HKSAR v. WONG WAI KUEN AND ANOTHER

HCMA 769/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 769 OF 2007

(ON APPEAL FROM ESCC 1645/2007)

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J U D G M E N T

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1.  The three Appellants on 31 July 2007were each convicted after trial in the Magistracy, by Mr W C Leung, of one count of Wounding section 19 and one charge of Common Assault.  On 14 August 2007 they were sentenced to 3 months’ imprisonment on each count and the sentences were ordered to be served concurrently.  The Appellants served part of their sentences and were released on bail pending appeal.  Each appealed against conviction. 

2.  There were two areas of appeal, the first being that the Magistrate erred in dealing with the identification evidence (Grounds 2, 3 and 4 of the Perfected Grounds of Appeal).  The second was that the Magistrate had misdirected himself as to the law relating to joint enterprise (Ground 1 of the Perfected Grounds of Appeal.)  A 5^th ground of appeal was not pursued. 

3.  The essential facts of the incident during which the offences were allegedly committed were not disputed.  All three defendants and the two victims are residents of Peng Chau.  At around 11:15 p.m. on the 4 November 2006 at a skating rink, at the Peng Chau Waterfront Playground, the two victims and a male friend were sitting on one of the benches at the side of the rink.  A youth known to the victims as “Chung Tsai” approached them saying, “No one can leave - sit here”.  Almost immediately a group of persons - the estimate of its number varied according to each witness, but appears to have been 10-30 - came running up.  According to one of the victims, Choy, (PW2), the group arrived in ‘three batches’, surrounded the victims and attacked them - their friend managed to run away before the group reached them. 

4.  The victim Tsang, (PW1), who was aged 17 years, claimed he was hit on the back of his head with a glass bottle and his left arm was cut by fragments of glass.  A medical examination confirmed that he had a 2 cm laceration on the back of his head and a 1 cm laceration on his left forearm. 

5.  The second victim, Choy was aged 12 years and he claimed he was punched in the right eye.  This resulted in swelling, haemorrhage of and blood collection in the eye and a medical report indicated that at the time he was examined, the visual acuity of his right eye was significantly impaired. 

EVIDENCE

6.  The evidence came from the 2 victims, their friend who, because he fled before the attack began, had not seen anything of the attack and a police officer who had been ordered to the scene to deal with a case of “fighting and person injured”.  None of the Appellants chose to give evidence and they called no witnesses. 

7.  D2 was identified by PW2 at an Identity Parade on 28 November 2006 and at trial was identified, by PW2, as the person who had assaulted PW1 with a glass bottle. 

8.  D3 was identified by PW1 and PW2 at another Identity Parade held on 28 November 2006.  He was identified in court by PW1 as the person who kicked him, but did nothing else.  PW1 identified D3 as the man who held two glass bottles with which he had hit him, but wrongly referred to D3 by the name ‘Wong Wai Kuen,’ which was the name of D2; D3’s name was Wong Wai-sum.

9.  PW1 told the police officer, PW4, that he did not know his assailants, but it is not clear from the context whether he meant that he was not acquainted or familiar with them, or whether he could not recognize them. 

10.  D3 was identified by PW2 as the person who had punched PW1; however this was not referred to in his witness statement. 

11.  D4 was identified by PW1 and PW2 at an Identity Parade on 23 January 2007.  PW1 identified him in court as the man “Ma Leng”, who had held him in an arm lock.  He told the court that D4 was known to him before the incident.  Whether he meant that he was acquainted with D4, or whether he knew him by sight because they were both residents of the same small island was not explained. 

12.  In cross-examination PW1 agreed that he had been unable to see D4, because his movement was restricted by the arm lock in which he was held.  PW2, at trial, purported to identify D4 as the person who held PW1 in an arm lock, although he had not mentioned it in his witness statement. 

14.  The length of time during which the attack took place was not definite but appears to have been fairly short - PW2 thought it lasted 1-2 minutes.  The Magistrate decided it was not a ‘fleeting glance’ situation; that assessment, in part, was based on his view, a not unreasonable one, that an element of recognition as to names and faces would exist amongst the island’s inhabitants. 

15.  However, the circumstances described by PW1 and PW2 showed that the identifications they made were hampered in several respects and thus could properly be described as fleeting glance identifications.  It was not clear how reliable PW2’s vision was immediately after he was punched in the eye, when he purported to identify the person who was attacking PW1.  His identifications of D2, D3 and D4 were all made after his eye injury.  The Magistrate, with reference to the medical report, considered that a 50% impairment of PW2’s vision “should not completely prevent Choy from taking a look”. (B32 ).  However, such impairment could make Choy’s subsequent identifications unreliable; particularly as his opportunity to see things was, by his own admission, limited in various ways.

16.  In PW2 said he had been held in an arm lock initially, during which time he kept his eyes closed.  After he had been punched in the eye his attention had been caught by the sound of breaking glass, and he claimed that he had seen what was happening to PW1.  However he said also that during the attack he had been trying to cover his head to protect himself from further injury and his view was obscured because of his arms being held up in front of his face.  He admitted too that he had not mentioned in his witness statement what he claimed he had seen happening to D1.  His evidence of identification, overall, was unlikely to be reliable in such circumstances. 

17.  The Magistrate was aware that identification was the major issue, that there were areas of weakness in the identifications purportedly made by PW1 and PW2 and that a full Turnbull consideration was required of him.  However it appears that the Magistrate misunderstood certain parts of the evidence; incorrectly stated them; or included in support of his findings material which was not part of the evidence.  Various findings were based on his incorrect understanding of the evidence. 

18.  An important element in a Turnbull assessment is the lighting condition.  The Magistrate found (B31) that the area of the skating rink ‘should be’ quiet and that the light, though not bright should be ‘sufficient’ for such a public place.  This appears to have been unsupported by the evidence.  PW2 said the skating rink was dark at the time of the incident.  The police officer, PW4, said that he did not see the faces of the group, because it was night and that he had to turn on his torch.  He said that the skating rink lights, while not switched off, were dim.  PW4 added that the conditions were so chaotic on his arrival that he was unable to see whether anyone except these victims was injured.  PW1 agreed that the area was dimly lit.  There was no evidence about additional light sources. 

19.  Mr Morley, who represented the Appellants on this appeal although not at trial, set out a number of matters where, he submitted, that the Magistrate had fallen into error in resolving various difficulties with the identification evidence. 

20.  The Magistrate found that despite his discovering weaknesses in the identification of D3, he could nonetheless rely on what he referred to as the “matching evidence” of PWs 1 and 2, in that they identified D3 as the person who kicked and punched PW1 and not the person who hit him with a glass bottle.  In fact PW1 had identified D3 both as the person who kicked him and as the person who hit him with a glass bottle.  PW2 identified D3 as the person who had punched PW1.  There was thus no foundation for the Magistrate’s reliance on this matching evidence. 

21.  The Magistrate found (B29) that PW1 had identified D2 at an Identification Parade on 28 November 2006; in fact it was PW2 who had identified him.  He also found that PW2 had not identified D3 at that parade, when in fact D3 had been identified by both PW1 and PW2.  The results of the Identification Parade had been produced as Admitted Facts.  The Respondent suggested that although these were errors, the Magistrate had reconciled the identification evidence.  That was not the case. 

22.  The Magistrate also found that PW2 had seen ‘Fan Shu’ and D4 holding PW1, while D2 hit him with a glass bottle.  Such a statement did not appear in PW2’s evidence and the Respondent conceded that this was an error. 

23.  How the Magistrate could reconcile discrepancies between the accounts of PW1 and PW2, when he was basing his findings on incorrect facts is not clear.  The Respondent called the errors ‘immaterial’ submitting that the Magistrate would have reached the same verdicts in any event.  However there is no certainty that he would have done so. 

24.  The errors cast doubt on the accuracy and reliability of the identifications.  Those identifications had been made in a short time, in chaotic circumstances and in poor light; there was no certainty that all the persons in the group were involved; the Magistrate mistakenly attributed particular actions to particular defendants; the victims did not have a clear view of their alleged assailants for any significant period of time; there were omissions of various events from their witness statements, and, the injury to PW2’s eye which caused significant reduction of vision, must cast further doubt on the accuracy of what he reported about the attack on himself and on what he claimed he saw happening to PW1 thereafter. 

25.  In all the circumstances the identification evidence is weak and unreliable. 

26.  The Appellants were charged jointly and the basis of the prosecution case was that the attack was a joint enterprise.  Ultimately the Magistrate found that there was a joint enterprise and that “anyone who was in the group and present at the scene would be jointly liable for the same legal consequences for the illegal acts done by others” (B29). 

27.  The victims described the group as rushing towards them; according to PW2 the people came in 3 batches and from different directions, although neither PW1 or PW2 was clear about the direction from which the group, or groups, had come.  The victims and the friend with them all said that immediately prior to the assault one person had told the victims not to leave but to stay seated there. 

28.  PW4 said that when he approached the group around 11:26 p.m. to investigate, he saw some of the people ‘pulling and dragging’ something and heard someone saying, “No, no”. 

29.  It was possible that not all persons present at the ice rink were involved in the joint enterprise.  This was not a matter considered by the Magistrate who, in the course of the final submissions made by defence counsel at trial, stated: “ Now, who actually did what is not important I can tell you, because once I am satisfied it is a group of people coming to attack there this is a joint enterprise”.

30.  “Any person who is standing there and watching, they will be found guilty.  There is no need, [to ask] “Who did the punch?  Who hit PW1 with a glass bottle?”  It doesn’t really matter.  If they were part of the group, that is sufficient now.” (B76)

31.  In his Statement of Findings the Magistrate repeated this view (B29) when he found “that there was a joint enterprise in this group of people to attack Tsang and Choy.  Therefore, anyone who was in the group and present at the scene would be jointly liable for the same legal consequences for the illegal acts done by others.’

32.  That is an inaccurate statement of the principles governing a joint enterprise.  Mere presence at the scene of a crime is not sufficient to establish joint enterprise, there must be some encouragement or assistance provided by the bystander to the perpetrator.  There must be an intention to assist the actual perpetrator, or the bystander must be close enough to assist if the need arises and the perpetrator is aware he is there to aid him if needs be. 

33.  His erroneous view gives rise to a real possibility that the Magistrate failed to consider adequately material discrepancies in the evidence as to which person was present and who did what, or had ignored such discrepancies, proceeding on the basis of his misunderstanding, that if a joint enterprise existed, the actions of all those present were subsumed in it and any errors of identification or attribution were cured by it. 

34.  Having considered the matters raised on appeal I am of the view that these convictions are unsafe and unsatisfactory and that this appeal must be allowed. 

35.  Accordingly, I quash the convictions against each of the 3 Appellants and quash too the sentences of imprisonment.  Given the nature of the case I do not consider a retrial is warranted.