HKSAR v. LAM HON WING

CACC 253/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 253 OF 2003

(ON APPEAL FROM DCCC 1244/2002)

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J U D G M E N T

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Hon Beeson J (giving the judgment of the Court):

1. The Appellant was convicted after trial before H H Judge Longley in the District Court, of one charge of Wounding with Intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 1) and 2 counts of Assault Occasioning Actual Bodily Harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212 (Charges 2 and 3). He pleaded guilty to a fourth charge of failing to provide a specimen of breath for a screening breath test, contrary to section 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap. 374 (Charge 4).

2. On Charge 1 he was sentenced to 21 months' imprisonment, on each of Charges 2 and 3 to 18 months' imprisonment and on Charge 4 to imprisonment for 1 month. All the sentences were ordered to run concurrently.

3. The Applicant applied on 20 June 2003 for leave to appeal against conviction and sentence out of time. That application was refused on 30 September 2003. The Appellant now renews his application for leave to appeal against conviction and sentence out of time. The Applicant represented himself at the hearing before us.

4. In November 2003, the Applicant wrote to the court advising his reasons for making his application out of time. He attributed the delay to a misunderstanding between his family and a firm of solicitors instructed by his family. Later delay was caused by his being imprisoned, which, he submitted, meant he was unable to lodge the application timeously or prepare for it systematically.

5. On 6 January 2004 we dismissed the application and advised that we would hand down our reasons at a later date. This we now do.

The Facts

6. The charges arose from an incident which occurred about 3 a.m. on 6 September 2002 at a bar in Happy Valley. The Applicant, a customer there, initially had a dispute with the bar tender then left the bar.

7. The Applicant telephoned a co-accused and soon afterwards the co-accused arrived at the bar with six men carrying wooden poles and collapsible stools. It was alleged that the Applicant hit the bar tender (PW1) on the chest and said to the men "it's him". The group used the wooden poles and stools to attack the bar tender and two men who were at the bar as customers. The attack ended shortly afterwards and the assailants left.

8. The Applicant, was stopped later by the police at Wong Nai Chung Road in Happy Valley, driving a car. He appeared to be drunk, swore at the officer and refused to provide a specimen of his breath as required by law.

9. As a result of the attack, PW1 sustained abrasions on his left forearm and the back of his scalp and bruising on his right shoulder. The victim of Charge 3 had bruising on his scalp, the area below his right eye, right shoulder and right elbow. The victim of Charge 2 had more serious injuries; a 4 cm long wound on his scalp needed suturing and a bone in his left hand was fractured in the attack.

10. Chin Shing-yan (PW4) a customer, confirmed that prior to the attack he saw and heard the Applicant calling somebody on his mobile telephone complaining he had been bullied at the bar. Subsequently, telephone records were obtained which confirmed that telephone calls had been made between the Applicant and the co-accused before the attack.

11. At formal Identification Parades, PW1 and the two customers (PW2 and PW3), identified the Applicant as one of the attackers. PW1 and PW3 had seen the Applicant on 2 previous occasions at that bar and could recognize him. All witnesses confirmed that they had sufficient opportunity to see the Applicant's face clearly at a close distance and that the lighting in the bar was sufficient.

12. The judge in his Reasons for Verdict traversed the evidence and found that the Applicant had been identified correctly as one of the attackers. He took particular pains to direct himself according to Turnbull principles. He took into account that the incident happened in a bar and that the three victims admitted consuming alcohol, albeit in limited amounts. The judge did not believe they were intoxicated, but that alcohol was consumed was a factor he bore in mind. He was aware that, according to the evidence of Miss Wu Yu Ling (PW6), a newspaper the next day carried a photograph of a man who had been arrested at, or near, the bar and it was possible that the witnesses had seen the accompanying article, or the photograph.

13. The judge was satisfied however that even if the photograph had been of the Applicant and PW1 and PW3 had seen it, it would not have affected their identifications because they had seen him on two previous occasions. He noted that PW1-PW4 all said the lighting was dimmer in the bar than the lighting in the courtroom, but found all the witnesses had seen the Applicant at close quarters.

14. However, the judge stated he would not have felt able to rely on the identification evidence given by PW2 (Chan Kui) had it stood alone. PW2 had not seen the Applicant on earlier occasions nor had he seen any of the attackers until after he had received a blow to the back of his head. Although at an Identification Parade and in court he identified the Applicant as one of the attackers, he said in court that he believed the Applicant was the person who had attacked him with a wooden pole. In a statement made following an Identification Parade on 30 September 2002, he had identified the Applicant's co-accused as the person who had struck him on the head. In cross-examination he admitted he was "a little bit" confused as to who did what.

15. The judge accepted that PW2 would have had a very limited opportunity to see the face of his attacker before he ran off. He did not believe PW2 was mistaken, bearing in mind that the other witnesses had identified the Applicant as one of the attackers, but considered the circumstances in which PW2 saw the person he believed to be the Applicant, and his resulting confusion, did not allow him to find that evidence sufficiently reliable. He discounted PW2's evidence about the identification.

16. The judge found that PW1 and PW3 were in a position to see the Applicant among the attackers when the group entered and he was satisfied beyond reasonable doubt that the Applicant was one of the group.

Grounds of Appeal

17. In lengthy, and detailed grounds of appeal, the Applicant examined the evidence of the first four witnesses and commented on it, pointing out errors that, allegedly, the judge ignored in the evidence. The grounds revisit matters raised at trial and considered by the trial judge.

18. The Applicant pointed out alleged discrepancies and inconsistencies in the evidence, but having considered the matters raised, none is sufficient to cause us any doubts about the judge's assessment of the evidence.

19. The Applicant's complaints chiefly related to identification. He suggested that the witnesses had conspired with one another to give false evidence, which adversely affected his chance of a fair trial.

20. The Applicant believed that because he had not given evidence he had been treated unfairly by the judge. He blamed his counsel who had advised him against giving evidence. He claimed counsel misled him and, as a result, he elected not to give evidence. He believed this had prejudiced the judge against him and was the reason he had been found guilty, despite evidential discrepancies.

21. Although the Applicant had pleaded guilty, unequivocally, to Charge 4, in his grounds of appeal he complained that he had not been asked to provide a breath specimen, thus appearing to negate his plea. He applied for leave to have his sentence on Charge 4 reviewed on the ground that the police "had made mistakes in their procedures". The mistake, presumably, was the failure to request a breath specimen, although that was not entirely clear.

22. Because of the allegations against him, trial counsel was asked to provide an affidavit to the court before this hearing and was invited to attend the hearing, if possible.

23. Mr Mitchell-Heggs, who was trial counsel, complied with this direction at short notice and filed an affirmation setting out the reasons supporting his advice to the Applicant as to whether or not he should give evidence. He advised the Applicant that there were substantial reasons for relying solely on submissions and that the Applicant would be unlikely to improve his position by giving evidence. He confirmed the Applicant had been advised clearly of his rights and that the decision not to give evidence was the Applicant's. The Applicant, after explanation, had made and signed the usual declaration to that effect.

24. At this hearing, the Applicant was offered an opportunity to cross-examine counsel about matters arising from his affirmation, but declined to do so. We are grateful to Mr Mitchell Heggs for his affirmation and his attendance. We wish to make it clear that we find no substance at all in the Applicant's claim that he was wrongly advised. Proper advice was given and the election was the Applicant's.

25. The Applicant made further submissions before us about the telephone records, complaining that the judge had been very subjective, analysed the evidence wrongly and had found, mistakenly, that the Applicant had called for assistance from others.

26. On identification, he referred to the photographs published in the paper the day after the arrest and submitted the judge failed to take them into account. That was incorrect; the judge was well aware of the newspaper report about the incident and dealt with that matter in his Reasons for Verdict (B22 I-Q).

27. A third submission was that the judge was biased against him, such bias apparently arising because the judge noted discrepancies between PW1's and PW2's accounts but rejected the obvious conclusion (according to the Applicant) that he should be found not guilty. The Applicant relied on the absence of his finger-prints on the wooden poles as proving his lack of involvement.

28. On his application for leave to appeal against sentence, the Applicant reiterated that the police did not follow their own procedures correctly and said he had not refused a breath test deliberately. This is a direct contradiction of the Admitted Facts relating to Charge 4. (B 12)

29. The judge was satisfied the Applicant was identified correctly and had been capable of making at least one telephone call. He had no doubt that the Applicant orchestrated the attack and foresaw physical harm to the victims. His self-induced intoxication was not a defence to a charge of Assault Occasioning Actual Bodily Harm, nor to a charge of Wounding under section 19 of the Offences against the Person Ordinance, had such been charged.

30. Charge 1, founded on section 17 of the Offences against the Person Ordinance, did require a specific intent to do grievous bodily harm. The judge found the harm actually caused to the victims fell on the borderline of grievous bodily harm. On balance he considered it possible that the Applicant, in his intoxicated state, might have summoned assistance to cause bodily harm to his victims, without intending to cause grievous bodily harm and he was satisfied that the Applicant himself was unlikely to have had a weapon.

31. Accordingly, the judge gave the Applicant the benefit of the doubt on count 1 and entered a conviction on section 19, Wounding. He convicted the Applicant on Charges 2 and 3.

32. We found no error in the judge's approach, nor substance in the Applicant's complaints.

Appeal against sentence

33. The judge noted the Applicant's unequivocal plea to Charge 4. He found the circumstances of the offence were particularly serious. The Applicant was aggressively drunk, and despite being escorted out, returned to the bar, having summoned assistance from others to attack the barman; 3 people were injured as a result. When stopped by the police he became agitated, swore at the officer, and refused to provide a specimen of breath. As a result, there was no means of knowing how much over the permissible blood/alcohol limit the Applicant was at the time.

34. For counts 1, 2 and 3, the judge took an overall starting point of 2 years' imprisonment. He treated the Applicant as a person of previous good character and reduced the starting point to 1 year 9 months' imprisonment.

35. On count 1, the Applicant was sentenced to 21 months' imprisonment and on counts 2 and 3, to 18 months' imprisonment, all sentences to run concurrently. Having considered the facts of the case and heard the Applicant's submissions, we refuse these applications for leave to appeal against conviction and sentence, which are dismissed.

36. On count 4, the judge sentenced the Applicant to 1 month's imprisonment, to run concurrently with the sentences on counts 1, 2 and 3. The Applicant was disqualified from holding or obtaining a driving licence for a period of 2 years. We are of the view that, properly, this should have been a consecutive sentence. Pursuant to section 83I (3) of the Criminal Procedure Ordinance, Cap. 221 we quash that part of the order that the sentence on Charge 4 should run concurrently with the other sentences and we order instead that the one month sentence shall run consecutively to the sentences imposed for Charges 1, 2 and 3.