HKSAR v. CHIU CHI TAK, JOHN

CACC 241/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 241 OF 2011

(ON APPEAL FROM DCCC 36 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the Reasons for Judgment of the court):

1.  At the hearing the applicant sought leave to appeal against his conviction after trial on 11 May 2011 by District Court Judge D’Almada Remedios of a single charge of throwing corrosive fluid, namely sulphuric acid, on 28 September 2010 at 39 Tai Wan Village, Tai Mong Tsai Road, Sai Kung with intent to burn Chow Kam Man, contrary to section 29(c) of the Offences against the Person Ordinance, Cap. 212. We allowed the application and, treating the applications as the hearing of the appeal, we dismissed the appeal saying that we would give our reasons in due course. This we do now.

THE TRIAL

2.  There was no dispute at trial that Chow Kam Man had been burnt with sulphuric acid at the time and place alleged in the Particulars of Offence.  At issue was whether Chow Kam Man was truthful in testifying that the applicant had thrown the sulphuric acid over him.

The prosecution case

3.  Chow Kam Man was the primary witness called for the prosecution.  The bulk of the prosecution case was adduced into evidence as admitted facts and statements produced pursuant to section 65 C and B respectively of the Criminal Procedure Ordinance, Cap. 221.

4.  There was no dispute that Chow Kam Man and the applicant were neighbours, occupying the ground floors of adjoining village houses, respectively at number 38 and 39, in Tai Wan Village.  Chow Kam Man said that shortly after midnight on 28 September 2010 he was walking home from a nearby bus stop.  As he opened the gates of his home a dog on the balcony of the floor above his ground floor home began to bark.  He called out to the dog not to bark.  Soon after, he heard a dog barking from the premises at number 39.  Then, he saw the applicant walk out of the front door of his home onto a patio.  An altercation ensued between the two men during which the applicant disappeared for a few seconds.  When he re-appeared he was holding a white bottle.  Then, the applicant climbed onto the concrete base above which was a glass wall.  The two men were about 6 m away at that time.  Chow Kam Man was able to see the applicant clearly in the available light provided by a nearby street light and lighting from his own home.  Anticipating correctly what might happen Chow Kam Man told the applicant, “Don’t splash me, if you do that I will report you to the police station.”  Having seen the applicant raise the hand in which he held the bottle, Chow Kam Man retreated.  However, immediately, the applicant splashed some of the contents of the bottle over Chow Kam Man taunting him, “Go on report it, stupid bastard!”

5.  Some of the liquid had splashed over the left side of the chest and right lower leg of Chow Kam Man causing him a painful burning sensation.  Holes appeared in his T-shirt and shorts where the liquid had splashed.  Then, Chow Kam Man reported the matter to the police in a 999 telephone call.

6.  On the arrival of PC 3655, Chow Kam Man pointed out the applicant, who was standing in his patio, as his assailant. Later that night DPC 3851 took swabs of liquid found from the glass part of the wall in the applicant’s premises, from a similar glass wall in the premises of Chow Kam Man and on his adjoining patio.  Also, he seized Chow Kam Man’s clothing.

7.  Dr Tam Cheok Ning, a chemist in the Forensic Science Division of the Government Laboratory, found traces of sulphuric acid on 3 swabs and in areas of chemical burn holes on the T-shirt and shorts worn by Chow Kam Man.

8.  On examination at Tseung Kwan O Hospital at about 01:00 on 28 September 2010 discoloured areas of skin on the left chest wall and right shin, compatible with second-degree chemical burns, were found on Chow Kam Man.

The defence case

9.  The applicant did not give or call evidence in the defence case.  In cross-examination of Chow Kam Man it was suggested, but denied, that he had fabricated his allegation that the applicant had thrown corrosive fluid over him.  It was suggested to the court that, in light of inconsistencies between out-of-court oral statements and a written statement and his oral testimony, Chow Kam Man was not a credible witness.

REASONS FOR VERDICT

10.  In her reasons for verdict the judge said that she did not find there to be any material inconsistencies in the evidence of Chow Kam Man, such that would lead her to reject his evidence.  Having warned herself in respect of the grievances that Chow Kam Man said that he harboured towards the applicant and that he was “a person prone to aggression” she said that, nevertheless, she found him to be an honest, reliable and credible witness.  She rejected the suggestion that Chow Kam Man had fabricated the allegations.  Adverting to the evidence of the discovery of sulphuric acid in both the applicant’s and Chow Kam Man’s premises and the nature of the damage to his clothing and injuries to his person, the judge determined that the applicant had thrown corrosive acid over Chow Kam Man with the requisite intent.  Accordingly, she found the applicant guilty of the offence charged.

GROUNDS OF APPEAL AGAINST CONVICTION

Incompetence of counsel: a fair trial

11.  It was submitted by Mr Jeremy Cheung that the applicant had been denied a fair trial because of the incompetence of his counsel at trial in failing to cross-examine Chow Kam Man about the differences between his testimony at trial and the oral account he had given on the night of the incident to PC 3655 Charm, which was recorded in a witness statement of PC 3655 adduced into evidence at the trial.  Firstly, that he had told PC 3655 that the incident had begun with the Chow Kam Man directing a jet of water from a hosepipe at the applicant, to which matter he did not testify.  Secondly, that in the account given to PC 3655, Chow Kam Man said that the applicant had suddenly produced a bottle from which fluid was then thrown without adding, as he did in testimony, that he had left the position he occupied on the glass wall, gone to the patio and then returned to resume his position on the glass wall before he threw the fluid.  Mr Cheung contended that counsel at trial had a duty to put the applicant’s case to a witness, to make it plain not only that his evidence was not accepted but also in what respect (Browne v Dunn 1894 6 R 67 at 70).

Out-of-court statements inconsistent with testimony

12.  Next, it was submitted that, in any event, the judge had erred in rejecting the submissions made by counsel at trial that those were matters that were in evidence, from which it could be determined that Chow Kam Man’s testimony was inconsistent with his out-of-court statements.  It was contended that the judge’s error arose from her misunderstanding that the two matters were contained in a written statement of Chow Kam Man, whereas the submission, which accorded with the evidence, was that they were asserted orally to PC 3655 and recorded in the latter’s witness statement.

Identification

13.  Then, Mr Cheung submitted that the judge had erred in accepting the identification of the applicant by Chow Kam Man as his assailant, without indicating that she was alert to the risk of misidentification, notwithstanding that it was identification on the basis of recognition.

14.  Finally, Mr Cheung submitted that the judge had failed to have regard to the fact that the evidence of the chemist did not extend to asserting that the sulphuric acid found at the scene of the incident matched that found on Chow Kam Man’s clothing.

A CONSIDERATION OF THE SUBMISSIONS

15.  The court received an affirmation of the applicant dated 17 October 2011 in support of his allegations of incompetence against his counsel at trial and, on the direction of this court, an affirmation dated 26 October 2011 from that counsel.

16.  Counsel made clear in an interchange between him and the judge in the course of his closing submissions on behalf of the applicant, that he had taken a deliberate decision not to cross-examine Chow Kam Man on the inconsistencies between his oral evidence and the evidence of PC 3655 of the oral account given to him on the night of the incident by Chow Kam Man.  Counsel confirmed as much in his affirmation.

17.  In his submissions to the judge, counsel dealt with two categories of contended inconsistencies between the testimony of Chow Kam Man and his out-of-court statements.  Firstly, those made in his oral account to PC 3655, as described in the latter’s witness statement which was adduced into evidence.  Secondly, those made in a witness statement made by Chow Kam Man which, although reference was made to it in cross-examination of Chow Kam Man, was not adduced into evidence.  PC 3655’s witness statement was made at 2:45 on 28 September 2010.  In it, he referred to Chow Kam Man as “VTM” and the applicant as “AP”.  PC 3655 described having received information from Chow Kam Man to the following effect (Appeal Bundle page 40) :

“ AP… went out from the house and had a quarrel with the VTM. The VTM claimed that AP, during the quarrel held a hose, turned on the tap and hosed towards the VTM. VTM immediately warned that if AP further hosed towards him, he would report to the police. Suddenly, AP held a white bottle, which was suspected of containing corrosive fluid, and poured the fluid onto VTM.”

18.  In respect of the out-of-court oral assertion by Chow Kam Man to PC 3655 that the applicant had directed a flow of water from a hosepipe at him prior to throwing acid over him the judge interjected that the matter had not been raised with Chow Kam Man in cross-examination.  Counsel for the applicant at trial responded:

“ I did make the choice of simply relying on the inconsistent (cy) without actually putting it to Mr Chow.”

The judge noted :

“ Mr Chow’s not been asked to explain this or to be given a chance to say whether that's what, in fact, he actually said.”

19.  In her reasons for verdict the judge addressed the issue, noting that Chow Kam Man’s witness statement was not adduced into evidence, albeit that he had been cross-examined on it.  In particular she noted:

“ PW-2 (Chow Kam Man) was not questioned about any matter relating to a hose. A hose was never mentioned in PW-2’s oral evidence. The reference of a hose in PW-2’s statement only came to light…(in) closing submissions. As PW-2’s witness statement was not adduced into evidence and PW-2 was not cross-examined on those inconsistencies there was no evidence of inconsistency before me. In the circumstances I am unable to accept that there was any inconsistency in PW-2’s account in respect of a hose or if the defendant left the glass barrier and went back to its front patio and return to the glass barrier with a glass bottle.” [Italics added.]

20.  Clearly, the judge fell into error in determining that “...there was no evidence of inconsistency before me” in respect of the out-of-court accounts given by Chow Kam Man.  The witness statement of PC 3655 was in evidence.  In it, he detailed the oral explanation given to him on the night of the incident by the applicant, including the material which counsel said was inconsistent with Chow Kam Man’s oral testimony, namely the applicant’s use of a hosepipe and his movements prior to his throwing the corrosive fluid over Chow Kam Man.  Those oral statements of Chow Kam Man were quite separate and distinct from that which was asserted in his witness statement.

21.  The prosecution having chosen to advance in its case evidence of an oral statement of Chow Kam Man inconsistent with his testimony, the question arises of whether or not counsel for the applicant had a duty to draw those inconsistencies to the attention of Chow Kam Man and invite him to deal with them.  The question has only to be posed for the answer to be obvious.  Counsel for the applicant’s duty is to put his lay client’s case.  No more, no less.  Obviously, this issue did not fall within that requirement.

22.  The issue of the ambit of counsel’s authority to act on behalf of his lay client was addressed in the Court of Final Appeal in the judgment of Sir Thomas Eichelbaum NPJ, with whom the other judges agreed in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 143.  There (page 143 C-F, paragraph 47) he cited with approval the judgment of Gleeson CJ, as he was then, in the Court of Appeal of New South Wales in R v Birks (1990) 48 A Crim R 385

“ As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.”

Of the consequence, Sir Thomas Eichelbaum went on to note (page 144 B-C, paragraph 48) :

“ It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

23.  Counsel for the applicant at trial was entitled to pursue the matter as he had done.  Whilst other counsel might have pursued the matter differently, the decision was a tactical one, which lay well within the discretion of counsel at trial.  It appears from his affirmation that counsel was concerned that cross-examination on this issue would simply give Chow Kam Man an opportunity to “make up or fabricate an explanation” for the inconsistencies.  No doubt, counsel would have been mindful that the judge was entitled to have regard to the fact that Chow Kam Man had not been asked to deal with the contended inconsistency in his evidence when it came to the determination of the weight to be attached to the inconsistency.

Identification

24.  During the evidence of Chow Kam Man, counsel for the applicant made it plain that identification was not in issue.  He said as much when Chow Kam Man pointed at the applicant at an early stage in evidence-in-chief (Appeal Bundle, page 108E).  He repeated that was the position of the applicant in cross-examination of Chow Kam Man (Appeal Bundle, page 155)

“ Mr Chow, I didn’t challenge that you were lying about seeing him, alright?”

Later, counsel puts the nub of the applicant’s case to Chow Kam Man (appeal bundle, page 160 R-S) :

“ The whole thing about Mr Chiu coming out from his house and then subsequently using a bottle to splash liquid towards you was a fabrication. It did not happen.”

25.  Clearly, issue was taken on the basis of a false allegation, not mistaken identification.  In those circumstances, given that there was no dispute that the two men were neighbours who knew each other well and that the undisputed evidence from Chow Kam Man was that the available lighting was (appeal bundle, page 120 L) “very bright”, it beggars belief that it has been suggested in this application that the judge failed to have regard to the dangers of identification by recognition.

The chemist’s report

26.  There is no merit in the submission that the judge failed to take into account the limitations of the chemist report in respect of the substance he identified as sulphuric acid.  In that report, the chemist stated that, “... the amounts found were insufficient for the determination of their concentrations and hence no further quantitative analysis was performed.”  That was nothing to the point.  The significance of the evidence was that the substance was sulphuric acid.  Moreover it had been found on the premises of both the applicant and Chow Kam Man and the latter’s clothing.  Further, the two sides of injuries to Chow Kam Man were found to be “second-degree chemical burns”.

The judge’s error

27.  As noted earlier, the judge’s determination that there was no evidence of inconsistency between the testimony and out-of-court statements of Chow Kam Man in respect of the issue of his use of the hose was in error.  The significance of the error was that the judge wrongly excluded from her consideration evidence relevant to the credibility of Chow Kam Man.  However, as was observed earlier, the weight to be attached to the evidence of the discrepancies between his testimony and the first account given by Chow Kam Man was much reduced by the undisputed fact that counsel chose deliberately not to give Chow Kam Man an opportunity to deal with the discrepancies.  Accordingly, it was not known what he had to say on the issue.  Similarly, no evidence was led from PC 3655 of the circumstances in which he had received Chow Kam Man’s oral complaints, whether or not he had made a contemporaneous record and, if so, its accuracy.  Counsel for the applicant at trial was alive to the issue, acknowledging in his closing speech (Appeal Bundle, 167 D and N-P) that, in the absence of cross-examination of Chow Kam Man on the subject, the court was invited to consider the evidence, “...for what it’s worth”.  Finally, it should be noted that the nature of inconsistency was a failure to mention the matter in his testimony that he had previously related to the officer at the scene.  It was not a direct contradiction between his testimony and what he told the officer.  In the result, in our judgment although the judge’s error was an irregularity it was not a material irregularity.

Proviso

28.  If we are wrong as to the materiality of the irregularity, we are satisfied that this case falls squarely within the proviso, no miscarriage of justice having actually occurred.  The overall effect of the prosecution evidence was compelling.  Only the applicant and Chow Kam Man were involved in this early-morning altercation.  There was no dispute that the presence of sulphuric acid had been found on both premises and on Chow Kam Man’s clothing.  There were two sites of chemical burns, matching holes in his clothing, to Chow Kam Man’s body.  The latter’s response to the suggestion that he had fabricated the allegation that the applicant had thrown acid over him eloquently encapsulates the strength of the prosecution case (Appeal Bundle page 160 R-T) :

“ …if that was true, how was the damage of my clothing cause and how could I got such injury? Are you saying that I splashed it on myself?”

CONCLUSION

29.  In the result, we allowed the application to leave to appeal against conviction and, treating that application as the hearing of the appeal, we dismissed the appeal against conviction.