HKSAR v. LO MAN KAM

CACC 212/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 212 OF 2001

(ON APPEAL FROM DCCC 103 OF 2001)

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REASONS FOR JUDGMENT

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 19 June 2001, following a trial in the District Court before Deputy Judge Ian Candy on a charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance Cap. 212, the Applicant, aged 51, was convicted and sentenced to three and a half years' imprisonment. On 7 May 2002, we dismissed his application for leave to appeal against conviction. We now give our reasons for doing so.

Prosecution's case

2. The prosecution's case substantially depended on the evidence of Mr Szeto Ming (the victim) who had known the Applicant for about ten years. The two men lived in the same village in Sai Kung and prior to this incident they were on speaking terms.

3. On 11 October 2000, the victim said that he had his attention drawn to a mechanical digger which was removing soil behind his house in the village. The digger was still working on the land on 12 October 2000. This led to the victim requesting the operator to stop because of the possible adverse effect on drainage at the site. The Applicant then arrived. He had a brief conversation with the victim resulting in an arrangement to discuss the matter further when the Applicant returned from a visit he had to make that day to Shenzhen.

4. On the following day, the Applicant said that he telephoned the victim and it was agreed that they would meet at the Rural Committee Office in the village. The victim said that he went there at sometime after 2.00 p.m. and waited for the Applicant to arrive. Some time later, the Applicant walked into the premises. He was followed by a number of men. The Applicant allegedly approached the victim saying "Uncle Szeto". The victim went to stand up, but he was pinned down in his chair by the Applicant who, with his free hand, struck the victim on his nose and said "It's him". The other men then joined in the attack, using weapons which included batons and metal bars. At this time, the Applicant remained near the victim as the others were assaulting him.

5. At one stage, the victim was able to get up and run outside but he felt weak in the legs and fell to the ground where he was kicked. He shouted for help several times and then heard a woman shout "help" as a result of which, it seems, his assailants ran to some waiting vehicles. The victim saw the Applicant leave in a red vehicle he recognised as the Applicant's before he called the police.

6. As the victim's assailants fled, a Mr Cheung (PW2), who was a former employee of the victim, arrived at the scene. He estimated that he arrived between 2.30 and 3.00 p.m. He had an appointment to see the victim. He could hear the victim calling for help. When he saw a group of men running towards some vehicles, he waited for them to depart and he then followed them in his car for a short distance. PW2 was able to record the make and the registration number of one of the getaway vehicles as "Benz, ET 3633". This information was later supplied to the police.

7. At 3.26 p.m., which counsel in these proceedings seemed to accept was about 40 minutes after the assault had taken place, a police patrol vehicle noticed two Mercedes Benz vehicles, including ET 3633, travelling at speed. Police gave chase with their sirens sounding and lights flashing. The cars failed to stop. Eventually, when both cars were stopped, the Applicant was found in the rear seat of the second Mercedes car, the number of which had not been noted by PW2. This was not the red vehicle in which the Applicant had allegedly fled the scene of the assault.

8. The victim's injuries included a broken left forearm and a 7-centimetre laceration on the top of his scalp. He was eventually admitted to Queen Elizabeth Hospital on 13 October 2000 where he remained until his discharge on 18 October 2000.

9. On 31 October 2000, the victim attended an identification parade at Sau Mau Ping Police Station where he identified the Applicant as one of his assailants.

Defence case

10. The Applicant elected to give evidence. He claimed that he had been involved in levelling out a piece of land which could then be commercially utilized for dog kennels. He said that on 13 October 2000 he had arranged to meet six people who were interested in running such a business and renting the piece of land for this purpose. A defence witness, Mr Lau (DW2), was one of them. That afternoon, after viewing the land, the two Mercedes Benz cars in which they were then travelling towards Kowloon Bay were stopped by the police. The Applicant and DW2 claimed that they were unaware that the police were interested in stopping these two cars until immediately before they were brought to a halt.

11. The Applicant acknowledged that he was in the village at the material time with a group of six other persons which included DW2. However, he emphatically denied that either he or any of the other persons in the group had taken any part in assaulting the victim at the Rural Committee Office. So far as the allegation that he was the main culprit responsible for this attack was concerned, the Applicant alleged at his trial that the victim had been motivated to give deliberately false evidence against him.

Grounds of appeal

12. Against the evidential background we have briefly set out, three substantive grounds of appeal have been raised.

13. In the first of these, it was submitted by Mr Jenkyn-Jones, on the Applicant's behalf, that the judge had:

"failed to direct himself of the special need for caution required in cases depending on 'identification evidence' and further failed to warn himself that a convincing, credible or honest witness can be a mistaken witness."

14. This ground provided yet another example encountered by this court of an apparently commonly held misconception that it is the duty of a District Court judge, in every case where any issue relating to identification has arisen, to rehearse the full directions taken from R v Turnbull [1976] 63 Cr App R 132, [1977] QB 224 which, where appropriate to do so, it would be necessary to give to a jury in the Court of First Instance. In such a case as this, where it was the victim's credibility which was essentially at issue, the misconception is even more clearly illustrated. The Applicant was well known to the victim and only the day before this attack they had been engaged in face to face conversation. Counsel for the defence at trial had taken the sensible and only realistic course open to him when he submitted in his final address to the court:

".... I would respectfully submit the identification by Szeto Ming is of very little value as this person has known him for ten years plus. Because of the other criticisms I have made of Szeto Ming's evidence, I would respectfully submit that that identification is neither here nor there. If he's decided that Mr Lo is the guilty party and he's decided to guild the lily by saying he actually saw him there, it's not going to be very difficult for him to identify Mr Lo in a police line-up. It's going to be very easy." (Appeal bundle p. 107)

15. The main point made in these proceedings by Mr Jenkyn-Jones was that the judge specifically failed to warn himself of the possibility of mistake by a witness he had found to be convincing and about the need for special caution in the approach he took to evidence concerning identification. This argument, however, had no validity because the judge not only dealt with the credibility of the victim's evidence but also went on to deal with identification. The latter topic was covered in terms which generally reveal that he had kept in mind the importance of the Turnbull guidelines despite the fact that this was not really a case in which he needed to give any detailed consideration to those principles.

16. A situation similar to that which arose in the present case, and here we can acknowledge our gratitude to Mr Chapman for his considerable research and industry in providing us with a most comprehensive and helpful analysis in his written argument of the law and the facts, is to be found in R v Cape & Ors [1996] 1 Cr App R 191 where Roch LJ, having reviewed some of the authorities relating to the approach to evidence of 'recognition', observed at p. 198:

"Finally, we were referred to the case of Courtnell [1990] Crim LR 115. In that case the appellant had been drinking after hours at a public house. As the manager was removing the till trays and about to lock up the appellant grasped his throat, caused a wound to his forehead and stole the money and stock. The manager, who had known the appellant for one week as a visitor to the public house, identified the appellant the following day at a confrontation. In response to being identified the appellant said, 'You'd better check if he's drunk. He is stitching me fucking up'. The defence was one of alibi. The appellant said he had been at another public house with someone else at the relevant time. Following conviction for robbery and wounding, the appellant appealed principally on the ground that the judge wrongly withdrew the issues of mistaken identification from the jury. The holding is recorded in the Criminal Law Review in these terms:

'Dismissing the appeal, it was true that mistaken identification was withdrawn from the jury. That would have been a serious, possibly fatal, misdirection if mistaken identification had been an issue at the trial. It clearly was not; the defence at trial was run on the basis that the identification was fabricated. Counsel for the appellant, who was not trial counsel, had conceded that this was so. It was a point which he had already accepted in his advice on appeal, which had been included with the papers. The concession was rightly made because the whole thrust of the defence was that [the manager] was lying, not that he was mistaken.'

In the Criminal Law Review at p. 116 there is a commentary on that decision which says:

'The Turnbull rules were primarily designed, as Lord Widgery so vividly put it in the later case of Oakwell [1978] 1 WLR 32, 36-37, to deal with the "ghastly risk run in cases of fleeting encounters." Thus the rules are expressed to apply "wherever the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken." If the defence alleges, not mistake, but a frame-up, no useful purpose would be served by giving the warning.'

With that passage this court agrees."

17. The passage in Oakwell in this citation had also been referred to in Reid (Junior) v The Queen [1990] 1 AC 363 at 380B, and with the greatest respect, what is set out in Cape & Ors was plainly a correct statement of the law.

18. Mr Jenkyn-Jones referred us also to Shand v R [1996] 2 Cr App R 204 where, in an appeal from the Court of Appeal in Jamaica, where the quality of the identification evidence was exceptionally good and where there had been no suggestion of a mistaken identification, the Privy Council held at p. 209 when applying the proviso:

"The importance in identification cases of giving the Turnbull warning has been frequently stated and it clearly now applies to recognition as well as to pure identification cases. It is, however, accepted that no precise form of words need be used as long as the essential elements of the warning are pointed out to the jury. The cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence. In the latter type of case the judge should normally, and even in the exceptional case would be wise to, tell the jury in an appropriate form to consider whether they are satisfied that the witness was not mistaken in view of the danger of mistake referred to in Turnbull."

19. Their Lordships in the Shand judgment made reference to R v Courtnell [1990] Crim LR 115 which had been cited in Cape & Ors (above). Additionally, they referred to Beckford v R [1993] 97 Cr App R 409 and cited at page 209 a passage also to be found in Cape & Ors taken from p. 415 in Beckford:

"Of course no rule is absolutely universal. If, for example, the witness's identification evidence is that the accused was his workmate whom he has known for 20 years and that he was conversing with him for half an hour face to face in the same room and the witness is sane and sober, then, if credibility is the issue, it will be the only issue. But cases like that will constitute a very rare exception to a strong general rule."

20. These cases serve to illustrate yet again that every case will depend on its own facts. Bearing in mind that in the instant case, the prosecution wholly depended on the victim's identification of the Applicant as the leader of the attack group who allegedly, having first addressed the victim, then went up to him and struck him in the face before standing aside while the others with him set about the victim with weapons, the question we thought it prudent to ask ourselves was whether, on the assumption that the victim had not been motivated by malice to make this allegation, the judge had asked himself if there was any possibility of a mistake having arisen over the identification of the Applicant.

21. Mr Jenkyn-Jones tried to counter this approach by highlighting a number of shortcomings to be found in the evidence given by the victim to illustrate that his evidence had been unreliable. We did not find this a useful exercise as such contradictions and inconsistencies as there had been, were dealt with in a succinct and most able speech from counsel, Mr Raffell, in the court below. These would plainly have been in the judge's mind who then only needed to make reference to those issues he considered to be of the greatest significance in arriving at his verdict, and this he had done.

22. The answer to the question we posed to ourselves was to be found in the Reasons for Verdict where the judge, when dealing with credibility, made the following observations amongst others:

"In arriving at my verdict in the case I have had to take note of all of the evidence and to assess the credibility of the witnesses and each of them. In this regard I have to say that I found the evidence of (the Applicant) and that of his witness to be lacking in credibility. I am satisfied that neither of them is telling me the truth.....

Having regard to the question of the credibility of the prosecution witnesses, and in particular (the victim) and PW2, I am satisfied that each of them and in particular (the victim) and PW2 are witnesses on whose evidence I can rely. I am satisfied that they are truthful witnesses. I am satisfied, in particular, that (the victim) is not concocting his evidence against (the Applicant) nor exaggerating.....

I was satisfied that neither (the victim) nor PW2 was being untruthful, nor guessing, nor exaggerating what they knew. I was satisfied that they were not in collusion in their evidence. Indeed, such differences as did exist between them relate to relatively minor events and given the lapse of time since the events such discrepancies are no more than to be expected and are in themselves, in my view, a further indication of the truthfulness of each of the witnesses.....

Counsel for (the Applicant) points to the possible motives for (the victim) to lie namely, to get (the Applicant) out of the way so that he, (the victim), could get the land which was occupied by (the Applicant) for his own developing purposes. I have considered that in the whole context of the evidence and in the context of the background which was described, I am satisfied that this is somewhat fanciful and not realistic and it does not in any way affect my view of the credibility of (the victim).....

The fact that (the victim) did not immediately or at a very early opportunity give (the Applicant's) name to the police can, as I have said, be accounted for by the fact that he was in a confused and worried and indeed distressed condition. It is not, in my view, to be taken as an indication that he was concocting his evidence against (the Applicant) or merely assuming the (Applicant's) involvement." (Appeal bundle pp. 11-14)

23. There were also references by the judge to the victim's identification of the Applicant. He said, amongst other things:

"Insofar as the issue of identification is involved in this case, it is not a case of a fleeting glance since both (the Applicant) and (the victim) are known to one another, living in the same village and I think you both say that you had known one another for about ten years. So it is not a question of a fleeting glimpse of an attacker.

(The Applicant's) case is that while (the victim) may well have been attacked, he is wrong in his identifying (the Applicant) as one of those assailants. Well, it is without doubt and not challenged at all by the defence that (the victim) was assaulted by a group of individuals in what appears to have been a concerted and sustained attack. The question which falls to me to decide is whether or not (the Applicant) was part of that attack......

I am satisfied that even having been assaulted and suffering the injuries which he did, his identification of the (Applicant), as being the first one to assault him at the (Rural) Committee Office, is correct and is reliable. He has known the (Applicant) for a considerable time, lives in the same village and indeed had spoken to him the day before .....

As to the vehicles which left the scene, I am satisfied that (the victim) was correct and accurate when he said that the (Applicant) left in his own vehicle ..... That evidence is supported by PW2 who described a similar red vehicle with an open back as one in which the group which he saw leaving the Rural Committee Office fled the scene." (Appeal bundle pp. 8-13)

24. We noted that amongst his observations, the judge had stated that this was not a 'fleeting glance' case because the Applicant was well known to the victim. The 'recognition' by a victim of his assailant would not normally be regarded as a factor which would affect whether or not identification arose from a 'fleeting glance'. However, it is easy to see what the judge was intending to convey. Quite simply, in the particular circumstances which prevailed, with the Applicant and the victim being so well known to each other, there was no real opportunity for a mistake to have occurred in the circumstances described by the victim. We would respectfully suggest that a better way of expressing the fact that this case was not, in reality, concerned with a 'fleeting glance' might have been by simple regard to all the circumstances. Here, the victim was actually waiting to meet the Applicant. He expected to see him and when the door opened it was the Applicant who was there. The circumstances gave the victim ample opportunity to see the Applicant. We found it wholly artificial to describe such a scenario as having given rise to a glance which was merely fleeting.

25. The judge was sure that the victim's evidence had not been motivated by malice and he had also assured himself that no mistake had occurred in the identification. In our opinion, we consider his approach was above criticism.

26. Accordingly, this ground failed.

27. In the second and third grounds, which we propose to deal with together, it was contended that the judge had, in his evaluation of the evidence for the prosecution, erred in accepting the evidence of the victim and PW2, and that, in his evaluation of the defence evidence, had erred in rejecting the testimony given by the Applicant and DW2.

28. Mr Jenkyn-Jones, as we have already said, provided an in-depth analysis of some of the more controversial evidence given by the witnesses on each side at trial in an endeavour both to highlight some of the shortcomings and inconsistencies in the prosecution's case and to demonstrate that the defence evidence was not only consistent with innocence but also cast doubt on the reliability of PW1.

29. We do not propose to go down the lengthy route adopted by Mr Jenkyn-Jones. There were, of course, a number of inconsistencies in the account given by the prosecution witnesses. It would have been extraordinary after such an incident if there had not been. One factor giving rise to some of these may well have been, as the judge considered likely, the condition of the victim after he had been attacked. One police officer (PW5) described the victim as being "half conscious" before being placed in the ambulance. We observed that the victim even stated that he had dictated a will to a police officer who accompanied him to the hospital.

30. Once again, these grounds of appeal illustrate a misconception on the part of counsel as to the duties of this court. We are not empowered to re-try a case with all the disadvantages under which an appellate court necessarily labours bearing in mind that we have neither seen nor heard the witnesses. It is for a jury in the Court of First Instance or, as here, a judge in the District Court, to evaluate the evidence. Obviously, where there has been a material misdirection by the judge in either level of jurisdiction or an omission to give any direction in circumstances where one should have been given, it may well be necessary for this court to exercise its powers of intervention. It is otherwise generally not for the Court of Appeal to usurp the function of the judge or the jury when it comes to the resolution of issues of credibility. (See: R v Turnbull (above) and HKSAR v Lee Hon-shun CACC 626/1999.)

31. In the present case, the judge gave a brief analysis of the salient features of the evidence and the relevant law. In carrying out this exercise, he did not cover every point touched upon in evidence, nor indeed was he under any obligation to do so. The contention by Mr Jenkyn-Jones that the judge had not sufficiently examined the circumstances revealed by the evidence generally in order to determine the quality of the identification evidence was misconceived.

32. Equally, we reject the submission that the judge erred in his approach to the defence evidence. We noted with particular disapproval the suggestion that the judge, in concluding that the Applicant and DW2 were not credible witnesses:

"appears to have been pre-disposed to consider their evidence with scepticism or cynicism."

33. The transcript provided no support for such a suggestion and it turned out that the suggestion had been mounted upon a misinterpretation of the judge's opening remarks in the first paragraph of his Reasons for Verdict.

34. Additionally, Mr Jenkyn-Jones sought to criticise the judge for "curtailing the scope" of questions asked by counsel on both sides on matters affecting credibility and for resorting to speculation when "purporting to resolve or explain such inconsistencies, inherent improbabilities and inadequacies" in the prosecution evidence. We have examined the transcript and were wholly satisfied that there was no justification for these criticisms.

Conclusion

35. There is no substance to any of the grounds raised on the Applicant's behalf and there is nothing to suggest that this verdict was unsafe or unsatisfactory. The Applicant was identified by someone who knew him well and he was arrested about 40 minutes later in one of the cars that had been in the convoy of getaway vehicles from the scene of the crime.

36. For all the reasons we have given, we dismissed the application.