HKSAR v. LEE HON SHUN

CACC 626/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 626 OF 1999

(ON APPEAL FROM DCCC 728/1999)

____________

_______________

J U D G M E N T

_______________

Hon Lugar-Mawson J:

1. The Applicant, Lee Hon-shun, seeks leave to appeal against his conviction after trial on 5 November 1999 in the District Court by Deputy Judge Winston Leung for an offence of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap.212. He also seeks leave to appeal against the sentence of 3 year's imprisonment that the judge passed on him for that offence.

2. The wounding occurred on 2 June 1999 at about 4 a.m., outside the Wan Tun City Noodle Shop in Fa Yuen Street, Mongkok, Kowloon. The victim was Chan Ka-wing, a man of 32, who had been dining at the shop with another man. A dispute arose when Chan went to the cashier's desk to settle the bill. Earlier he had noticed the Applicant abusing the cashier and, as the Applicant was in the vicinity of the cashier's desk, he told him not to be impolite to her in future. In response the Applicant challenged Chan to a fight, to which Chan agreed. The Applicant then darted into the kitchen, seized a chopper, chased after Chan and chopped him with it outside the shop.

3. The fight was seen by two police officers who were patrolling in the street outside the shop. They intervened and arrested the Applicant for an offence of wounding.

4. When questioned by the police the Applicant admitted that he had used the chopper to attack Chan. No objection was taken at trial as to the admissibility of this admission.

5. At trial the Applicant did not dispute that he fought with Chan and inflicted serious injuries on him with the chopper. What was in dispute was the reason for the fight and its location. The Applicant's case was that Chan had initiated the fight by putting him in an armlock with both hands from behind and had then tried to pull the Applicant out of the noodle booth within the shop where he worked. It was because of this that the Applicant said he used the chopper to defend himself inside that booth.

6. Chan's injuries were undoubtedly serious ones. He suffered a 5 cm long laceration over his forehead; a 5 cm long laceration over his right shoulder and a fracture gap of his right clavicle, the collarbone.

7. The Applicant appears before us in person, legal aid to prosecute his appeal having been refused. He was represented at trial by counsel.

8. He has filed a series of 7 documents setting out his grounds of appeal. The first is dated 10 December 1999, the last 10 November 2000. In essence these come down to a repetition of his claim that CHAN Ka-wing attacked him first and he acted in self defence; a criticism of the judge for having accepted the evidence of the prosecution witnesses; a recital of alleged inconsistencies in the evidence of the prosecution witnesses; an allegation that the judge showed bias against him by questioning him in the course of his evidence and an allegation that he was unable to understand the proceedings because of poor comprehension of Cantonese.

Self defence

9. The judge made it clear in his reasons for verdict that he was aware that the Applicant's case was that he was acting in lawful self-defence. He also made it clear that it was the prosecution's duty to prove that the Applicant was not acting in lawful self-defence.

10. It is well established that the law is that a person only acts in lawful self-defence if in all the circumstances he believes it necessary for him to defend himself and the amount of force which he uses in doing so is reasonable. The force used in self-defence is unreasonable and unlawful if it is out of proportion to the nature of the attack, or where it is in excess of what is really required of the defendant to defend himself.

11. Accepting, for the sake of argument, that Chan had been the aggressor and had held the Applicant in an armlock, there was no evidence either from the prosecution, or the defence, that he was armed with any weapon at all. In such circumstances, it is both unreasonable and out of proportion to the nature of the attack upon him for the Applicant to have resorted to the use of a chopper to ward off his assailant.

12. The force which must have been behind the blow with the chopper is certainly inconsistent with what was reasonably necessary in self-defence. It must have required a deliberately aimed blow of considerable force to fracture Chan's right collarbone.

13. Neither are Chan's injuries consistent with them having been inflicted on him by a person whom he held under restraint in an armlock imposed from behind and who took up the chopper to ward him off. They are all wounds consistent only with a frontal attack.

14. The Applicant says that the judge stated, incorrectly, that no medical report on his own injuries was before the court. So far as we can see, this allegation is wrong, there was no such report in evidence. The Applicant spoke of his injuries in the course of his evidence. Today, we have seen a copy of the medical report that was prepared in respect of the Applicant after he was examined at 6.40 a.m. on 2 June 1999 at Queen Elizabeth Hospital. He suffered minor injuries. Bruises were observed to the front of his chest and his lower back. There were two superficial cut wounds on his right thumb and his index finger. He claimed tenderness on his head. The clinical diagnosis was soft tissue injury. He was treated and discharged, in fact he was taken back to the police station. These injuries are such as one would expect to find on a man who had been fighting in the street. Certainly they do not support the claim made by the Applicant in one of his many appeal documents that he was beaten 'black and blue'.

Credibility

15. On the issue of the Applicant's criticism of the judge's acceptance of the prosecution evidence, this was a case that revolved around the credibility of the witnesses both for the prosecution and the defence. The person appointed to resolve issues of credibility is the trier of fact, in the District Court the trial judge. It is not for an appellate court to usurp his function. The courts have made this abundantly clear.

16. In England in R v Turnbull [1977] QB 224 (a case better known for its dicta on identification evidence) Lord Widgery LCJ, heading a five judge bench, in speaking of the Court of Appeal's statutory jurisdiction said, at page 231 C-E:

"...we can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to re-try cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility this Court will only interfere in three circumstances. Firstly, if the jury has been misdirected as to how to assess the evidence; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness, but this is rare."

17. Our jurisdiction, given in s.83 of the Criminal Procedure Ordinance, is expressed in identical terms to that given to the English Court of Appeal in s.13 of the Criminal Appeal Act 1968 as originally enacted, it has subsequently been amended.

18. In Hong Kong In R v R.E. Low [1961] HKLR 13, a hearing before the Full Court of the former Supreme Court, Blair-Kerr J. said, at page 82:

"...an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended upon the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable."

19. Low was quoted with approval in R v Godber [1975] HKLR 340, R v CHAN King-man & others [1980] HKLR 105 and R v Sheikh Abdul Rahman Bux and Others CA 1981 No. 756 (unreported).

20. We have read the passages in the transcript that the Applicant has referred to in his appeal documents. We are satisfied that the judge understood the evidence given before him and that he analyzed and applied it correctly. He had the advantage, which we do not, of having heard and seen the witnesses, including the Applicant, give evidence. He was aware and he demonstrated in his reasons for verdict, even though he disbelieved the Applicant, the burden still lay on the prosecution to prove his guilt on the charge he faced. There is nothing in his reasons for verdict which indicates to us that the judge's approach to the evidence was in any way wrong.

The alleged inconsistencies

21. We have also looked at what the Applicant claims are contradictions and inconsistencies in the prosecution witness's evidence. They are mainly set out in his document of 13 July 2000. In so far as there are inconsistencies they are insignificant ones, such as are commonly found when the evidence of two or more persons is compared. There is nothing in the Applicant's complaint about these matters.

Questioning

22. The questioning of the Applicant by the judge is found in the trial transcript at pages 183K to 185P of the additional appeal bundle. This questioning could not have lasted half an hour as the Applicant claimed in his appeal document of 10 November 2000. We are of the view that it was neither unnecessary questioning, nor was it of such a nature and extent that would give the impression that the judge was pre-disposed against the Applicant. There is some questioning by the judge at page 155, this does not appear to be complained of as it is during the Applicant's demonstration of his struggle. The judge's interjections during the testimony of other witnesses are unremarkable and do not suggest bias or a pre-determination of the Applicant's guilt.

The alleged failure to understand the proceedings

23. There is on the papers before us no evidence that the Applicant failed to understand the proceedings. As is usual, there was in-court translation from Cantonese into English and vice-versa. He gave evidence on his own behalf in Cantonese. We note that in one of his appeal documents, that dated 31 July 2000 in paragraph 2, the Applicant claims to have arrived in Hong Kong from Chiu Chow in 1980. He must have been 20 then, for in the same document he gives his date of birth as 4 November 1960.

Appeal dismissed

24. We are satisfied that the judge's conviction of the applicant on the charge he faced is unassailable on appeal and therefore his application for leave to appeal against his conviction is dismissed.

Sentence

25. We turn now to the application for leave to appeal sentence.

26. The injuries Chan received were serious ones. The blow to his forehead could have caused him to loss an eye. In principle, imprisonment is the appropriate sentence for this offence. The term, of course, can vary with the circumstances of each case. In this case a term of 3 years' imprisonment is not manifestly excessive.

27. The Applicant's application for leave to appeal against his sentence is therefore dismissed.