R. v. IP CHONG FUN and Another

IN THE COURT OF APPEAL

1995, No. 502
(Criminal)

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J U D G M E N T

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Yang, C.J.:

1. This is the judgment of the court.

2. The 1st applicant (A1) was convicted after trial in the District Court of one charge of claiming to be a member of a triad society (Charge 1), and another charge of wounding with intent (Charge 3). The 2nd applicant (A2) was convicted after trial of one charge of claiming to be a member of a triad society (Charge 2) and the same charge of wounding with intent (Charge 3).

3. A1 was sentenced to imprisonment for half a year on Charge 1 and three and a half years on Charge 3, sentences to run consecutively. A2 was sentenced to the Detention Centre on both charges.

4. A1 now seeks leave to appeal against convictions and sentences. A2 seeks leave to appeal against convictions only.

5. The Particulars of Offence in relation to Charges 1 and 2 alleged that A1 and A2 on 24 April 1994, outside 152B, Wanchai Road, ground floor, claimed to be a member of the Tung Luen She Triad Society. The Particulars of Charge 3 alleged that on the same day and at the same place the two applicants unlawfully and maliciously wounded one Lau Wing Kei ("Mr Lau"), with intent to cause him grievous bodily harm.

6. Briefly, the prosecution case was that at about 11:45 pm on 23 April 1994 when Mr Lau's son-in-law, Leung Yuk Tim by name ("Mr Leung"), was about to close the family noodle shop at the address described in the Particulars, a man whom he did not know at the time but later identified as A1 came up and used foul and abusive language towards him. A1 was joined by another man, later identified as A2, who told Mr Leung that A1 was drunk, and he tried to pull A1 away. However, a little later, A1 returned and created a disturbance in the noodle shop. A1 grabbed a metal pole in the shop, whereupon Mr Leung attempted to re-possess it. A struggle ensued, during which A1 said, "I am Lo Tung of Spring Garden Street."

7. Leung immediately understood these words to be a reference to membership of a triad society of that street in Wanchai. He said in reply, "You don't tell me those things or I'll report to the police."

8. In the meantime, his wife's younger sister Lau Ka Man ("Ka Man", a thirteen old school girl from California) telephoned Mr Lau to tell him there was trouble at the noodle shop. Mr Lau and his wife (Mrs Lau) left their home and returned to the shop, which was only a five-minute walk away. When Mr Lau arrived he saw Mr Leung arguing with A1 and A2.

9. Ka Man had also telephoned the police from a nearby shop.

10. When Mrs Lau (Ka Man's mother and Leung's mother-in-law) arrived ahead of Mr Lau, A1 and A2 used abusive language towards her. An altercation followed, during which A1 said "I am tai lo of society" and twice declared himself to be of "Lo Tung". Mrs Lau was also assaulted.

11. Then the uniformed police arrived and after taking down some particulars in their notebooks, advised those present to leave.

12. Mr Leung returned home as advised. A1 and A2 also left the shop.

13. Mr Lau was then approached by "a third man", followed by A1's and A2's return. A2 declared that he belonged to "Lo Tung". He told Mr Lau that he had already disclosed who he was and yet "your son-in-law had a fight with my brother."

14. What transpired up to that stage is described by the learned trial judge in his Reasons for Verdict as "the first incident".

15. A1 did not give or call evidence at the trial. A2 gave evidence, the gist of which is that his friend, A1, was drunk and started quarrelling with those at Mr Lau's noodle shop for no apparent reason so he, A2, was obliged to pull him away and send him home.

16. Then "the second incident" occurred. It took place about five minutes after the police officers had left the scene. Suddenly, three or four men rushed at Mr Lau, led by A2. A2 held a beer bottle and went straight to Mr Lau and struck him on the forehead with it. The bottle broke, and A2 thrust the broken bottle into his chest. When Mr Lau fell on to the ground A1 and A2, together with the other men, kicked and punched him.

17. It is not here necessary to repeat the medical evidence, save that Mr Lau suffered lacerations and profuse bleeding. He had undoubtedly been "wounded" within the meaning of section 17 of the Offence Against the Person Ordinance, Cap.212.

18. In this connection, the issues are: (1) whether A1 and A2 had formed a specific intent to cause grievous bodily harm, and (2)whether they did wound Mr Lau.

19. Up to this point in the Reasons for Verdict, the trial judge has set out with clarity the evidence of the prosecution witnesses and his assessment of their credibility. He finds them honest and reliable.

20. Then follows what the judge calls "Findings on prosecution case". He finds that A1 and A2 claimed themselves to be of Lo Tung Triad Society "at various stages during the two incidents". He says:

"I find that there was a continuous chain of evidence to link both Defendants between the two incidents I have described."

21. He finds that A2 initiated the assault on Mr Lau by attacking him with a glass bottle. He finds no evidence that A1 knew his friend was about to produce and use a bottle in the assault.

22. The learned judge continues:

"However, far from distancing himself by walking away in disgust when the bottle was used, D1 joined in the subsequent punching and kicking of Mr. Lau as he started to fall to the ground and he lay there. He thereby aided and abetted the wounding of Mr. Lau with intent to cause him grievous bodily harm. I say this because (apart from aiding D2 in what he did) to kick a man already so severely wounded must give rise to an irresistible inference that D1 intended to cause Mr. Lau grievous bodily harm."

23. The judge then deals with the "Defence Case".

24. He notes that A1 elected not to give evidence. He notes also that nowhere in A1's cautioned statement did he tell the police he was drunk at the time of the first incident. Then he considers defence counsel's submission that the specific intent to wound was not established because of A1's drunkenness.

25. He further notes that apart from references by some of the prosecution witnesses, including the arresting police constable, to having "smelt alcohol" from A1's breath, the only other references to drunkenness came from what the Lau family told the court of what A2 had said about A1 and what A2 himself said in evidence about A1. He rejects A2's evidence in toto. The judge finds no "evidential foundation" in A1's case to raise the issue of drunkenness.

26. The judge says in conclusion:

"I find that there is nothing in D1's Defence to cause me to have the slightest doubt on the prosecution case on both charges against him; and I convict him on both charges."

27. When the Reasons for Verdict come to A2's evidence, the judge finds it "entirely unconvincing even on the balance of probabilities", and, "his evidence raised no reasonable doubt in my mind on the prosecution case". He therefore convicted A2 on both charges.

28. We now come to the Grounds of Appeal.

29. A1's complaints are set out in his Perfected Grounds. The gravamen of his Grounds of Appeal as regards Charge 3 (Grounds 1-4) is that: (i) he was drunk and could not have formed the intent to cause grievous bodily harm; (ii) that A1 was wrongly precluded from raising the issue of drunkenness; (iii) that the judge was wrong in concluding that he found no evidential basis for accepting what A2 said about A1's drunkenness and in rejecting other parts of A2's evidence; and (iv) that A1's bizarre behaviour indicated that he was affected by drink.

30. The gist of his Grounds as regards Charge 1 (Grounds 5-8) is that there was no evidence to show that A1 claimed to be a member of Tung Luen She Triad Society as set out in the Charge Sheet. It is also argued that the judge failed to direct himself that each claim of membership is a separate offence, and he erred in accepting all claims as being embraced in Charge 1.

31. Briefly, A2's Grounds of Appeal are (i) the judge made or appeared to make final findings on the particular case before he had considered the defence case, and three passages in the Reasons for Verdict are cited in support of this complaint; (ii) there is a real possibility that A2 was a truthful witness. By way of an additional ground of appeal it is argued that there was no evidence to show A2 claimed to be a member of Tung Luen She Triad Society as charged.

32. In the course of the hearing of this application we have been much assisted by counsel's full written submissions supplemented by their oral submissions before us. Suffice to say that we have considered their submissions with care.

33. We now deal with the two charges.

34. First we deal with Charge 1.

35. It is true the evidence shows that A1 and A2 at various times claimed to be members of Lo Tung. There was no evidence that they used the words Tung Luen She. Here it is necessary to refer to the evidence of a Detective Sergeant, a triad expert:

"'Lo Tung' is another name for a triad society with the character 'Tong'. This society was established around 1905 in Hong Kong. Later on, after it has been established it went on to set up sub-societies in Hong Kong amounting to about 20 now.

By 'sub-societies' I mean branches. Today most of the branches survive by name only but do not exist.

Now there are only one or two societies of triad society with the character 'Tung' which are rather active. Now the most active one is named 'Tung Luen She'."

36. Reading the evidence in its proper context it must mean that the Tung Luen She is a "sub-society" of Lo Tung. There is in our judgment nothing in the complaint that the particulars of the charge have not been proved.

37. The next complaint is that the judge failed to identify any particular claim to membership, and treated the several utterances as a claim of membership within the meaning of the Particulars of Charge 1. Clearly, on the evidence, the first and second incidents were but two stages of one continuous transaction. It matters not that the accused made the claim of membership on more than one occasion in the circumstances of this case. There is nothing in this ground of appeal.

38. A1's complaints under Charge 3 are misconceived. The judge too appears to have thought that a "proper evidential foundation" had to be laid before A1 could "raise the issue of drunkenness". He cited The Queen v. Mohammed Hussain HKCA No.197 of 1991, which is a case on automatism, not on drunkenness as such. But there is no such defence as a defence of drunkenness. The issue here is whether A1 may have been intoxicated to such an extent that he was unable to form the specific intent required for a section 17 wounding.

39. In the absence of any evidence of intoxication, the judge would have been entitled to come to the conclusion that the prosecution had discharged their burden of proving specific intent in all the circumstances of the case.

40. The only evidence of A1's intoxication came from A2, which was rejected by the judge. Police officers who spoke with A1 gave evidence that he smelt of alcohol. Families of the victim said that A2 told them A1 had been drinking. On such evidence the judge was entitled to say that in the light of all the evidence, including the evidence of A1's drinking and his behaviour, he was sure that A1 had the specific intent to wound. There is no evidence in this case whereby the judge might conclude there was a reasonable possibility that because of intoxication, A1 did not form the requisite specific intent: vide R. v. McKinley [1994] Crim L R 945, and the commentary thereto.

41. There is nothing in the Grounds of Appeal relating to Charge 3.

42. A2's grounds are based on the passages in the Reasons for Verdict referred to above.

43. Our attention has been drawn to a passage in the judgment of O'Connor J in The Queen v. Chan Cheong Lam, Magistracy Crim App No. 1560 of 1989 (unreported), at p.7:

"I agree with Barwick C.J. in Pryor's case, the use of phrases such as 'it is sufficient if [the accused] raise a doubt', ought not to be used in a summing up, as it is likely to mislead. In my opinion it ought not to be used by a magistrate in his statement of findings. The use of such a phrase in this case has, as Maguire, J. said in Daren's case, provided 'a semblance of substance to an appeal which is in fact without substance and for this reason such language should be avoided.'"

44. In our judgment, this passage disposes of the complaint that the judge might have made error as to the prosecution's burden of proof.

45. There is nothing in the Reasons for Verdict, read in its proper context, which indicates that the judge had not considered all the evidence, that adduced by the prosecution as well as the defence, before he made his findings of fact. It is perhaps unfortunate that he gave the heading "Findings on prosecution case" to his statement of findings of fact. It is also a matter for comment that he should, after his "Findings on prosecution case," went on to state the "Defence case." But it is clear that his verdicts were based on a consideration of all the evidence from both the prosecution and defence.

46. As to the sentence "I find D2's evidence was entirely unconvincing even on the balance of probabilities", it is, we agree, somewhat difficult to understand what the judge meant by the last phrase. The only sensible meaning that one could give this sentence is that A2's evidence was so "entirely" unbelievable, a finding of guilt was inevitable.

47. A2's grounds of appeal fail.

48. For the reasons given above, we dismissed the two applicants' applications for leave to appeal against conviction.

49. A1 also seeks leave to appeal against sentences.

50. It was a vicious and unprovoked attack. Very serious injuries were caused.

51. The sentences were proper.

52. We accordingly dismissed the application.