HKSAR v. CHOW BENJAMIN also known as TSENG WESLE

CACC 118/2017

[2018] HKCA 296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 118 OF 2017

(ON APPEAL FROM DCCC NO 650 OF 2016)

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court) :

1.  In the District Court, the applicant was convicted after trial of one count of ‘wounding with intent’, contrary to section 17(a) of the Offences against the Person Ordinance.  He was sentenced by the trial judge (Judge Casewell) to 15 months’ imprisonment.  Acting in person,[1] the applicant applied for leave to appeal his conviction and having been refused by the Single Judge,[2] renewed his application before us.  We dismissed that application.  These are our reasons.

The Prosecution Case

2.  The applicant and the victim (PW1) were neighbours in a public housing estate: the applicant lived at Room 910; PW1, at Room 906.  It was common ground that there were ongoing complaints between the two for making excessive noise in their own flats.

3.  Of the incident that gave rise to the matter at hand, PW1’s evidence was as follows :[3]

“ 6. On 22 April 2016, a Thai female friend of the PW1’s called Bobo had come around to see him. She had arrived around noon, and PW1 had opened a can of beer. At that time, he says the defendant was making loud noises in his flat, which lies just along the same corridor.

7. Around 1 o’clock, PW1 walked to the defendant’s flat and told him not to make such a loud noise, and he says the defendant told him it was none of his business. PW1 says the defendant picked up a knife from the floor and raised it, saying, ‘Do you believe I will stab you?’ PW1 then left and returned towards his home. He says the defendant opened the grille of his home and walked quickly towards PW1. He held the knife in his right hand. Thereafter, he said, ‘I am stabbing you,’ and stabbed PW1 at the waist. Then he slashed PW1 upwards from left to right across the chest.

8. PW1 himself had picked up an iron pipe, kept in his flat, to defend himself and Bobo. He tried to use it to push the defendant away. He says he was unsuccessful. The pipe was snatched away. The defendant then hit PW1 with the metal pipe, causing him to fall. The defendant then, according to PW1, did an action like riding upon his supine body, sitting on him, and using the knife to stab PW1’s face and head, chest, armpit and shoulder.

9. Eventually PW1 [the applicant?] stood up and returned to his home.  PW1 then, despite his injuries, went back to the defendant’s flat, but Bobo came over and pulled him away and took him home.  The police were called.”

4.  Next, there was Bobo’s evidence.  She was PW2 in the case :

“ 10. ….. Bobo said she saw the defendant come to PW1’s flat, where he stabbed PW1 at the right body. PW1 then took a metal bar or iron pipe to push the defendant away. She saw the defendant wrestle the iron pipe from PW1 and hit PW1 with it. She saw PW1 fall to the ground, where the defendant sat on PW1 and stabbed PW1’s body with the knife. She tried to push the defendant away, and he, the defendant, grabbed her neck. PW1 told her to go away. She left the scene and went into Room 906 and called the police.”

Defence Position

5.  In sum :

“ 4. The defendant says that PW1 first attacked him with an iron pole; that PW1’s injuries must have been inflicted whilst the defendant moved the knife sideways and back to deter the victim from attacking him further. Thus, the defendant says that he was acting in self-defence and that PW1’s injuries were not caused by any intentional act on his part to do grievous bodily harm.”

6.  In detail :

“ 14. The defendant gave evidence in support of his case …..

15. The defendant admitted that on 22 April 2016 he may have been noisy when playing his computer games, and at 1.30 pm PW1 had come over, kicked his iron grille, and said, “Shut up, moron.” PW1 had then returned to his unit. Around 2 o’clock the defendant had left his unit, and he said he heard a sound of hurried paces. He saw PW1 wielding an iron pipe, with which PW1 hit him on the forehead. The defendant returned to his flat, but PW1 used something to block the door. The defendant had managed to stretch his hand to the cabinet which was at the back of the door, and reached what was a Swiss Army knife; I think they are called pocket knives. The blade was not folded at that time; it had been left in that way. He picked it up to protect himself.

16. The PW1 hit him on the head with the iron bar. The defendant was able to push PW1 out to the corridor and return back into his flat. PW1 then had shouted, “Help me to hit him”, and PW1 dashed forward to hit him. PW1 again hit in the direction of the defendant’s head with the iron pipe. The defendant had lifted his right hand to block it. The metal pipe had landed on his right arm. He received wounds on the index finger of his right hand. As he retreated backwards, away from PW1, he was wielding the Swiss Army knife from right to left at breast level. He had felt the knife contact PW1’s body, but PW1 did not stop attacking, and hit him with the metal pipe continuously. The defendant was able to disengage, and returned to his flat. PW1 threw the iron pipe into his residence. He then telephoned the police.”

Past Convictions

7.  It was not disputed that neither PW1 nor PW2 were persons of previous good character.  As was specifically pointed out by the trial judge, the contrary was in fact the case :

“ 12. ….. PW1 had convictions for offences of violence such as robbery, possession of an imitation firearm, wounding and inflicting grievous bodily harm, and assault, behaving in a disorderly manner, and had served considerable periods in prison.[4]

   13. Bobo had convictions for using false and unlawfully obtained travel documents and causing to be made forged representations or statements to Immigration officers.”

8.  By contrast, the applicant :

“ ..... admitted convictions for disorderly conduct and assault …..[5]”

and for those two offences, he had been sentenced to the fines of $6,000 and $2,000 respectively.

Resulting Injuries

9.  Insofar as injuries are concerned, PW1 was undoubtedly the more badly hurt party :

“ 11. ….. PW1 has sustained a 30 centimetre horizontal laceration over the anterior chest, a wound on the right side of the chest, and further lacerations to both shoulder, nose and cheek.”

10.  The medical reports revealed that the “wound on right chest” had in fact given rise to “traumatic haemothorax” and other ancillary conditions for which PW1 had to undergo “video assisted thoracoscopy (and evacuation of blood and clot), exploration of skin wound (and hemostasis) and suture of skin and subcutaneous tissue”, and for which PW1 had to be hospitalized for nine days.

11.  Getting off comparatively lightly, the applicant :

“ 17. …..received injuries to his right index and middle finger, forehead and forearms. These were described in the medical report as ‘Multiple wounds on right index finger and superficial wound on right middle finger’. Those wounds were sutured.”

Trial Judge’s Analysis

12.  Seeing that the injuries suffered by PW1 must necessarily amount to “grievous bodily harm”,[6] the trial judge correctly identified the core issue of the case as being in the question, “Was [it] intended?”[7] Again acknowledging that the applicant’s case was one of self-defence,[8] he then observed :

“ 21. A person acts in self-defence where he actually and honestly believes he was compelled to act as he did in order to defend himself, and then, in all the circumstances, acted with a reasonable response. One cannot necessarily in the heat of an attack gauge with precision the necessary response.

   22. Once raised evidentially, the burden of proving that the defendant did not act in self-defence remains on the prosecution at all times.”

13.  Next, he highlighted the defence submissions the first of which was PW1’s apparent violent disposition :

“ 23. The defence contended that simply because PW1 suffered more serious injuries than the defendant, it did not show that the defendant must have harboured the necessary intent. It was said that PW1, by his criminal record, was a violent character, so it would not be unexpected that he would act in a violent and aggressive manner towards the defendant. It was said that although PW1 had said the defendant attacked him with an iron pipe, there was little evidence of head injuries in the medical reports on PW1.”

14.  Then it was the inconsistencies within, as well as between, PW1 and PW2’s evidence :

“ 24. Also, the defendant said the PW1 had insulted him, the defendant, by shouting, ‘Shut up, moron.’ But PW1 had denied that he had ever said that; yet his own witness, PW2, had heard this. But it was also said that PW2’s evidence should be looked at with scepticism and not relied upon. She had admitted convictions for making false statements. It is also said that her evidence in part materially differed from the witness statements she had given, particularly that after PW1 had been stabbed, that she had said he picked up the metal bar and went to the defendant’s flat, rather than that the metal bar was picked up during the initial assault by the defendant on PW1.

   25. PW2 in cross-examination, when this had been raised with her, had said she was confused at the time of making the statement, and also that the translation had not been, as she understood it, properly rendered, although she did confirm the whole statement by signing it at the time.  Furthermore, it is said that this earlier statement by PW2 would explain how the metal pipe ended up in the defendant’s flat.  He said, one recalls his evidence, that it had been thrown by PW1, and PW1 had not mentioned this act during his testimony.”

15.  Noting that these issues would impact directly on the question of credibility, the trial judge looked to PW1’s injuries for the necessary inference.  His emphasis was on the only kind of attack that could reasonably have resulted in these injuries and whether they were more consistent with PW1’s or the applicant’s account of what happened :

“ 26. These issues require resolution. They border on and are primarily issues of credibility. What is clear on the undisputed medical evidence is that PW1 was the victim of a sustained, forceful - possibly one could characterise it as a frenzied - attack. The catalogue of his injuries is found in the medical reports, and they are extensive. The injuries include what are described as multiple slash and stab injuries over the upper chest, upper limbs and face. The injury to the chest required what was described as surgical intervention, and the requirement was because what was described as a ‘culprit bleeder’ was an intercostal artery spurter that was caused by the entry of the knife into intercostal muscles. The major injuries were to the chest, with a stab wound and lengthy slash wound, with further lacerations on the face and shoulders. The stab wound was 3 centimetres below the right nipple. This was the stab wound which entered into the intercostal muscle and caused the arterial spurter as described in the medical reports. This also required, in treatment, a drain to the chest.

27. There can be, on the evidence I have heard, no dispute that the only way these injuries could have been sustained is by the use of this Swiss Army knife. It is a folding knife which was, on the admission of the defendant, in his hand at the time.

28. I found, having assessed the evidence objectively, that it would not be possible for these kind of injuries to have been caused by the actions evidenced to and displayed by the defendant.  My view is the defendant’s explanation was an attempt to exonerate himself with a self-serving explanation which clearly did not accord with the known and undisputable medical facts.  Furthermore, it is clear that the injuries sustained by PW1 are consistent with the actions of the defendant that PW1 testified to in his evidence.  This clearly bears on that issue of credibility which is the main issue that underlies the resolution of dispute of the evidence in this case.”

16.  The trial judge also explained why he believed PW2’s explanation of her inconsistencies and why these inconsistencies did not go to the core of the prosecution case :

“ 29. Also relevant to this issue in requiring of analysis were the criticisms made of both PW1’s and PW2’s evidence. As I have said, PW1 had a history of violence. He had convictions for assault, drunkenness and robbery. He had been to prison for lengthy periods. PW2 had convictions for making false statements.

30. Her statement did differ from her evidence. But firstly, that part of the statement concerned what had happened after the defendant had stabbed and slashed PW1 and set upon him, sat on him and stabbed him. PW2 says that after that, he was able to pick up the iron bar and go to the defendant’s flat, so it did not, in effect, deal with the main thrust of the prosecution’s case and PW1’s evidence that he, PW1, was attacked by the defendant with the knife at the outset of the incident.

31. Secondly, PW2 says she was confused when she made the statement and that her account was filtered through a double translation from Thai to English and Chinese. She seemed entirely genuine when she said this.

32. I noted these concerns. I consider that the fact of PW1’s history of violence towards others did not mean that he could not be believed or be the victim of violence himself. Nor did I find that PW2’s previous convictions for false statements meant that she should not be believed on this issue. In essence, I found both these witnesses were consistent and unshaken as to how PW1 sustained his injuries as a result of the attack by the defendant.

33. As I observed earlier, these injuries are consistent with the accounts given by them.  They are confirmed by outside objective facts.  I found their evidence was truthful and borne out by the medical facts.”

17.  Adopting a commendably disciplined approach, the trial judge then proceeded to point out why, in his judgment, the applicant’s account lacked veracity.  Much emphasis was placed on the fact that the weapon of attack needed unfolding, as well as the nature of the applicant’s injuries :

“ 34. I also found the defendant in this matter to be basically untruthful. His evidence was clearly not consistent with the known objective facts, and contained elements that lacked credibility. The only way for the PW1’s injuries to have been sustained was by the use of that Swiss Army knife, yet the defendant’s account of how he used the knife could not have caused the plethora of injuries sustained by the PW1, the multiplicity and extent of those injuries, especially the stab wound to the chest that required draining and surgical intervention. Furthermore, the slash up across the chest, together with the lacerations on the face and shoulder, could not be accounted for in his account, but they certainly were consistent, certainly the injuries on the head and shoulder, with PW1 having been sat on and stabbed.

35. His explanation also relies upon the knife, which is a folding knife, being left open, which appears to me to be a highly unlikely possibility for storage of such an item, especially left open on a cabinet near the entrance. This account by the defendant appeared to me to be contrived to suggest that the defendant picked up a weapon of opportunity rather than deliberately sought out and activated by unfolding the weapon of attack.

36. I did note the defendant had sustained some relatively minor injuries compared with PW1. These injuries in fact appear to be ancillary to the use of the Swiss Army knife; for example, the cutting injuries to the fingers. The bruise and scratch to his forehead is more consistent with PW1’s use of the iron bar to fend off the defendant himself, rather than the sustained assault that the defendant says he was subjected to.

37. I found the defendant to be fundamentally untruthful.  His account was contrived and exaggerated.  I had no hesitation in dismissing it and rejecting his evidence.”

18.  In conclusion, the trial judge said :

“ 38. The evidence that I found to be reliable supports the proposition that the defendant, annoyed with PW1, deliberately and systematically attacked PW1 by stabbing and slashing him with the Swiss Army knife. This was not and could never been seen as an act of self-defence. The defendant armed himself with a knife which was kept in the flat. The knife itself required unfolding. It needed to be brought into operation. The defendant has left the flat with the knife to attack PW1.

39. PW1 had, at some stage of the attack after the initial assault, been able to gain access to the iron bar to defend himself and Bobo, but this must have been after the defendant’s initial and sustained assault.

40. The defendant did not act in self-defence when he inflicted the injuries sustained by PW1; quite the opposite, in fact.

41. From the findings I have made, it is clear not only did the defendant inflict the wounds sustained by PW1, but also such wounds must have been inflicted with an intent to cause grievous bodily harm. The use of the knife in this way must lead to that irresistible inference that such an intent existed.

42. Thus all the elements of this offence are in place and proved beyond reasonable doubt.  The defendant is convicted of the offence charged.”

Grounds of Appeal

19.  In his Form XI (Notice of Application for Leave to Appeal), the applicant simply stated the “the judge inappropriately accepted [PW1 and PW2] to be honest and reliable witnesses”.

20.  In a letter dated 1 October 2017 to this Court, the applicant elaborated his complaint and made the following main points (our paraphrase) :

•    Had the attack happened in the way that PW1 described, his injuries would be different from those in the medical reports. For example, there would have been a lot of bloody stab wounds in PW1’s chest, as well as injuries to his head.  There was however no evidence of such wounds or injuries.

•    The judge wrongly accepted the evidence of PW1 to the effect that PW1 had no chance to attack the applicant with an iron pipe.  If that was correct, there would be no reasonable explanations to the applicant’s injuries on his forehead.

•    The evidence of PW2 was incredible.  She did not have a clear criminal record.  Her evidence in court was substantially different from that in her witness statement.  The judge should also have borne in mind that PW1 and PW2 were in an intimate relationship and they might have collaborated with each other.

•    The judge erred in reciting PW1’s evidence.  PW1 did not say that the applicant had sat on him and used the knife to stab his face, head, chest, armpit and shoulder.  PW1’s evidence was that the applicant rode upon his waist and used the knife to “stab, stab, stab…” his chest.

•    The judge had wrongly rejected his defence of self-defence.  The infliction of serious injuries could be the result of, and was consistent with, the act of self-defence and not suggestive of an intentional attack.

•    He had no intention to attack PW1, or he could have used a larger knife.  He was only acting in self-defence.

•    PW1 had previous criminal convictions and should not have been found to be truthful.

•    Given the above, the offence had not been proved beyond reasonable doubt.

21.  In his Form XIII (Notice of Renewal of Application), the applicant repeated some of his previous points as follows (again, our paraphrase) :

•    The injuries that PW1 described in court differed from the injuries that were recorded in his medical reports.

•    There were substantial discrepancies in PW2’s evidence.  They rendered her an unreliable witness.  She might well have committed the offence of perverting the course of justice.

•    The evidence of PW1 was untruthful.  PW1 was not acting on self-defence; the applicant was.

•    His conviction was unsafe because it was PW1 who assaulted him at the first place.

Discussion

22.  We do not think there is anything in these grounds.

23.  Taking the injuries of the parties as an example, it is clearly stated in one of PW1’s medical reports that he suffered “skin cut wound and abrasion”.  This category or description of injury is then explained and enumerated in detail :[9]

“ (1) Skin cut wound and abrasion

Multiple skin cut wounds:

1. one long skin cut about 30cm in length from left anterior chest wall obliquely down to right midclavicular line and then deepen into 6^th right pleural space

2. small 0.5cm cut wound just above the above mentioned wound at its middle level

3. one 2-3cm cut wound at right shoulder

4. a 5cm superficial cut wound at left shoulder

5. a 4.5-5cm right cheek cut wound

6. 1cm vertical cut wound above the nose

7. 3cm chest drain wound at middle axillary line at right nipple level

   (2) Chest injury

        ……”

24.  We have also seen the post-treatment photographs[10] of PW1’s head, arms and upper torso which, in our judgment, confirm rather than contradict his evidence.  In particular, we see injuries at the back of PW1’s head and neck which are consistent with being hit by a blunt object.  Ultimately, whether these and other injuries should have been more serious (or “bloody” in the applicant’s words) would depend on how effectively PW1 had managed to ward off some or all of the applicant’s blows with the knife.

25.  Likewise, we have consulted the applicant’s medical report, admitted orally under section 65C of the Criminal Procedure Ordinance but, for some reason, not forming part of the appeal bundle.  In that report, it is indeed stated that the applicant had suffered “forehead” injuries.  But, as the trial judge correctly noted, it was the applicant’s finger wounds that had warranted any treatment: they were sutured. As the photographs show,[11] the only forehead injury that the applicant suffered appeared to be no more than inch-long abrasion.

26.  In short, there is no real discrepancy between how PW1 subjectively described the attack and what is objectively revealed in the medical reports.  HKSAR v Tang Hin-sun HCMA 523/2017, a case which the applicant relied on and whose result turned on such a discrepancy, therefore, has no application.

27.  Finally, it is our view that the credibility issue between the parties had been adequately dealt with by the trial judge.  On the other hand, the applicant was unable to say where the trial judge had gone wrong in his reasoning, when asked by us.

28.  In his written judgment, the Single Judge said this :

“ 27. The judge heard and saw the witnesses, which is an advantage an appellate court does not have. As the Court in R v Li Chun Yue[12] put it, in the concluding paragraph of its judgment :

‘ In substance, this Court is asked to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the judge who heard and saw the witnesses at trial. This is not an exercise that this Court can undertake unless it is shown that the judge in some way failed in his duty. We must ask, has the judge’s evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way?’

   28. I can at this stage see no obvious error, omission or flaw in the judge’s reasoning as to why he ultimately accepted the evidence of PW1 and PW2 and rejected the evidence of the applicant.  Indeed, it would perhaps have been surprising if the judge had accepted that the applicant had inflicted the catalogue of extensive and serious injuries found on PW1 in self-defence, when the applicant’s injuries were by comparison so minor, and when they were inflicted, at least on PW1 and PW2’s account, inside PW1’s own home.”

We echo his sentiment.  That is in fact our position having read the applicant’s homemade grounds of appeal and having listened to his oral supplements during the hearing.

Disposal

29.  The applicant’s renewed application for leave to appeal against conviction is dismissed.  If it was not the case that the applicant had fully served his sentence and was discharged from prison, we would have no reservation awarding a loss of time against him, the appropriate warning having been given to him by the Single Judge.