R. v. LEE KWOK-KEUNG AND ANOTHER

IN THE COURT OF APPEAL

1996, No.285

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicants in this matter faced one charge of wounding with intent contrary to s.17(a) of the Offences against the Person Ordinance. This charge alleged that they on 19th August 1995, inside Good Taste House Restaurant, Ground Floor No.517 Shanghai Street, unlawfully and maliciously wounded Lam Yiu-kwan with intent to do him grievous bodily harm. They pleaded not guilty and were tried before Judge Chua in the District Court. Each was found guilty and each was sentenced to imprisonment for 18 months. They now seek leave to appeal against those convictions.

2. The principal ground argued by Miss Remedios is that the judge erred in relying upon the evidence of the victim Lam Yiu-kwan, who was held in the course of the trial to be a hostile witness.

3. There was no dispute about much of the evidence. The victim said that he had been contacted by a person called Ah Chung and went with him to the Grand Tower Hotel where the two of them met the 1st and 2nd applicants. They then went to a small restaurant known as the Good Taste Restaurant. The victim said that after arriving at that restaurant and, indeed, on the way to it, there was a quarrel about whether he had informed on the applicants in a drug case. He said that because of this quarrel the 1st applicant told the 2nd applicant "I am not going to anything with the drug case any more" and then "asked him to fix the matter up with me". He said that the 2nd applicant then left the table and that shortly thereafter he was attacked from behind by a person wielding a bottle who he could not see. On the application of the Crown the judge ruled that the victim was a hostile witness. In the statement which he had given to the police he had said:

"When Hak Chai, Fei Keung and I were discussing the matter at 'Wo Mei Koon', Ah Chung just sat there without saying a word. Though we had argued for over 10 minutes, a result was failed to reach. At about 11:30 p.m., Fei Keung said to me, 'You still deny it.' Then he turned to Hak Chai, 'Do whatever you like. Beat him up!'. At this juncture, Hak Chai left the table and walked out leisurely. After a short while, I saw Hak Chai holding a glass bottle in his hand. At the time when I sensed that there was something wrong, Hak Chai had already hit my head with the glass bottle. The glass bottle was broken and my head was bleeding. Hak Chai even attempted to stab in my face with the broken bottle. When I fended off his stab with my right hand, my hand was injured by the broken bottle."

He did not, when the statement was put to him, resile from his evidence generally about the events of the evening. The material variation from his statement was his assertion that he had never said to the police that Hak Chai had been told to beat him up and that he did not see who hit him. He maintained that the 1st applicant had simply asked the 2nd applicant to fix the matter up with him.

4. Neither of the applicants gave evidence. The trial judge, when considering the matter, made reference to and relied upon the statement by Gibbs J.(as he then was) in Driscoll v. R. [1977] 137 CLR at 517, where that learned judge said:

"For these reasons I cannot accept that it is always necessary, or even appropriate, to direct a jury that the evidence of a witness who has made a previous inconsistent statement, should be treated as unreliable."

The degree of weight to be given to the evidence of a hostile witness, of course, depends upon the circumstances of the particular case. Evidence from a hostile witness may, in some circumstances, have to be wholly rejected but can, in others, be accepted and acted upon. What must be asked in the present case is whether the evidence of this hostile witness was of such a nature as to leave it open to the judge to accept it and to act upon it.

5. The judge when dealing with the 1st applicant made the following findings:

"I am satisfied on PW1's testimony, where D1 absolved himself from any blame in his statement, this is not true and I find, in fact, that D1 was the dominant presence, that it was D1 who quarrelled with PW1 and ordered D2 to fix it up, which D2 did.

It is not important that D1 should know beforehand precisely how D2 would deal with him. He certainly said he did not stop him when he saw D2 approach the table with the sauce bottles."

6. The judge seems to have relied upon two matters - one the evidence establishing that the 1st applicant was the dominant presence, and two, the evidence establishing that the 1st applicant had ordered the 2nd applicant "to fix it up". She observed that it was not important that D1 should know beforehand precisely how D2 would deal with the victim. Such knowledge would, however, not be important only if there was acceptable evidence sufficient to establish that the fixing up was to involve violence. There would certainly have been such evidence had the witness adhered to his original statement in which he was alleged to have said that the words used by the 2nd applicant were "beat him up". We can, however, find nothing in the admissible evidence at the trial which would be sufficient to establish that the words which the victim said were used must impliedly have been an instruction to the 2nd applicant to use violence upon the victim. They cannot, we are satisfied, be taken necessarily to involve such a direction. That being so the conviction of the 1st applicant is unsafe and unsatisfactory. The hearing of that application will be treated as the hearing of the appeal and the conviction will be quashed.

7. We now turn to the application of the 2nd applicant.

8. We deal firstly to Ground 3 which suggests that the judge excluded relevant and cogent evidence. It is argued that the judge stopped counsel from developing a line of cross-examination which tended to establish that Ah Chung was involved in a recent drug dealing with the victim which may have given the victim cause to conceal Ah Chung's role in the offence. We do not consider there is any weight in this submission. When the full passage is read it seems to us that the judge did not, in fact, stop the cross-examination. Counsel was warned by the judge of the consequences of pursuing such a line of cross-examination and then elected not to proceed further. Furthermore the question that he really wanted to ask, which was whether or not Ah Chung was the boss of the victim, was in fact asked and a reply in the negative was given.

9. The second matter about which complaint is made is a refusal by the judge to record and, therefore, to take into consideration a question from the Crown in re-examination putting to the victim a suggestion that he had told the police in a previous statement that his assailant was Ah Chung. It is submitted by Miss Remedios that this limited the scope of available information pointing to the victim's unreliability. We are satisfied that there is nothing in this point as we have no doubt that Crown Counsel when asking the question unwittingly misquoted the statement of the victim in a way which wholly misrepresented what he had actually said. So much for Ground 3.

10. We then turn to the major matter argued which was that the judge erred in relying in whole or part upon the evidence of the victim. When dealing with the 2nd applicant, the trial judge said:

"I now focus on the evidence against D2. D1's statement, P8, is of course not evidence against D2. As the issue is one of identification, I have kept in mind the difficulties that the case of Turnbull had in mind, but this is not a fleeting-glance situation. Although the evidence is circumstantial, I think there can be no doubt that when one links PW1's evidence that the quarrel was with D1 and D2, not Ah Chung, and what D1 said at the table, and it was D2 who left the table, and follow that with PW2's evidence that the person who got up from the table returned with the sauce bottles, the attacker had to be D2."

The trial judge had earlier set out the evidence of PW2 and PW4 as follows:

"There was incontrovertible evidence from PW2 and PW4 that a tall person from the table, one of the four who had sat there, got up at some point, walked over to a table near the cashier's counter, where sat PW3, Miss Lei Sok-i, PW2's sister, and taking hold of the fish sauce bottles, returned to the table. PW2 saw this person seize two bottles. PW4 one.

The judge went on:

"PW2 and PW3 saw three persons leave, two men first, then one in short order. According to PW4, the two men from the table who left together, left just before the third man picked up the sauce bottle. This conflicts with the evidence of PW1 and PW2 and I think he is mistaken about this. All three witnesses then saw PW1's head and hand covered in blood."

11. The argument advanced is that the judge should not have been prepared to place reliance on the evidence of the victim, particularly on his evidence that the 2nd applicant had got up and left the table immediately before the attack, and that he should have had doubts as to whether weight could be placed upon the evidence of PW2 and PW4.

12. The evidence of PW2 was, it must immediately be said, not as the judge took it to be. In her Reasons for Verdict the judge says that the evidence of PW2 was that the person who got up from the table returned with the sauce bottles. This was not in fact the evidence of PW2. This mistake occurs twice in the Reasons for Verdict. That evidence was given by PW4. PW2 simply said that she had seen the person pick up the sauce bottles. Her evidence was:

"On the day in question I saw someone pick up a bottle. He was just sitting before he picked it up. He picked it from the table next to the cashier counter. He picked up two bottles."

She then said having seen him pick up the two bottles "I was frightened so I walked up to the doorway". The final question came from the court:

"Court: Are you saying that you saw this man, who was one of the four from the table, pick up two bottles, then you didn't see any more because you left the door?

A. That's right -- that's right. I didn't see them any more."

13. The evidence of PW4, a witness who was quite unconnected with the parties to the incident, was, and I paraphrase what he said:

"I saw the taller guy pick up a bottle of fish sauce at the doorway of the restaurant. He returned into the restaurant with it and then I heard a sound resembling the breaking of glass bottle. I immediately ran away. After the three persons had left, the injured person had bloodstain all over his body -- ....He returned to table 7. I didn't see what action had been taken, because my back was facing the table and it happened very quickly."

There was, undoubtedly, then evidence from PW4 as to the picking up of the bottles by the man who had left the table and there was evidence by the victim that the man who left the table was the 2nd applicant. After careful consideration of the arguments which have been put with the considerable force by Miss Remedios, we are nonetheless satisfied that the trial judge was entitled to accept the evidence that she did of the victim and of PW4 and that she was entitled, having accepted that evidence, to reach the conclusion that the 2nd applicant was the attacker.

14. The application for leave to appeal of the 2nd applicant must, therefore, be refused.