R. v. CHAN WAN CHEUNG

IN THE COURT OF APPEAL

1995, No.664
(Criminal)

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J U D G M E N T

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

1. The applicant in this matter faced two charges of wounding. In the first it was alleged that he with two others on 25th May 1994 at Wing Sing Lane at the junction of Arthur Street, Yaumatei in Hong Kong, unlawfully and maliciously wounded Lee Che-keung with intent to do him grievous bodily harm. In the second it was alleged that he and the same two persons at Wing Sing Lane, unlawfully and maliciously wounded Lee Mei-keung. He pleaded not guilty to both of those charges and was found guilty after trial before Judge Chua in the District Court and sentenced to 21/2 years on each, the sentences to be concurrent.

2. The facts were that on the evening of 25th May the victim in the first charge was playing chess when he received a message to go to meet his brother. He did so and at the junction of Shanghai Street and Wing Sing Lane two male persons rushed out and attempted to grab him. He ran and they pursued him. When he was near Hei Lung Lane he came upon his brother and two friends. The boot was then upon the other foot and the two pursuing males, being out-numbered, turned and ran in the direction of Wing Sing Lane. The two brothers and their two friends gave chase. When they came near to Tsang Kee Cafe, a group of about ten men armed with beef and vegetable knives, wooden clubs and metal hooks attacked the victims. They fled in the direction of Wing Sing Lane and Arthur Street. Four to five of the group caught the first of the victims and attacked him and he sustained multiple wounds on the back of his right hand and on his right leg. The victim in the second charge was walking home when he observed a group armed with knives. This, it should be made clear, was a second brother and not the one who had teamed up with the victim in the first charge to chase the two men. The armed group have seen him rushed upon him, one of them said "slash him" and he was then attacked and sustained several slash wounds.

3. The applicant, who was the 2nd accused at trial, was seen by PC49132 holding a beef knife and attacking the victim in count 1. Upon seeing the police he threw the beef knife down and fled but he was chased by the P.C., caught and arrested after a struggle.

4. The trial judge said at p.10 of the Reasons for Verdict:

"We take up the story of PW5, PC 49132, who said at the time he pointed his gun and shouted at PW1's (the first victim) assailant. He did not see his face. PW1 was on the ground and this person 'was in the act of chopping downwards."

The P.C. said that the attacker, who he then identified as the 2nd accused, turned round and looked at him. He said the accused looked stunned for a short while, dropped his knife and ran desperately along Wing Sing Lane towards Nathan Road. After vaulting the railing dividing Nathan Road, and without losing sight of him, he followed the 2nd accused all around Cliff Road, finally catching him at the bottom of the steps with the help of another police constable. PC 49132 identified the knife which was found at Arthur Street. Principal reliance was placed by the trial judge upon that evidence when convicting the applicant.

5. The trial judge made it plain that the fact that neither of the victims had identified their attackers did not in any way shake her in her conclusion that the evidence of the police constable was truthful and his identification of the attacker, who never left his sight, was acceptable and conclusive. She said:

"I infer from all the evidence before me, the three defendants were part of the same group with a common intent to attack PW1 and any relative or friend of his."

In fact all three of the accused were found guilty but the 1st accused absconded and the 3rd accused was successful in Appeal No. 664 of 1995. This does not give any comfort to the applicant in this case as the reason for that success was, as is set out below from the judgment of the court deliver by Bokhary J.A.:

"At the trial, the only reliable evidence against the three accused was: the identification by Police Constable 47411 Tse Suk Kau ("Constable Tse") of the 1st and 3rd accused; and the identification by Police Constable 49132 Hau Chi Wai ("Constable Hau") of the 2nd accused.

As far as the identification against the 2nd accused is concerned, Constable Hau had the assailant in his sight from the time he saw him chopping the first victim to the time when he caught him.

The significance of that will have to be considered when the 2nd accused's application comes back on for hearing after the adjournment.

Nothing of the kind, however, was the case when it came to Constable Tse's identification of the 3rd accused. He lost sight of the assailant and later identified the 3rd accused in the custody of other police officers. There is not the slightest doubt that there was plenty of evidence on which the judge could have convicted the 3rd accused. That is not the question before us.

The difficulty is this. Nowhere, either expressly or by necessary implication, did the judge show herself at all aware for the purpose of disposing of this case of the dangers of identification evidence which dangers have always been borne in mind when relying on such evidence."

The judge went on to say that because of the failure by the judge to bear those matters in mind the conviction of the 3rd accused could not be regarded as either safe or satisfactory. As we have indicated the evidence against this accused was of a different kind altogether. There was specific evidence clearly identifying him as one of the attackers coming from the arresting constable.

6. In his original grounds of appeal he said no more than that he did not commit the offence and that there were doubts in the case. Today he has addressed us urging that one of the victims was unreliable because he had made a number of statements. These matters were before the trial judge. They were the subject of cross-examination and the fact of the matter was that the only issue was identification and the trial judge did not rely upon the victim's evidence in any way when reaching her verdict in that regard. She relied, as we have indicated, upon the evidence of the constable.

7. The applicant suggests that the police officer told a transparent lie when saying that there was no traffic in Nathan Road, normally a busy thoroughfare, at the time of the chase. This was, however, a matter for the trial judge to consider when making her determination as to credibility. She was satisfied that the police officer was on all essential matters a truthful witness. Nothing has been raised which in any way indicates to us the conviction was either unsafe or unsatisfactory and the application must, therefore, be refused.