HKSAR v. LO WAI HON

CACC 54/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 54 OF 2000

(ON APPEAL FROM DCCC 933 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 21 January 2000, the Applicant, who was aged 47, was convicted of two offences (charges 1 and 3 on the Charge Sheet) of wounding with intent, following a trial before Judge Muttrie in the District Court. He now seeks leave to appeal against conviction on both charges, having earlier abandoned his application in relation to the overall sentence of five years' imprisonment he received.

2. The Applicant (D3 at trial) was charged with four others, aged between 14 and 16. Charge 1 related to an offence on 16 July 1999 which was allegedly committed jointly by all the defendants (D1-D5) on the victim (PW1). In the third charge, which was alleged to have been committed by D1-D4 on 27 August 1999, the victim was PW2. The two offences were said to have been closely linked in terms of the motive which lay behind them.

3. As the result of the pleas of guilty tendered by other defendants, only D3 and D4 remained to be tried together. D4 was the son of D3 (this Applicant). D4 was convicted on the first charge but acquitted on the third charge.

4. The prosecution's case against the Applicant was that he had counselled and procured the others charged to commit these two separate and distinct attacks. The Applicant played no physical role in wounding either of the victims. Both attacks were made upon people with whom he worked. PW1 was, as the judge expressed it in his Reasons for Verdict, the Applicant's "direct senior" at work. The attacks were carried out with water pipes and involved blows to the head and body of each victim.

5. The evidence against the Applicant mainly consisted of admissions which he made following his arrest. These revealed what had motivated him and brought about his involvement. He told PW5 on arrest:

"It was only that my son had gone with two of his friends to hit these two colleagues of mine to vent my anger."

6. The Applicant was later interviewed in the video room of a police station and this lengthy interview was fairly summarised by the judge in his Reasons for Verdict in these terms:

"D3's answers to the questions put to him in the interview were to the effect that he had for a long time been complaining to his son, D4, and his son's friends, Ah Chuen and Ka Kit, whom he regarded as his godsons, about the bullying he suffered at work from PW1 and others. Ah Chuen (D1) and Ka Kit (D2) conceived the idea of beating up PW1 while pretending to be a head-hitting gang. D3 agreed that they should beat him up but only on the arms and hands and should not rob him. He asked D4 to follow PW1 to teach him a lesson.

Later, he himself drove D4, Ah Chuen, Ka Kit and another godson called Ah Hung to Western to look at the surroundings of where PW1 lived. He brought water pipes and gave them to the boys. In fact two ambushes were laid for PW1, but he was told that the first one had failed. A few days later he heard that PW1 had been beaten and robbed but, he said, D4 did not go with the others to do this.

As to the incident concerning PW2, D3 told the officer that he had a grudge against PW2 from work. He asked D4 to follow PW2 to his home. He asked D4, Ah Chuen and Ka Kit to teach PW2 a lesson. He told them to beat PW2 on the arms and legs with iron pipes, which he supplied. He drove Ah Chuen and Ka Kit to Telford Gardens the night before the attack to place the iron pipes there. The next day he heard on the radio that Lai Kam Ming had been assaulted and robbed, and he found out that Ah Chuen and Ka Kit had been arrested. He said that as far as he knew, D4 probably did not take part in the attack."

7. The Applicant challenged the admissibility of his alleged statements and he gave evidence on this special issue. The judge ruled that the statements were admissible. Thereafter, the Applicant declined to give evidence on the general issue.

8. In the light of the Applicant's decision not to give evidence on the general issue, we do not need to dwell at any length on his six grounds of appeal in which he complained that he had no motive to launch attacks on his fellow workmates and that there were compelling reasons why he would never have asked his son to take a part in those attacks. What in effect the Applicant, by putting those grounds before us, was trying to do was to give evidence which he might well have given at his trial but which he failed to do. However, as we have already pointed out to the Applicant, we are not here to retry his case.

9. There is a further written ground which requires our consideration. The Applicant has repeated the allegation that he made at trial that his statements to the police were made under threat and inducement. He has additionally complained that the judge did not consider the credibility of some aspects of the record of interview. These contentions are contradicted by the full consideration plainly given by the trial judge when he found the admissions made by the Applicant to have been voluntarily given and when he also found that the answers provided by the Applicant to the police were largely true. Once the voluntariness and the truthfulness of his answers had been accepted by the judge, it follows from the summary which has already been read that the evidence of the Applicant's involvement in both attacks was overwhelming.

10. At court today, the Applicant has advanced a number of further grounds of appeal, all of which complained in a variety of ways about the conduct of the barrister who represented him in the trial.

11. The Applicant made a similar complaint on 13 July 2000 when the case was listed before the Chief Judge for mention. On that occasion, the Applicant was told that if he wished to file any complaint about his counsel he should do so in writing within 28 days. The reason was clearly explained to the Applicant. This was to enable his complaint to be provided to the lawyer in question for his comment. The Applicant failed to abide by this direction. The Applicant stated today that he could not clearly remember what he was told because he was nervous when he was in court on that occasion and failed to make a proper note of what he was told to do.

12. In any event, we have heard a series of complaints and we have invited the Applicant to provide further detail about those complaints to us in court today. None of those complaints amounted to conduct on the part of the barrister which could have adversely affected the outcome of the Applicant's trial. The Applicant made reference, amongst other things, to a failure by his lawyer to raise alibi evidence. However, as he has made plain today, the alibi would have shown that he was working at the time when the wounding offences were carried out, a fact which was really never in dispute. Nobody has ever suggested he was present at the wounding offences. He also suggested that his work-card, to establish this fact, should have been produced with other documentation at the trial.

13. We are satisfied that there is no ground on which we should interfere with the convictions. Accordingly, the application must be dismissed.