted by the applicants. At the end of her deliberation, she concluded that the applicant on this charge should be given the benefit of the doubt on the 2nd Charge.

15. We see nothing wrong for the judge to have arrived at different conclusions in respect of the two charges based on the evidence before her. PW2 said in his evidence that he did not know what had happened to PW1 after he had alighted from JD 4095. The judge also found that she could only rely on PW1's evidence up to the point in time when he became engaged in the assault.

16. We are satisfied that the verdicts in Charges 1 and 2 are not inconsistent. The evidence was different and the judge was perfectly entitled to conclude in the way that she did after a careful evaluation and assessment of the evidence. This ground also fails.

17. There is nothing in the convictions to cause us anxiety. We are satisfied that the convictions are neither unsafe nor unsatisfactory. Accordingly, the applications for leave to appeal against conviction must be dismissed.

Sentence

18. The applicants also apply for leave to appeal against their sentences. In passing sentence, the judge had this to say at p.19 H-R of the appeal bundle :

"The three defendants were engaged in the pre-meditated assault on the second prosecution witness, although there was no evidence to show any consensus of mind on the use of the wooden pole by the 1st accused, which resulted in his conviction of the lesser offence of assault occasioning actual bodily harm.

The bashing of the head with the use of a three feet heavy wooden pole is liable to cause extensive injury to the head. PW2 received ten stitches as a result of the assault and was hospitalised for a week.

The appropriate term in the circumstances should be a term of three years' imprisonment.

There was no evidence to show the 1st accused to be a party to the agreement to use the wooden pole, yet the attack of an unarmed person by two adult males, receiving kicks for some two to three minutes, resulting in bruises, the assault was not done in the spur of the moment, but rather was done as a result of a pre-planned and pre-arranged plot."

19. All in all, we are satisfied that the facts in this case and the injuries suffered by the victim in Charge 1 fully merited the terms of imprisonment which were imposed by the judge. The sentences are neither manifestly excessive nor wrong in principle. The application for leave to appeal against sentence is also dismissed.