HKSAR v. LIU CHUNG YUEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.714
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 14th November 1997, this Applicant was convicted in the District Court, following a trial before Judge Muttrie, of wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212. He was sentenced to three years' imprisonment. He now seeks leave to appeal against his conviction on the ground that, in all the circumstances of the cases, the conviction was unsafe and unsatisfactory.

2. The allegation made by the prosecution was that the victim (PW1) had been drinking until the early hours of the morning at the Village Inn in Fanling with a colleague of his (PW2). Both men were off-duty police officers. At about 3 a.m. on 19th March 1997, PW1 left the premises and was followed out by a number of men from another group who had been drinking in the same establishment. One of the group then struck PW1 in the face with a broken glass following a brief verbal altercation which was witnessed by PW2. Approximately 61/2 weeks later, PWs1 and 2 attended an identification parade where PW1 identified the Applicant as the assailant who had made this vicious attack upon him. PW2 identified the Applicant as one of the men who had run outside the bar when PW1 left and as the man who had shouted at PW1 beforehand.

3. The Applicant surrendered to police in the presence of his lawyer four days before the identification parades took place. He remained silent after caution, and he did not give evidence at the trial.

4. The only real issue for the judge to determine was concerned with the correctness of the identification made by PWs1 and 2. There was no dispute that whoever inflicted the serious facial wounds with a broken glass was plainly guilty of the crime.

5. Mr. Callaghan, on behalf of the Applicant, originally advanced four particulars of the way in which he wished to develop his appeal. In fact he has reduced those today to only two, and these are again concerned in one way or another with the reliability or correctness of the identification of this Applicant as the culprit. Obviously one factor that the judge had to take into account was the extent to which alcohol may have been an influence in the witnesses' ability to identify.

6. Mr. Callaghan submits that the judge's assumption "that it would take a high degree of drunkenness to make a man unable to identify another man" was not supported by evidence. It was the basis upon which the judge concluded that alcohol played no part in PW1's ability to identify. He submits that the judge gave insufficient weight to the possibility that PW1 could have been mistaken in his identification due to the amount of alcohol he must have consumed over a period of about five hours.

7. We have no hesitation in rejecting that argument. The judge went to great lengths to evaluate the evidence in the context of the amount of alcohol which PW1 had taken that night. There were several witnesses who had given evidence about it. He looked with care at what both prosecution and defence witnesses had said, and was fully justified in coming to the conclusion that there was no credible evidence of any "high degree of drunkenness" on the part of PW1. The judge made a balanced assessment and he was fully entitled to use his common sense in coming to the conclusion that PW1 was able to make a reliable identification.

8. As far as PW2 was concerned, there was no suggestion by anyone that he was drunk. PW2, in any event, knew the Applicant by sight and it is not suggested in this appeal that alcohol interfered with his capability to identify with accuracy.

9. Originally, Mr. Callaghan was proposing to submit that the judge had failed to give sufficient reasons for rejecting completely the evidence given by DW4. He had been called by the defence as a witness who was supposedly independent of the victim's group and the Applicant's group. Whilst he has now abandoned this line of argument, that aspect of the case was crucial to the approach made by the judge. DW4 was the manager of a Karaoke lounge in Yuen Long. His evidence was to the effect that a customer, who he knew as Chuen Chai, was drinking with friends at his premises between about 1:35 a.m. and 5 a.m. The importance of this evidence was that PW1 had said that Chuen Chai (DW3), who was known to him, had been in the same bar as himself and that his assailant came from Chuen Chai's group. Clearly DW3 could not have been in two places at the same time, and it was DW3's evidence that his only connection that night with the Village Inn in Fanling had been that, at about 1 a.m., he had gone inside for a few minutes in order to see whether a friend or friends were there, and when he failed to find them he left.

10. The judge did not believe DW3, and no criticism is now made of that assessment. This must have had some bearing upon the judge's assessment of DW4 whose evidence supported DW3 on this aspect of the case. It would be remarkable if it did not. Within this context, the judge was quite entitled to give his reasons, brief though they were, in rejecting DW3 as a witness of truth.

11. With that background, we can go to the final submission which is made on behalf of the Applicant.

12. The trial judge had sensibly drawn an inference in his Reasons for Verdict that if DW3 was absent from the Village Inn this "must mean" that either PW1 was mistaken or that he was lying about the presence of not only of DW3 but that whole party of six or seven people with whom DW3 had been seen to be drinking.

13. Mr. Callaghan submits that the conclusion that the Applicant was in DW3's party was, to some extent, wrongly based on a finding that this had been the evidence of both PW1 and PW2. The transcript to which we have been referred shows that only PW1, who knew DW3 by sight, had said this. PW2 did not name Chuen Chai as being present. He did not know Chuen Chai by name, but it is submitted that when the judge said that both PW1 and PW2 had said that DW3 was present, that error must have influenced the judge in rejecting DW4's evidence. If it was an error, it was a very minor one and it carries no weight in our judgment at all. If we were wrong about that we would have had no hesitation in applying the proviso.

14. Accordingly, having found that there was no substance in any of the points that have been raised on behalf of the Applicant, we must refuse leave to appeal and this application is dismissed.