HKSAR v. WONG TSZ KIN

CACC 543/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 543 OF 2004

(ON APPEAL FROM DCCC No. 759 of 2004)

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J U D G M E N T

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Lugar-Mawson J. (giving the judgment of the Court):

Introduction

1.  On 15 December, after trial before Her Honour Judge Yuen in the District Court, the Applicant, Wong Tsz Kin, was convicted of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212.  On 29 December 2004, the Judge sentenced him to 2 years’ imprisonment for this offence.

2.  The Applicant now seeks leave to appeal against conviction only.  Mr. Ching Y Wong SC (Mr. Derek Chan with him) represents him.

Prosecution Case

3.  The prosecution alleged that just before 7 p.m. on 19 May 2004, the Applicant and another man, variously described by the witnesses at trial as “the black top male”, “the 6 feet male” or “the male with tinted hair”, went to the ‘Place of Honor Restaurant’ in Fuk Lo Tsun Road, Kowloon City each armed with a glass bottle.  Both of them struck the proprietor of the restaurant, Wu Siu Sang (the victim) with the bottles and ran out of the restaurant.  The victim gave chase, as did his wife and his younger sister, both of whom had been in the restaurant.  The other man boarded a taxi, which drove away.  The victim’s wife, however, managed to stop the Applicant from boarding the same taxi.  He broke free and, after a chase, the victim and his sister caught hold of him in Lion Rock Road.  A passer-by made a report to the police.

4.  Upon arrest the Applicant said after caution:   “I did not hit that man. It was Ah Sing who hit him with a bottle.”  The admissibility of this admission was not challenged, neither was the fact that it was made.  It was an agreed fact at trial that it had been said.

5.  At trial it was not disputed that two men entered the restaurant at about 6:55 p.m. and that the victim was attacked.  Neither was it disputed that the Applicant was present in the restaurant during the attack and that he and the other man ran away from the restaurant immediately after the attack, and was chased after and caught by the victim and his sister.

6.  There was evidence from two sets of witnesses.  The first comprised of the victim, his wife and his sister.  The second comprised of other people who were present in the restaurant. There was also medical evidence admitted.  The first group of witnesses described an attack by both men, each holding a bottle, upon the victim.  As for the other witnesses, one had her back towards the door of the restaurant and was unable to see what happened; another saw only one person, not the Applicant, attack the victim; and the third, a waitress, saw both men walk to the table where the victim was sitting, she then heard the sound of breaking glass and saw one man striking the victim with a broken glass bottle, whereupon she ran out of the restaurant.  She then saw two men running from the restaurant.  There was then the pursuit and the Applicant apprehended, and when arrested by the police, he said that it was the other man who had effected the attack.

7.  The victim’s injuries were noted by a doctor at Queen Elizabeth Hospital, where the victim was later examined.  There is a difference between the report produced by that doctor and the evidence of the victim, in that one of the injuries spoken to by the victim, a cut to the left of his forehead, is not recorded in the medical report.   Much has been made of this at trial and in the course of this appeal.

Defence Case

8.  The Applicant did not give evidence or call any witnesses in his defence.  It was put in cross-examination of the first group of witnesses that the Applicant was not one of the men who had attacked the victim, and that they had made up their evidence that he was in order to excuse their attacking him in the course of the chase.

9.  It was suggested, in the light of the contents of the medical report, that the victim could not have sustained the injury to his forehead he claimed to have received in the course of the attack.  The Judge was asked to reject his evidence identifying the Applicant as one of his attackers as unbelievable because of this.

10.  It was also argued that the fact that the neck of only one broken bottle is shown in the photographs of the restaurant casts doubt upon the victim, his wife and his sister’s claims that two men, each armed with a bottle, had attacked the victim.

11.  Defence counsel also argued that as the victim’s wife in answer to one question in cross-examination spoke of “a” man and not two men, indicated that she had deviated from a prepared story that two men, and not one, had attacked her husband.

12.  We do not propose to deal in any depth with the judge’s findings or the matters canvassed in this appeal.  The long and short of the matter is that the Judge accepted the evidence of the victim as to his injuries, and in particular accepted the testimony of his wife that the Applicant himself took part in the physical attack.  Those findings are criticised in this application, but we do not find anything of substance in that criticism.  We do not need to go into that matter, for it seems to us irrelevant whether or not the Applicant himself also physically attacked the victim.  In this regard the Judge said, in an addendum to her reasons, that:

“Assuming for a moment that I have been wrong about my fact finding and that the defendant had gone unarmed into the restaurant with the 6 feet black top male.

The assault took place in the absence of any verbal exchange between the attacker and PW 1.  This confirmed the fact that there must have been prior discussion and agreement between the 6 feet male and the defendant as to what they were going to do inside the restaurant.

On account of the defendant’s action of going into the restaurant in quick pace towards PW1 with the male holding the bottle; both the defendant and the male rushing towards PW1 without saying a word; the 6 feet male striking PW1 on his head whilst the defendant was standing next to them; the defendant quickly fleeing with the other male as soon as the assault was done; all these pointed to the irresistible inference that the defendant was not within the category of mere presence.  He was there to help to corner PW1, participating as part and party to the assault of PW1 together with his accomplice.

All these clearly showed the defendant was acting in concert with the black top male.”

13.  This finding is also the subject of complaint in this application, but we fail to see how on any view of this case, regardless of whether or not this Applicant himself struck the victim, it could be said that he was other than party to a joint enterprise to assault the victim.

14.  The uncontroverted evidence, on any view, was that two men, including the Applicant, walked into the restaurant, went to the table where the victim was sitting and that at least one of them immediately attacked the victim, and that the two men then ran out of the restaurant.  No testimony was adduced to contradict the obvious inference to be drawn, that both men, whichever one may have happened to strike the blow or blows, were party to this attack.  No possible reasonable inference other than that has been, or can be, advanced. That being so, on this basis alone, this application must fail.

15.  This is an application which from the outset, for this reason alone, has been entirely bereft of merit.  We would say however, for the avoidance of doubt, that we have considered the other grounds and they too are without merit.  The application is dismissed.

16.  Having heard Mr Wong as to whether we ought to make an order for loss of time, we took the view that this was a clear example of a situation where section 83W of the Criminal Procedure Ordinance, Cap. 221, should apply for the reason already given.  Accordingly, we order that 2 months of the time the Applicant has spent in custody pending this application shall not count towards his sentence.