HKSAR v. LAW KWOK FAI

CACC 204/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 204 OF 2003

(On Appeal from DCCC 112/2003)

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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 15 June 2004, we dismissed Law Kwok Fai's (the Applicant) application for leave to appeal against conviction and reserved our decision on his application for leave to appeal against his sentences. We now set out our reasons for our decision in respect of the application for leave to appeal against conviction and give our decision on the application for leave to appeal against sentences

Background

2. On 6 May 2003, the Applicant, was convicted after trial before Judge Day in the District Court of three charges of wounding with intent to cause grievous bodily harm, contrary to s.17(a) of the Offences against the Person Ordinance, Cap. 212. On the same day he was sentenced to 4 years' imprisonment on the 1st charge and 2 years' imprisonment on each of the 2nd & 3rd charges. The Judge ordered that he serve all sentences concurrently, making his total period of imprisonment a term of 4 years.

Prosecution case

3. Lo Wing Man (PW1) is a decorating contractor. In July 2002 he had a contract to fit out a new flat at Galaxia Tower D, Lung Poon Street, Wong Tai Sin. He sub-contracted the carpentry work to the Applicant. Fearing that the Applicant was behind in his work, PW1 terminated his sub-contract some time in September 2002. He arranged to meet the Applicant at the flat on 24 September 2002 in order to discuss how much he should be paid. Also present at this meeting were Chan Ngai Sum (PW2), Kwok Kam Wah PW3 (KWOK) and PW4 Lam Wing Keung. PW2 & PW3 were workmen working for PW1, PW4 was a self-employed plasterer whom PW1 had engaged to carry out plastering work at the flat.

4. The discussion was a failure and ended up with PW1 and the Applicant pushing and shoving each other. PW3 was also drawn into their altercation and he fell to the ground in the course of it. PW4 attempted to mediate in the dispute. PW4 said that he saw that PW1's hand was bleeding as a result of this altercation. The applicant also spoke of this in his evidence. Eventually the Applicant left the flat. The other four men went for lunch.

5. Around 2 p.m. three of them PW1, PW2 & PW3, but not PW4, returned to the building in which the flat was to recommence their work. As they entered the building through a rear gate on the ground floor a man approached PW1 from behind and attacked him. PW1 recalled receiving two blows to the back of his head before he was pushed onto the ground and lapsed into unconsciousness. He did not see who his attacker was.

6. PW2 witnessed the attack on PW1. He saw a man, whom he did not know, approach PW1 from behind and hit him on the back of his head with a torch. He then saw the Applicant run out from a nearby hiding place and join the other man in attacking PW1. He saw the Applicant push PW1 to the ground, sit astride him and hit him about the head while the unknown man continued to hit him with the torch. This gave rise to the 1st charge against the Applicant.

7. PW2 tried to help PW1, but the unknown man chased after him and hit him (PW2) about the head with the torch before returning to continue his attack on PW1. The attack on PW2 gave rise to the 2nd charge against the Applicant.

8. PW3 saw the Applicant rush forward to hit PW1 and push him over. The Applicant then approached him (PW3) and swore at him. They then fought and exchanged blows with their fists. He said that PW2 and he had tried to intervene in the attack on PW1, but the man with the torch drove both of them off by hitting them about their heads with his torch. The attack on PW3 gave rise to the 3rd charge against the Applicant.

9. A CCTV camera at the ground floor recorded images of the two attackers leaving the flat. The timings on the video recording indicate that the attack lasted about one minute. For technical reasons it was not possible to play the tape in court, however, PW5, the arresting officer, produced two still images taken from the video recording. Although the images were too indistinct to afford identification of their faces, one showed a man wearing a cap entering through the gate to the building at a run, the other showed the same man leaving, together with a second man who was carrying a bag on his back. That second man's clothes and bag were similar to the clothes the prosecution witnesses say the Applicant was wearing and the bag he was carrying on 24 September 2002. The Applicant, in his evidence, accepted that both the bag and clothing were similar.

10. A pair of spectacles was found at the flat. PW1, PW2 & PW3 said that these were similar to the spectacles worn by the Applicant. Four splatters of blood were found on these spectacles and sent for analysis. The DNA evidence suggested that it was likely to the very high degree of mathematical probability that such tests reveal, that three of the splatters were of PW1's blood. The testing of the fourth showed that it was an admixture of two persons' blood. The DNA test excluded the possibility of the Applicant, PW2, or PW3 being contributors to the mixture. It could not exclude the possibility that PW1's blood was in the mixture.

11. When he arrested the Applicant on 28 September 2002, PW5 found that his right hand was bandaged and his right eye bruised. The Applicant told him that on Tuesday he had been assaulted and injured by Lo Wing Man (PW1) and his two employees in the flat at Galaxia Tower D.

12. The Applicant was medically examined after arrest and found to have two broken fingers in his right hand.

13. PW2 and PW3 identified the Applicant as one of the two assailants at identification parades held on 23 October 2002.

14. In the attack, PW1 suffered a 4 cm deep laceration on his scalp and a 3 cm long abrasion over his right eye, both of which required suturing. He also had bruises to his face and an abrasion to his back. He had no bone fracture. He was treated and discharged from hospital the same day.

15. PW2 suffered a 3 cm laceration to the right side of his scalp, which required suturing, as well as a 5 cm in diameter haematoma to his scalp and an abrasion to his forearm. He too was treated and discharged from hospital the same day.

16. PW3 suffered two 2 cm long lacerations to the right parietal region of his scalp and a 1 cm long laceration at the occipital region of his scalp, all of which required suturing. He also had swelling over his right forearm. He too was treated and discharged from hospital the same day.

Defence case

17. The Applicant gave evidence, but called no witness. He did not dispute the earlier quarrel in the flat with PW1 over payment for his work. He said that in the course of that quarrel PW1 and he had pushed each other and while they were jostling each other, PW2 had punched him in his right eye. He had then grabbed PW1 and collided with PW2 and PW3 before all of them had fallen to the floor. As a result of this tussle his eyes became swollen and he hurt his wrist. He saw that PW1 was bleeding from the back of his head. He went on to say that both PW1 and he picked up an iron bar each, but did not use them. He then left the flat and went home. Although he did not dispute that some one had attacked PW1, PW2 & PW3 in the flat later on, he knew nothing about it. PW1, PW2 & PW3 had all misidentified him as one of the two assailants. He said he had broken his fingers when he fell to the floor in the course of the earlier altercation.

Appeal against conviction

1st ground

18. 18. In the first ground of appeal Mr. Christopher Grounds, for the Applicant, argued that the Judge erred in law, as well as in his evaluation of the evidence, in relation to the issue of the blood splatters on the spectacles found in the flat after the attack. The argument was that as the DNA tests excluded the possibility of the blood being the Applicant's this raised a doubt as to the correctness of PW2 & PW3's identification of the Applicant as one of the two assailants. It is said that, in saying of the blood and the DNA tests -

"Another patch of blood from the spectacles was tested and was found to have come from at least two persons. Mr. Lo could not be excluded as one source but the defendant, Mr. Chan and Mr. Kwok were excluded as contributors to the patch of blood. There was no suggestion that the stranger wielding the torch was injured. The defence would like me to conclude that the other contributor is the second attacker and therefore not the defendant, but the evidence does not lead to this. I do not know where the other sample came from or when it came to be left on the spectacles. This evidence is ultimately inconclusive".

- the Judge not only ignored evidence which went to support the Applicant's case that he was not one of the attackers, but reversed the onus of proof by placing a burden on the Applicant to show that the splatter of mixed blood must have fallen on the spectacles in the course of the attack.

19. We cannot agree with that contention. There was no evidence identifying the owner of the spectacles. The highest the evidence went on that point was that PW1 and PW2 said that they were similar to the spectacles they had seen the Applicant wearing. As the Judge appreciated that proved nothing. There was no evidence as to how the spectacles came to be in the flat, neither was there any evidence as to how the four blood splatters came to be on them. Save for the fact that the fourth splatter was an admixture of human blood, which could not have come from either the Applicant, PW2, or PW3, there was no evidence of whose blood it was in that mixture. What the defence were inviting the Judge to do was to speculate not only that that the blood had landed on the spectacles in the course of the attack, but that it had come either from the unknown man with the torch, or from another unknown man who was not the Applicant. He, quite rightly, declined to engage in such speculation. He regarded this evidence as inconclusive, which it clearly was. In identifying this part of the evidence as inconclusive he was no way reversing the onus of proof.

20. Mr. Grounds further claimed that the Judge failed to deal adequately with discrepancies between the evidence of PW2 and PW3. The simple fact of the matter is that so far as identification is concerned this was a simple case. PW2 and PW3 both were fellow workmen of the Applicant's. They both knew who he was. They had been working with him as fellow employees or sub-contractors of PW1's in Galaxia Tower for around a week, or four days, before the attack. They were also present at the fruitless and acrimonious discussion in the flat in the late morning.

21. It is true that there were discrepancies in their evidence and the judge dealt with them and with the possibility that they were giving false evidence out of a misguided sense of loyalty towards PW1. The CCTV video recording, although not of a quality to permit identification of the perpetrators of the attack, showed that it lasted for about one minute. It was not a lightning surgical strike on the victims. Although he clearly appreciated that he was dealing with a case of recognition and not identification of a stranger, and certainly not identification of a stranger made after only a fleeting glance, the Judge by reference to his observing"...the principles outlined in Turnbull" (R v Turnbull [1977] QB 224) was aware of the dangers inherent in all identification evidence and was satisfied that in this case the identification evidence was of such a quality that he could accept it.

22. We were satisfied that there was nothing in the first ground of appeal.

2nd ground

23. In arguing the 2nd ground of appeal, Mr. Grounds contended that the Judge's consideration and evaluation of the issue of the Appellant's intent to cause grievous bodily harm to the three victims was unsafe and unsatisfactory. He was said to have dealt with this issue in a cursory manner. He was said to have given no description of the shape and size of the torch and failed to appreciate that, although the Applicant is a carpenter, the second assailant used bare hands in the course of the attack; here it is said to be significant that neither assailant used a carpentry tool to inflict the injuries. He was also said to have failed to appreciate that although there were three victims, there were only two assailants, one of whom was unarmed and that, although it was surprise attack, it was carried out in broad daylight, and that none of the victims were detained in hospital, even for observation.

24. Mr. Grounds said that the Judge was illogical in inferring that the Applicant's intention could only have been to cause really serious harm merely because he found that there was a determined and pronged attack and that the three victims were seriously injured. He failed to consider the possibility that the assailants had no intention of causing really serious bodily harm. Neither did he consider the possibility of convicting the Applicant of the lesser alternative offence of unlawful wounding, contrary to s.19 of the Offences Against the Person Ordinance.

25. Mr. Grounds argued that is 'very doubtful' whether PW2 & PW3's injuries can be termed serious and that PW1's injuries fell well short of the type that is commonly seen and associated with offences of wounding with intent to cause grievous bodily harm, and it is probable that some of them were inflicted in the earlier confrontation

26. It would appear that none of these matters pleaded in the 2nd ground of appeal were issues at trial. There the defence was directed at casting doubt upon the correctness of the witness's identification of the Applicant as one of the two attackers.

27. It is true that the Judge dealt with these matters concisely, saying no more than:

"The evidence is of an attack made in concert by the two men; their three victims were seriously injured; their attack was a determined and prolonged attack involving, inter alia, repeated blows to the head by a torch. The intention of the attackers can only have been to cause really serious harm."

But, concise though that passage is, it follows on from a meticulous summary of the evidence dealing with the background behind the offences and the course the attack took.

28. The fact that the judge did not deal with the size or shape of the torch is neither here nor there; no judge is obliged to recite every minute detail of the evidence. Whatever the torch's shape and size was, from the injuries it inflicted it clearly was an object capable of being used as a weapon to inflict serious injury on others.

29. The claims that the Judge failed to deal with the questions of why the Applicant did not use a carpentry tool in the course of the attack, or mounted the attack in the hours of day light, or why it was that two men chose to take on three, are no more than complaints that he didn't speculate about the state of the evidence - something which he certainly should not have done.

30. The Applicant's intention in relation to the attacks upon all three victims fell to be inferred from the whole of the circumstances and in particular from what the prosecution witnesses saw him do. The Judge - again we stress after a thorough discussion of the evidence - found that it showed that the Appellant and his unknown accomplice carried out a concerted and pre-meditated attack on the three victims. Given that they were lying in wait for their victims, that appears to us to be an inescapable conclusion.

31. Although the Applicant used no weapon, his accomplice carried and used a torch as a weapon. The blows to his head with this torch caused PW1 to lose consciousness, which indicates that they must have been delivered with some considerable and deliberate force. Further, the attack on PW1 by both men - the Applicant and his unknown accomplice - continued even after he had been rendered unconscious. The accomplice deliberately used the torch, not only to fend off, but to deliberately wound PW2 & PW3 when they intervened to assist PW1.

32. Given the planned and directed nature of the attack the Applicant must have been aware that his accomplice was armed and it must have been well within his contemplation that the weapon would be used. In carrying out the attack together in the manner they did, the two assailants must be taken to have shared the same intent towards their victims. We are satisfied that on the whole of the evidence before him; it was open to the judge to find that the Applicant had the necessary intention to cause grievous bodily harm to all three victims.

33. The question of whether or not the three victims suffered grievous bodily harm as a result of the attack was for the Judge to determine. The phrase 'grievous bodily harm' is not defined in the Offences Against the Person Ordinance; neither does the Ordinance contain a definitive list of injuries that are to be regarded as grievous bodily harms. Decided cases have held that the phrase should be given its ordinary and natural meaning of really serious bodily harm, and that it is undesirable to attempt a further definition of the term, see: R v Smith [1961] AC 290 (HL); R v Cunningham [1982] AC 566 (HL); R v Brown (A) [1994] 1AC 212 (HL); R v Brown & Stratton [1998] Crim L R 485 (CA). It is not necessary that the grievous bodily harm should be either permanent or dangerous, see: R v Ashman (1858) 1 F&F 88. The English Court of Appeal in R v Saunders [1985] Crim L R 230 (CA) held there was no misdirection in the judge directing the jury that grievous bodily harm meant 'serious injury' omitting the word 'really', saying that the omission of the adverb was not significant.

34. The nature and extent of the injuries suffered by the three victims, all of whom required their wounds suturing and one of whom was beaten into insensibility, are on any common sense view capable of being serious injuries. The Applicant's counsel at trial it would appear had no doubts about this issue as otherwise he would have argued it at trial. The Judge is an experienced trial judge. He, rightly in our view, found them to be serious injuries amounting to grievous bodily harm. It is immaterial to the resolution of that issue that their injuries did not require the victims to be hospitalized.

35. As the Judge was satisfied that the offences of wounding with intent to cause grievous bodily harm charged against the Applicant were made out in all their elements there was no need for him to consider the possibility of convicting the Applicant for the lesser offences of unlawful wounding.

36. We are satisfied that there is nothing in the second ground of appeal.

Decision on the application for leave to appeal against conviction

37. We refused the Applicant leave to appeal against his convictions.

Appeal against sentence

38. The judge took a starting point of 4 years' imprisonment for the 1st charge and 2 years' for the 2nd & 3rd charges. He found there were no mitigating factors justifying a reduction from that starting point and, after applying the totality principle, ordered that the Applicant serve all three sentences concurrently, making a total sentence of 4 years' imprisonment.

39. The Applicant, who is now 42, had one previous conviction for robbery committed in 1976, when he was a teenager of 14, for which he was given probation. Quite properly, the Judge took no account of this in determining sentence.

40. The argument that the Judge erred in confusing the Applicant's offences with offences of robbery is devoid of merit. There can be no doubt that it was no more than a slip of tongue when he said:

"There are no tariff sentences for robbery as the circumstances of each case vary so widely".

Quite obviously, as there are well-established tariffs for various categories of robbery, the Judge intended to say that there are no tariff sentences for wounding with intent.

41. As there is no sentencing tariff for the offence of wounding with intent to cause grievous bodily harm, each case must be approached on its own facts. A sentence of 4 years' imprisonment for this offence is not unusual. Ms. Mary Sin, for the Respondent, drew our attention to HKSAR v Lau To CACC 209 of 2000 (unreported) where this Court held that a total sentence of 4 year's imprisonment was a light sentence for two offences of wounding with intent to cause grievous bodily harm where the injuries suffered by the victims were not dissimilar to those the victims in this case suffered, the only difference in that case being that the victims were two police officers.

42. Mr. Grounds drew our attention to other cases where for, arguably, more serious injuries lower sentences were imposed. Each case, however, has to be examined on its own facts and the question asked whether the sentence imposed in the case on appeal was manifestly excessive or wrong in principle.

43. In this case the Applicant took part in - and no doubt instigated - a deliberate and planned attack on three men in revenge for a failed business transaction. He recruited another man to assist him in this attack, which means that he drew another into his criminal enterprise. It was an ambush attack, where the attackers had the tactical advantage of surprise. It was an attack in which a weapon - albeit not one designed as such - was used to inflict serious bodily injuries on all three victims. It was an also an attack in which the assault on one of the victims continued even after his assailants had rendered him senseless. The Applicant is lucky that PW1 is apparently a man with a strong constitution and that he did not face a more serious charge than wounding with intent to cause grievous bodily harm.

44. It is immaterial that there were three victims and two attackers and that the victims were manual workers and by reason of that, presumably, physically fit. It is as equally immaterial that all three victims suffered no loss or impairment to their limbs, or their senses and were not disfigured, and that each appears to have recovered from his injuries without suffering any complications.

Decision on the application for leave to appeal against sentence

45. We are satisfied that the Applicant's sentences were neither wrong in principle, nor manifestly excessive and we dismiss his applications for leave to appeal against sentence.