HKSAR v. CHAN MING NGAN AND OTHERS

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No. 664
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. On 14 October 1997 the three applicants with another were convicted after trial by Deputy Judge Wright in the District Court of a joint offence of wounding with intent contrary to s.17 of the Offences Against the Person Ordinance, Cap 212. They were each sentenced to 3 years imprisonment on 4 November 1997.

2. The three applicants, who were D1, D3 and D4 at trial seek leave to appeal against their convictions.

The facts

3. The offence was committed on 11 March 1997 near Shui Fu House in Siu Sai Wan Estate in Chai Wan. Sometime shortly after mid-night, the victim and three friends were chatting in a pavilion. Four young men approached them carrying weapons - a kukri, a machete, a bread knife and an iron bar. Two came from one side and two from another. D2 and one of the others grabbed the victim, who was PW1 at trial, and attacked him, one with a kukri and the other with a machete. The victim's three friends, PW2 to PW4, fled and were chased by two of the attackers. But those two attackers soon returned and joined in the assault on the victim.

4. The victim sustained two deep lacerations - one on the left shoulder and one on the right forearm together with two small superficial cuts on his head and wrist. He spent a day in hospital in consequence.

5. The attack took about five minutes after which the four attackers ran off towards Shui Kung House. One of those attackers - that was D2 - was later identified at an identification parade by the victim and the judge accepted that identification as correct. D2 originally applied for leave to appeal but he later abandoned it.

6. The attack was reported to the police. Four officers attended and searched the area with PW2. The three applicants together with D2 were seen by the police coming from a car park and from the direction in which the attackers had fled. They were arrested and, of course, later charged and convicted.

7. Miss Anita Ma appears for the three applicants on this appeal and she also appeared for them below. She argued one point precisely and clearly. She submits that the evidence against each applicant was not sufficient for the judge to find that this case had been proved to the requisite standard. Put another way, she says that in order to convict it was necessary for the judge to find that the only possible and irresistible inference was that each of the three was one of the men who committed the offence with D2.

8. The evidence left for the judge's consideration at the end of the prosecution case was very different to that at the outset. At the outset of the case, if there is such a thing as an "open and shut" case, possibly this was one. There were confession statements from each of the applicants admitting the offence. One led the police to the place where the weapons had been disposed off. There was also identification evidence as well. All this evidence on the submissions of Miss Ma was ruled out or the judge decided that he could not rely upon it. He was left with the bare bones of the case which he summarised as follows:

"PW1 has a satisfactory opportunity to observe the Second Defendant as one of four persons who attacked him at the pavilion outside Shui Fu House;

when the attack is completed those four assailants flee, on foot, as a group, carrying their weapons;

they head in the direction of Shui Kung House;

a matter of mere minutes later the police are searching for a group of males in the area of Hiu Tsui Court;

they see four males, without weapons, emerging from the car park which lies between Shui Kung House and Hiu Tsui Court;

those four males are coming from the direction in which they were seen, by PW1, to run off;

there are no other persons or groups around at that time;

those four males are intercepted by them;

each is found to be sweating and breathing heavily; and

one of the four males is the Second Defendant."

Miss Ma criticises the judge's characterisation of the lapse of time as "mere minutes" and took us to the evidence which itself was far from precise. The attack was said to have taken place between 15 and 20 minutes past midnight. The police console message to go to the scene was received at 45 minutes past midnight. So in fairness to the accused the lapse of time from the offence to the arrest was of the order of 45 minutes but in fairness to the judge he was well aware of this evidence in spite of his description.

9. The judge expressed cogent reasons for his finding in his reasons for verdict as follows:

"It seems to me that in circumstances where one identifiable person is common both to the group who wounded PW1 and fled and to the group who are intercepted shortly thereafter, having come hurriedly from the direction in which the first group was seen to head, all found to be out of breath and sweating the only inference that may be drawn is that the three men in the company of the Second Defendant at the time of interception by the police were the same three men who were in his company at the time of and who participated in the attack on PW1 even in the absence of specific direct identification of the First, Third and Fourth defendants individually. On the evidence before me all the circumstances - the time, the place, the geography, the composition of the groups, the physical states of the Defendants - are consistent with and point to the two groups of four being comprised of the same four persons."

No one could quarrel with the judge's description as consistent with the two groups of four being comprised of the same four persons. But the judge's description is not the only way of looking at this evidence.

The case of each applicant has to be examined separately, otherwise there is a danger in cases such as this of inferring guilty by association. There was no identification of any applicant as a participant in the offence by either the victim or the victim's three colleagues. From the offence to the time of the arrest was about 45 minutes after which each applicant was found in the company of D2 who was of course himself involved in the assault.

10. Mr Saw SC for the prosecution suggested that the judge's reasoning was so cogent that we would have difficulty in overturning the verdicts. Indeed, this is far from an easy case. The principles are well known. They are conveniently set out in the R v Chong Kin-cheong, Cr App 1995 No. 196, unreported. In that case we referred to and cited R v Kwan Ping-bong & Anor [1979] HKLR 1 at page 5 where Lord Diplock in the Privy Council remarked:

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged - and the proof must be 'beyond all reasonable doubt,' which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

The facts of that case were very different from this case but the principles apply.

11. On the other hand, are the words of Lord Keith, also in the Privy Council, in Tan Siew-gim v R [1995]1 HKCLR 299 at 303:

"It is a significant feature of the case that the appellant did not give evidence in her defence. The matters revealed by the evidence for the prosecution cried out for some explanation on the part of the appellant which might be consistent with her innocence. The nature of these matters was such that the jury would have been well entitled to consider that in the absence of any evidence to the contrary form the appellant she must be taken to have been aware of the true character of ARFL's activities."

Again, a case in which the facts were wholly different from this case but they deal with a circumstance where the prosecution establishes facts which cry out for an explanation and point to the difficulties in which an accused person may find himself who fails to give evidence in such circumstances.

Turning to the present case. None of the applicants gave evidence himself. The evidence which was accepted by the judge undoubtedly demonstrated a high degree of suspicion that each of these applicants was indeed involved in the offence. But we think that the presence of each one in the circumstances in which he was found with D2 was not sufficient to establish guilty beyond reasonable doubt. The judge to this extent fell into error of convicting the applicants as a group due to that group's association with D2 who was shown to be guilty. In the end it was identification by association and it could not be said that the facts here cry out for an explanation. We look at the case afresh unencumbered - as the judge was - by the original case presented.

For these reasons we hold that the verdicts are not safe and satisfactory. In the circumstances we give leave to appeal. We treat the hearing as the hearing of the appeal. We allow the appeal and quash the conviction of each of the applicants.