HKSAR v. TO VIET MIHN

CACC 143/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 143 OF 2001

(ON APPEAL FROM DCCC 1198/2000)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1. On 30th March 2001, after trial before HH Judge Sweeney in the District Court, To Viet Minh, the Applicant was convicted of an offence of wounding with intent, contrary to s.17(a) of the Offences against the Person Ordinance, Cap.212 and sentenced to 7 years' imprisonment. At the start of the trial, he had pleaded guilty to a charge of common assault contrary to Common Law and punishable under s.40 of the Offences against the Person Ordinance. For that offence the judge sentenced him to 2 weeks' imprisonment to be served concurrently with the sentence passed in respect of the wounding charge.

2. The Applicant now seeks leave to appeal against both his conviction and sentence on the wounding charge. Mr Lee Chong Ting of counsel represents him. He was not his counsel at trial.

3. The Applicant and the victim of the wounding charge, Nguyen Quang Huu, PW1, are Vietnamese. They are god-brothers and have known each other since 1985, when they were still in Vietnam. The two of them then had a close relationship.

4. The victim of the common assault charge, Ms Bui Thi Lien, PW2, was PW1's girlfriend. She too is Vietnamese. She came to know the Applicant through PW1's introduction in 1998, when she began to live with PW1 as his de facto wife. She was also a friend of the Applicant's de facto wife. Initially, the 2 couples lived in the same flat, later they lived at separate addresses.

5. On 1 April 2000, by prior arrangement with the Applicant, PW1 and PW2 arrived at the Ngau Wu Restaurant on the gound floor of No. 199 Yee Kuk Street in Sham Shui Po to discuss the repayment of a loan. They arrived there shortly after 10 p.m.

6. The Applicant, who was accompanied by 3 other men, arrived at the restaurant shortly after they did and joined them at their table. After a short conversation with them, the Applicant slapped PW2 on her mouth. PW1 tried to intervene and a confrontation between the two of them ensued. In the course of it the Applicant hit PW1 with an ashtray, which he had picked up from a table.

7. PW1 was then savagely attacked by the other men, who were armed with choppers. This was done in PW2's presence. The attackers fled from the restaurant before the police arrived there.

8. He suffered the following injuries in the course of the attack: a fracture of the ulnar bone in his right hand, a cut to his right ulnar nerve, laceration of the muscle in his right fore arm and 2 scalp wounds. Surgery was required to repair all wounds and he was hospitalized for 2 days. He still suffers from a degree of ulner nerve palsy.

9. All that much was not in dispute. What was in dispute was as follows.

10. The prosecution's case was that there was friction between PW1 and the Applicant over a debt of $1,500 that had been owing to PW2 by the Applicant's girlfriend ever since the birth of the Applicant's child in 1999. PW1 and PW2 had been asking the Applicant for repayment as PW2's mother had been admitted to hospital in Vietnam and she urgently needed the cash.

11. Accordingly PW1, PW2 and the Applicant arranged to meet at the restaurant, which was close to the Applicant's home. When they arrived at the restaurant, the Applicant was not there. They ordered some drinks and PW1 phoned the Applicant asking him to come down. He then went to the toilet. When he returned, the Applicant had arrived with 3 other men, 2 Vietnamese and 1 Chinese. They were sitting at a table next to PW1 and PW2's table.

12. The Applicant was in an aggressive mood and asked PW1 and PW2:'what do you guys want?' before he hit PW2 on her mouth. PW1 stood up to remonstrate with him, saying he should not hit a woman and should sit down to discuss matters. On hearing this, the Applicant grabbled an ashtray from the table and tried to hit PW1 in the face with it. PW1 twisted his head and the ashtray caught him a glancing blow to the side of his head. The Applicant then pushed PW1 back. The 2 Vietnamese men then came from behind the Applicant and began to chop PW1. The first blow landed on the top of his head. As he backed away, he saw the Applicant coming at him with one of the Vietnamese men and both of them chopped him. He was forced into a corner near to the restaurant's entrance, where the Applicant aimed blows to the right side of his body with a large kitchen chopper. Blows were also aimed at PW1's head and he had to hold his right arm up to protect it. He felt his hand being broken by the chopper. He received extensive chop wounds down his right arm and chest, as well as the original chop wounds on his head. The Applicant shouted to him: 'Fuck your mother, put down your head' to which he replied 'Fuck your mother, if you can chop me to death, please do'. The chopping then stopped and the Applicant and his associates fled from the restaurant after threatening PW2 with a folding knife.

13. The Applicant elected to give evidence in his defence, but called no witness. The fact that he arrived at the restaurant with 3 other men was not disputed. Two of them, he said, were his former workmates. However, he denied that he sat with them at the same table. He said he had told them to find an empty table and did not notice where they sat. He admitted that he had slapped PW2 'lightly on her mouth to give her a warning' as she had spoken foul language to him. He said PW1 then grabbed his neck from behind and forced his head onto the table, saying as he did so 'I will strangle you to death'. He struggled, grabbed an ashtray off the table and hit backwards at PW1 with it. He then turned around and pushed him aside. The Applicant said that he then headed straight for the restaurant's exit. As he was leaving, he glanced back and noticed many people in the corner. It was busy and there was shouting. He paid no attention to what was going on and went home. He made no attempt to contact PW1 later, as he wanted matters between them to calm down.

14. The Applicant put forward a different reason for the meeting with PW1 and PW2 that evening. He denied owing them money and said that a former boyfriend of PW2's, a Mr Sung, who was also known to PW1, owed him $2,500. The purpose of the meeting was to meet with Mr Sung and PW1 to discuss repayment of this debt. He said he also wished to discuss Mr Sung's relationship with PW2 as he was under the misapprehension that they wanted to resume their relationship.

15. He denied that he had ever held a chopper while inside the restaurant. He denied chasing PW1 to a corner of the restaurant and chopping him there. He denied threatening PW2 with a folding knife before he left the restaurant.

16. The fact that PW1 suffered really serious bodily harm as result of the attack and that whoever took part in it had the requisite intention to cause him really serious bodily harm, was not in dispute at trial.

17. The prosecution's case against the Applicant was one of joint enterprise, in that he was acting in concert with the other men in attacking PW1.

18. Six grounds of appeal against conviction have been pleaded and argued, we deal with them in order.

19. The 1st ground is that the judge failed to give himself a 'Turnbull' warning in respect of PW1 and PW2's evidence.

20. The principles identified in R v Turnbull [1977] QB 224 are intended primarily to deal with the 'ghastly risk' run in cases of fleeting encounters between persons who are strangers to each other; see the English Court of Appeal's comments in R v Oakwell [1978] 66 Cr. App. R 184. That was not the situation in this case. This was not a case that turned wholly or substantially on the correctness of the prosecution witnesses' identification of the Applicant. The issue in the case was not the correct identification of the Applicant as one of PW1's assailants, but of the veracity of PW1 and PW2, both of who knew the Applicant very well.

21. Rose LJ stated the law concisely in R v Slater [1995] 1 Cr. App. R. 584, at page 589, where he said the following:

"...the need for a Turnbull direction arises where there is the possibility of mistaken identification. Such a possibility will generally arise when the issue is whether the defendant was present and a witness claims to identify him on the basis of a previous sighting or sightings. In such a case, it is essential that the jury examine each of the relevant sightings with care and that they be directed to do so in accordance with Turnbull. Where, however, there is no issue as to the defendant's presence at or near the scene of the offence, but the issue was as to what he was doing, it does not automatically follow, in the judgment of this Court, that a Turnbull direction must be given. Whether such a direction is necessary will depend on the circumstances of the particular case. It will be necessary where, on the evidence, the possibility exists that a witness may have mistaken one person for another, for example, because of similarities in face, build, or clothing between 2 or more people present."

22. And in R v Cape & Others [1996] 1 Cr. App. R. 191, Roch LJ, at page 197, said this

"When is a direction about identification and the dangers of identification evidence required? The answer can be found in the case of Turnbull itself at p.317 and p.228 of the respective reports. There the Lord Chief Justice said:

'First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of identification or identifications'."

Roch LJ continued:

"So the Turnbull direction needs to be given in those cases where the case depended wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken."

23. In this case, as we have said, the Applicant admitted his presence at the scene of the offence. He admitted his assault on PW2 and his initial struggle with PW1. The issue for the judge was what did the Applicant do immediately after that? Did he leave on his own and have nothing to do with a coincidental attack as he alleged, or did he continue to attack PW1 before he left with the other assailants as the prosecution witnesses alleged?

24. The correctness of their identification was not challenged in the cross-examination of PW1 and PW2, which focused on their witness statements and their relationship with Mr Sung. In so far as identification was an issue, it was that it was a fabricated identification, rather than a mistaken one.

25. If the evidence of PW1 and PW2 was true - and the judge as trier of fact was satisfied that it was - there was no room for any mistake. A Turnbull self-direction was not required and if it had been given, it would only have served to confuse the real issues which the judge had to decide.

26. This 1st ground of appeal fails.

27. The 2nd ground of appeal is that the Applicant could not have been one of the persons who attacked PW1.

28. The argument is premised on the proposition that the Applicant is right-handed (PW1 said the Applicant slapped PW2 with his right hand) but, PW1's wounds show that only a left-handed person could have inflicted them. This is highly speculative; there is nothing in the transcript, or in the photographs, that supports this proposition. No one can realistically expect the victim of a violent, frenzied attack to stand motionless, face-to-face with his assailant, so that blows struck by the assailant's right hand land neatly on his left side. Common sense suggests that such a situation will never occur in real life. In the situation as described in this case both assailants and the victim move constantly, turning this way and that.

29. This ground of appeal fails.

30. The 3rd ground of appeal we find difficult to understand. Originally we understood it to be an argument that the judge erred in finding that the Applicant chopped PW1 and PW2 at the same time. In the Applicant's counsel's skeleton argument reliance was placed on the judge's remarks in the passages at page 15, lines H to S, of his Reasons for Verdict. We confess that we found nothing in those passages, or the evidence, that could support such a contention. Neither PW1 nor PW2 said that the Applicant had assaulted or attacked them at the same time. Neither did the judge find that as a fact - as the Applicant appeared to allege. During the course of argument this morning, it transpired to be no more than an allegation that the judge failed to resolve, or resolve adequately, various of the so-called inconsistencies.

31. Needless to say, the 3rd ground of appeal fails.

32. The 4th ground of appeal is that the judge failed to consider 'omitted evidence' and discrepancies in PW1 and PW2's evidence.

33. The substance of this complaint is that PW1 and PW2, when giving evidence, provided more detail than they did to the police officers who took their witness statements. This is not an uncommon situation as any practitioner in the courts of Hong Kong knows.

34. The so-called 'omitted evidence', was brought to the judge's attention in cross-examination. He called for and read a copy of PW1's witness statement, and observed:

"Yes. Well, I've looked through it. The gist of it seems to be similar to what he told us this morning. Do you wish to put it to him something that you say is a discrepancy?"

To which the Applicant's counsel at trial realistically replied:

"Well, Your Honour, it is really a question of matters which he has elaborated upon this morning which are not included in the statement and I will put them to him as quickly as possible and ask him for an explanation."

and he proceeded to do so.

35. PW2 was similarly cross-examined on what she had not said in her witness statement. The judge dealt with the matter in this way at page 18, line I to page 19 D, of his Reasons for Verdict.

"It does not surprise me that Mr Nguyen, the PW1, has told more in court testimony than he told the police on 9 April. He says he was still felling the effects of his injuries at that stage and was being questioned in Cantonese rather than his own language of Vietnamese. Further, he was unable to read the Chinese characters in which the police officer wrote this witness statement.

As for Miss Bui, she made similar accusations against the defendant in her witness statement to those she made in court testimony concerning the attack on her husband. However, her testimony about the relatively minor assault on her by the defendant and his accomplices after the attack on her husband is not to be found in her witness statement. When queried on this in corss-examination she said the interviewing police officer made it clear he was only interested in evidence concerning the serious attack on her husband and not the minor assault on her. She said:

'The police told me that they would write out a summary only and if I wanted to say anything else I should save it for the court.'"

The judge continued:

"Although this may not be a satisfactory state of affairs I have heard similar sentiments so often from other witnesses and other cases over the years to believe it must be true. In any event, any omissions from the witness statements in all of the circumstances do not cause me to question the veracity of the evidence of PW1 and PW2 in court."

36. These matters were before the judge. Both prosecution witnesses gave their explanations to the court and it was for the judge to decide whether or not these so-called items of 'omitted evidence' affected their credibility. It was certainly not incumbent upon him, an experienced professional judge, to deal with and resolve each and every point which counsel chose to characterise as an omission or a discrepancy. In any event, the judge had already dealt with some of them in his Reasons for Verdict under the heading 'Assessment of Prosecution Witnesses.'

37. The 4th ground of appeal fails.

38. The 5th and 6th grounds may be taken together; in them it is alleged that the judge erred in finding that PW1 and PW2 were telling the truth.

39. They are to some extent logically inconsistent, for in ground 5, the Applicant relies on a number of nearly identical discrepancies in PW1 and PW2's evidence as implying that they had put their heads together to tailor their evidence against the Applicant before they testified. Whereas, in ground 6, the Applicant complains that their respective evidence was so dissimilar and contained what in the grounds are termed 'important discrepancies' as to make them unreliable witnesses.

40. All we need to say is that the credibility and reliability of witnesses are matters within the exclusive province of the trial judge who has the advantage, which we do not have, of seeing and hearing the witnesses. We have no mandate to retry the case on the papers and we can only intervene if it is clear that the judge's conclusions on credibility are, on the evidence, insupportable.

41. On this matter, as long ago as 1961, 40 years ago, in R v R E Lowe [1961] HKLR 13, Blair-Kerr J, at page 82 of the report said this:

"An appellate court would not except in the most exceptional circumstances interfere with a finding which depended upon the credibility of a witness."

42. In Turnbull itself - and it should be remembered that Turnbull was decided by a 5-judge bench - Lord Widgery, LCJ, in speaking of the English Court of Appeal's statutory jurisdiction, said, at page 231 of the QB report:

"We can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to retry cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility, this court will only interfere in three circumstances. First, if the jury has been misdirected as to how to assess the evidence; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence, the jury must have taken a perverse view of a witness, but this is rare."

43. Section 82 of the Criminal Procedure Ordinance, under which we derive our appellate powers, likewise, does not authorises us to retry cases.

44. There was ample evidence to support judge's findings on this issue; he certainly did not take a perverse view in accepting PW1's and PW2's evidence as truthful.

45. The 5th and 6th grounds of appeal fail.

46. The Applicant's application for leave to appeal against his conviction is dismissed.

47. We now turn to the appeal against sentence.

48. Wounding with intent carries with it a maximum penalty of life imprisonment. As Mortimer JA at page 3 of the judgment of the Court of Appeal in AG v Low Wing Wah (Application for Review No.8 of 1995) (unreported) observed, little guidance can be obtained from other cases as each one depends upon its specific facts.

49. In his written skeleton argument, which is before us, Mr Simon Tam, counsel for the Respondent, submitted that the top end of the sentencing range for wounding with intent is in the region of 15 years' imprisonment; imposed for example on one who pushes another into the path of an approaching train, or who sets another alight with inflammable liquid.

50. In this case, the judge found as a fact that this was not a '...spur of the moment attack,' and that the Applicant had '...come equipped with weapons and a support team to that restaurant intending to, at the very least, to cause grievous bodily harm to the victim'. On any view of evidence it involved a premeditated gang attack on a defenseless, unarmed victim, who had offered no provocation to his assailants.

51. The gravamen of this offence lies more in the type of harm to the victim that the Applicant intended to cause, rather than in the actual harm the victim suffered - considerable though it was in this case. Any one who intentionally aims heavy blows with a chopper down onto another person's head is risking that person's life. As PW1 described it in his evidence '...if I was chopped by a sharp chopper, I think I could have been dead.'

52. That, coupled with the aggravating factor that the Applicant came to the restaurant with an armed group, clearly intent on attacking PW1, leads us to the conclusion that the sentence of seven years' imprisonment can hardly be described as being outside the accepted sentencing brackets for an offence of wounding with intent. It is certainly not manifestly excessive.

53. The Applicant's application for leave to appeal against his sentence is dismissed.