HKSAR v. YING TUNG

CACC 150/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 150 OF 2003

(ON APPEAL FROM HCCC NO. 400 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Introduction

1. The applicant, Ying Tung appeared before Beeson J on a charge of attempted robbery with the alternative count of causing grievous bodily harm with intent contrary to s. 17 of the Offences Against the Person Ordinance, Cap.212, (the Ordinance).

2. The applicant pleaded not guilty to both charges but indicated that he was prepared to plead guilty to the charge of unlawful wounding contrary to s.19 of the Ordinance (the lesser offence).

3. The respondent did not accept the applicant's "offer" and the case proceeded to trial.

4. The applicant was acquitted of attempted robbery but convicted by the jury on the second count of wounding with intent and was sentenced to 8 years' imprisonment. He sought leave to appeal against both conviction and sentence.

Prosecution Case

5. On 2 September 2002, the victim (Mr. Leung) went to the Maxims Restaurant at the Fanling Railway Station and ordered a drink. He then went to the toilet and used one of the cubicles. He did not have any dispute with anyone.

6. The applicant was present when Mr. Leung came out of the cubicle. Mr. Leung was washing his hands when the applicant hit him repeatedly from behind with an object, causing injuries to his head.

7. The applicant then dragged Mr. Leung onto the floor before he fled. Mr. Leung shouted for help. The applicant was subdued and arrested by staffs of the restaurant.

8. The object used to attack Mr. Leung was seized and it was a hollowed iron bar (25 centimetres in length) wrapped up in newspaper.

9. Mr. Leung suffered head, dental and left hand injuries. The scalp wound was three centimetres long; there were fractures to the left hand and there was a post-head injury convulsion. Mr. Leung fell into a deep coma and was hospitalized until the 7 September 2002.

10. Mr. Leung complained of poor memory and further tests confirmed that he had moderate impairment of memory, but severe impairment in repetition and similarities reasoning.

Applicant's Case

11. The applicant admitted to have wounded Mr. Leung (using a metal rod to hit him on his head). He said he did not intend to wound Mr. Leung and that it was an attack in self-defence.

12. In his evidence, the applicant said he arranged to meet a Madam Chung in the restaurant but she did not turn up. He then went to the toilet and Mr. Leung was blocking his way to the urinal. He asked Mr. Leung (in Mandarin) to give way. He gave Mr. Leung a push because Mr. Leung ignored him.

13. Without any warning, Mr. Leung punched the applicant on the chest and there was then a fight. The applicant picked up a metal rod wrapped up in newspaper and hit Mr. Leung twice on the head.

14. The applicant said the rod was hollowed inside and it was light. He also said the rod fell out from a litterbin. He stopped it from rolling and picked it up to hit Mr. Leung.

15. On seeing Mr. Leung's head injured and bleeding, the applicant left.

16. The applicant said he had no intention to rob or to wound Mr. Leung.

17. It was not disputed that Mr. Leung was 65 years old and weighed 130 pounds whereas the applicant was quite solidly built and was about 25 years younger.

Grounds of Appeal

18. Clearly the jury did not accept the suggestion of self-defence. The applicant took no issue with such finding. Instead the suggestion is that the judge had misdirected the jury by using "unlawfully or maliciously" instead of "unlawfully and maliciously" when reminding them of the elements of the alternative charge of wounding with intent (Ground 1).

19. Ground 2 is not pursued.

20. The other complaint is that the judge was wrong in failing to leave to the jury the alternative charge of unlawful wounding under s. 19 of the Ordinance (Ground 3).

"Unlawfully and Maliciously" or "Unlawfully or Maliciously"

21. The transcript of the proceedings indicates that in directing the jury on the elements of the offence, the judge had mentioned "unlawfully or maliciously" instead of "unlawfully and maliciously".

22. Mr. Wong, for the respondent initially disputed the accuracy of the transcript and suggested that the judge had actually said "unlawfully and maliciously."

23. On listening again to the taped record, Mr. Wong conceded that the judge had at least on one occasion mentioned "unlawfully or maliciously" instead of "unlawfully and maliciously" to the jury.

24. For the purpose of the present application, we proceed on the basis that the transcript is correct. There are clearly more than one reference to "unlawfully and/or maliciously". The judge appeared to have used both in the course of the summing up.

25. Whether the reference to the element of "malice" in a charge brought under either section 17 or section 19 of the Ordinance is important depends on the facts of the case.

26. If the prosecution case is that the accused actually committed acts of inflicting injuries on the victim and the likely consequences of such acts are physical harm and the defence is not that the assault is accidental or that the accused did not realize that it might cause some physical harm to the victim, the reference to "malice" may not be necessary at all.

27. Diplock LJ made the following comments in R v Mowatt [1968] 1 QB 421 at page 426:

"In section 18 (the English equivalent to section 17 in Hong Kong) the word "maliciously" adds nothing. The intent expressly required by that section is more specific than such element of foresight of consequences as is implicit in the word 'maliciously' and in directing a jury about an offence under this section the word 'maliciously' is best ignored.

......

There may, of course, be cases where the accused's awareness of the possible consequences of his act is genuinely in issue. Reg v Cunningham [1957] 2 QB 396 is a good example. But where the evidence for the prosecution, if accepted, shows that the physical act of the accused which caused the injury to another person was a direct assault which any ordinary person would be bound to realize was likely to cause some physical harm to the other person (as, for instance, an assault with a weapon or the boot or violence with the hands) and the defence put forward on behalf of the accused is not that the assault was accidental or that he did not realize that it might cause some physical harm to the victim, but is some other defence such as that he did not do the alleged act or that he did it in self-defence, it is unnecessary to deal specifically in the summing-up with what is meant by the word 'maliciously' in the section."

28. Mr. Chan, on behalf of the applicant relied heavily on the decision of this Court in HKSAR v Lee King Lun CACC 437 of 1998 (unreported, 10 February 1999) in which it was held that the reference to "unlawfully or maliciously" instead of "unlawfully and maliciously" constituted an irregularity.

29. In that case, the accused was alleged to have poured thinner onto the body of the victim and then caused an ignition with a lighter resulting in serious injuries to the victim.

30. The accused admitted to have taken out a can of thinner for an innocent purpose and it spilled onto the body of the victim by accident. The ignition was again not a deliberate act but caused accidentally by the dropping of a cigarette.

31. The issues involved in Lee King Lun (supra) included whether the pouring of the thinner was accidental and whether the ignition was accidental. Even if the act of pouring of thinner was intentional, it might not necessarily be malicious (though clearly unlawful). The charge was only proved if the accused deliberately poured thinner and then deliberately caused an ignition.

32. It was in such context that the reference to "unlawfully and maliciously" became important to ensure that the accused would be convicted only if the jury were satisfied that the act of pouring thinner and the act of ignition were both deliberate.

33. The applicant admitted to have used a metal rod (albeit a hollowed one) to hit Mr. Leung on his head twice. Such act, in the absence of any lawful excuse or justification, was unlawful. Such act must be malicious. He was bound to realize that his act was likely to cause physical harm to Mr. Leung.

34. Clearly the jury rejected the suggestion of self-defence. The applicant's suggestion that he did not intend to wound Mr. Leung hardly made any difference on the facts of the case.

35. A charge of wounding with intent requires the proof of an unlawful and malicious act. The jury should be so directed. The use of "unlawful and malicious" and "unlawful or malicious" interchangeably clearly was the result of inadvertence. Judges should be reminded to be vigilant and cautious not to repeat such mistake in order not to encourage what otherwise are clearly unmeritorious appeals.

36. On the facts of the present case, the mistake made by the judge did not make any material difference and certainly led to no injustice.

Alternative Verdict of Unlawful Wounding

37. The applicant indicated that he was prepared to plead guilty to unlawful wounding at the commencement of the trial. This is not a material consideration in deciding if the judge was right in not leaving such lesser charge to the jury.

38. It appears not in dispute that whether to leave a lesser alternative to the jury is a matter of discretion for the trial judge in the interest of justice.

39. Mr. Chan referred to R v Mokarata [2002] 1 NZLR 793. Having reviewed generally the English authorities including R v Maxwell (1989) 88 Cr App R 173 and R v Fairbanks (1986) 83 Cr App R 251, the Court of Appeal in New Zealand came up with the following proposition as set out in holding 1 of the judgment:

"Whether a lesser offence was to be put to the jury was a matter of discretion for the trial Judge and the question did not have to be considered if it did not arise in the way the case was presented to the Court. The threshold requirement was whether there was a live issue as to whether no more than the elements of the lesser charge might be established without the additional elements required for the major charge. The Judge had a duty to ensure that the issues left to the jury fairly reflected the issues which arose on the evidence."

40. In R v Maxwell (supra), the English Court of Appeal made similar observation at page 178:

"... we adhere to the general observations in Fairbanks on the duties of the trial judge...The right course will vary from one case to another, but the judge should always use his powers to ensure, as far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence."

41. Callaway JA succinctly summed up the position in R v Kane (2001) 3 VR 542 at page 588 as follow:

"...I do not consider that every alternative verdict must be left to a jury. The answer to the question whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel."

42. Mr. Chan emphasized that the applicant was prepared to plead guilty to the charge of unlawful wounding. He also pointed out the applicant's evidence to the effect that he did not intend to cause grievous bodily harm to Mr. Leung and he was not fully aware that the instrument he used to attack Mr. Leung was a metal rod.

43. We note, however, that the applicant's assertion contradicted other evidence he gave when he said the rod fell out from a litterbin and he stopped it from rolling. It is hard to see how he could have failed to realize it was a metal rod when he held it in his hand.

44. The applicant's assertion must also be viewed in juxtaposition with the prosecution evidence, particularly the evidence of Mr. Leung.

45. Mr. Leung said it was a completely unprovoked attack when the applicant came up from behind and repeatedly struck him with an iron bar on his head for "so many times that it could not be counted."

46. Mr. Leung's jaw was twisted, and a few of his teeth came loose. He suffered serious head injuries. Not only was there a three centimetres long wound, there was also convulsion resulting in a deep coma and 5 days' hospitalization. The attack resulted in serious and permanent injuries to Mr. Leung as revealed in the medical reports. The applicant had no injuries at all.

47. The "weapon" used by the applicant was a 25 centimetres' long metal rod.

48. It must also be borne in mind that the applicant is a much younger and stronger man than Mr. Leung.

49. Although the suggestion that the applicant had no intention to cause grievous bodily harm to Mr. Leung might be described as lacking an air of reality, this does not mean that it had ceased to be a live issue at the trial. The judge recognised this when summing up on the element of intention in the following terms:

"You also have to be satisfied it was done with intent to do him grievous bodily harm. You must feel sure that the particular defendant intended to cause serious bodily harm to the victim, and you can only decide what that intention was by considering all the relevant circumstances and, in particular, what he said and did at the time of the incident. And for that material, you have to rely on what Mr. Leung has told you about the case and what the defendant himself has said to you about the case.

So, before you can be sure of the guilt of the defendant on the 2nd charge, you would have to be sure that, first of all, there was serious bodily harm caused to Mr. Leung, that there was no lawful justification for the wounding, in other words, that self-defence was not a valid option. You would have to consider that matter. You would have to be sure that when the defendant did the act, he foresaw that physical harm might result to Mr Leung and yet went on to take the risk of causing that harm by what he was doing. And you have to be sure also that the defendant intended to cause serious bodily harm to the victim and, as I said, you can decide that intention by looking at the evidence of the two main witnesses about the incident in the lavatory."

50. The effect of these directions was that if the intent to cause grievous bodily harm had not been proved, the applicant was entitled to be acquitted altogether.

51. There was, however, a further and perhaps more important factor to be considered in the light of Mr. Chan's criticism that the judge had failed to leave the less serious alternative of wounding for the jury's consideration. This was that there had been no such request from defence counsel that she should do so.

52. According to Mr. Chan (who not only appeared in this Court for the applicant but who also appeared for him in the court below), he made a deliberate decision not to invite the judge to deal with this in her summing up. He had every opportunity if had wished to do so because the judge had invited assistance on this very topic before summing up to the jury.

53. No doubt there were good tactical reasons for this decision on Mr. Chan's part, not least of them that such an option lacked reality when the real defence advanced had been self-defence. If self-defence failed, then the only realistic verdict open to the jury was one of guilty of the count as it stood.

54. For these reasons, we are satisfied that the judge was entitled, in the exercise of her discretion, not to have left the section 19 alternative wounding to the jury. In any event, if we were wrong on this issue, we are satisfied that this would have been a proper case to apply the proviso.

55. We are not persuaded that the conviction is unsafe or unsatisfactory. The application for leave to appeal against conviction is refused.

Sentence

56. The judge made the following remark in sentence, which clearly reflected her approach:

"There can be no excuse for the...this attack and the injuries were serious. I find that this case is on par with a head-bashing case, although no items were taken form the (victim), and it is on that basis that I propose to sentence.."

57. The offence is a very serious offence indeed when a perfectly innocent man of relative advanced age was subject to attack with a vicious weapon resulting in serious and permanent injuries.

58. It is said that the analogy with head bashing is an error because the guidelines for head bashing cases assumed an accompanying robbery. That is correct. In setting new sentencing guidelines for "head-bashing" offences, this Court in Secretary For Justice v Ma Ping Wah [2002] 2 HKC 566 emphasized the prevalence of such offences coupled with the potential for serious injuries on the victims of such offences to justify a sentence for attempted robbery or robbery of not less than 8 years.

59. While the element of serious head injuries is clearly a common factor, prevalence was not in this case a relevant consideration where the jury acquitted the applicant of attempted robbery. It is also fair to point out that the original charge of attempted robbery included an additional element which was absent in the charge that the applicant was convicted of.

60. That said, the judge was fully aware that the applicant had been acquitted of the attempted robbery count; and it would be wrong to assume that an attack will necessarily draw a lesser sentence just because robbery is not the motive; and just because the particular crime has not the element of the prevalence. All depends upon the circumstances of the case.

61. The only matter which has exercised our minds in this case in the applicant's favour is the fact, which experience dictates, and as Mr Wong for the respondent accepts, that had there not been an additional allegation of robbery in this particular case, it is likely that the venue would have been the District Court. That being so, and given his acquittal in respect of the robbery allegation, we take the view that the correct sentence to be imposed on this applicant, who is aged in his forties and has no previous convictions, should have been one of seven years imprisonment.

62. We therefore grant the applicant leave to appeal against sentence and treat the application as the appeal proper. The appeal is allowed to the extent indicated, which represents a reduction in his sentence by one year.