HKSAR v. LAM TO KWAI

CACC 514/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 514 OF 1999

(ON APPEAL FROM DCCC NO. 514 OF 1999)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. The applicants, LAM To-kwai (D1 at the trial) and CHENG Ming-kit (D2 at the trial), were convicted after trial before Judge Toh in the District Court of one charge of wounding with intent contrary to s.17 of the Offences Against the Person Ordinance, Cap. 212. Each was sentenced to a term of imprisonment for four years. Both of them filed notices of appeal against their conviction and sentence. By notices of abandonment dated 17 June 2000, the 2nd applicant, Cheng Ming-kit, abandoned his application altogether whilst the 1st applicant abandoned his application for leave to appeal against sentence. We are now only concerned with the 1st applicant's application for leave to appeal against conviction.

2. The prosecution case was that in the evening of 29 April, 1999, the victim who was PW1 at the trial was invited by the 2nd applicant to go to the Fujian community clubhouse which was about ten metres away from the noodle shop of the victim's mother. On arrival, he saw seven to eight persons already gathered there. Some of them were personally known to him and most of the rest were persons whom he had seen before. The victim was familiar with the premises and its interior. The lights were on at the time and he was able to see clearly. After the victim had rejected a demand for money from the 2nd applicant, he was attacked by members of the group gathered in the clubhouse. As a result of the attack, the victim suffered a 7 cm laceration to his scalp and multiple bruises and abrasions to his torso and upper and lower limbs. He was detained in hospital for 7 days and was discharged on 5 May 1999. On 4 May 1999, the victim attended an Identification Parade at Tsuen Wan Police Station and identified both applicants.

3. The applicants were intercepted by the police shortly after the attack while running out of a lane located at the rear of the premises where the attack took place. They were arrested and cautioned. Both of them denied hitting anyone but admitted that they were present at the scene to mediate the dispute. It was also an admitted fact that the victim's blood was found on the two applicants' clothing which they were wearing when intercepted and arrested by the police. In his first cautioned statement, the 1st applicant said that it was the victim and the 2nd applicant who quarrelled and started a fight and he went to mediate. Someone had broken the victim's head. In his second statement, he said it was a man called Ah So who hit the victim.

4. The 1st applicant elected not to give evidence.

5. The evidence against the 1st applicant principally came from the victim. The main ground of appeal relates to the evidence relating to the identification and it was further contended that the judge had failed to warn herself in terms of R v Turnbull [1977] QB 224. In her Reasons for Verdict, the judge considered and evaluated the evidence. She also bore in mind the discrepancies and in particular the conflict between the two witness statements made by the victim to the police. She set out her findings in some detail in her Reasons for Verdict. At p.16 I-K of the transcript, she said :

" Mr Cou subsequently identified the 1st and 2nd defendants and said the 1st defendant was the one who had hit him with a chair, which was similar to Exhibit P3, at the time of the assault, causing the bruise on his back, which can be seen in photos 3 and 4 in Exhibit P2. He said he had seen the 1st defendant before in his mother's noodle shop when he went there as a customer."

The judge continued at p.17 R-T and p.18 A-Q :

" He agreed he had given more detail in court about the incident than in his statement. And he said that on ordinary days he could not remember but sometimes he would dream of the details and that when he saw the 1st defendant at the identification parade, everything came back to him in a rush. He described the others present at the time, apart from the 2nd defendant, YEUNG Ying, the 1st defendant, there was a 1.8 metre tall, strong man in his 30s, with a crew cut that he has never seen before and another man as a tall, thin and dark man."

She then continued from E-K :

" Under cross-examination by Mr WAN, he agreed that in his first statement to the police made on 29 April in hospital, he had failed to mention the 1st defendant, hitting him with a chair, or that the 1st defendant was present at all, but he said he was groggy from painkillers at the time. In the second statement made on 3 May when giving his description of the 1st defendant, he said he had mixed up the 1st defendant with the big and strong man with the crew cut. He had seen the 1st defendant at his noodle shop before 29 April as a customer, though he did not know the 1st defendant's name, and he agreed that when he described the 1st defendant to the police, he did not know if he had assaulted him at that time because he did not remember."

She then dealt with the statement of the applicant to the police at p.19 H-Q :

" Now I come to the records of interview which have been produced by the prosecution. P8 is the first record of interview taken from the 1st defendant on 29 April at 2235 hours. And in there the 1st defendant said that it was Cou Ming and the 2nd defendant who quarrelled and started a fight and that he had gone to mediate and someone had broken Cou Ming's head.

But in his second record of interview taken on 30 April at 2.53 pm, he changed his story to say that the fight was between Cou Ming and Ah So, and that Ah So was 1.7 metres tall, thin and with a crew cut. He said that it was the 2nd defendant who quarrelled with PW1 at the beginning, then Ah So joined in and struck PW1."

6. It is clear from the passages, the judge had examined the evidence of the victim carefully and critically. She concluded at p.22 P-T and p.23 A-H :

" I have to look at the evidence as a whole, and having done so, see no merit in the defence submission that when he said that he dreamt some details therefore what he said in court must be part of that dream, that is certainly not his evidence. He was very careful to point out that he does not remember certain detail and can only tell of the events roughly. He was careful when telling of the newspaper-wrapped object, which he assumed was a knife, that he could not actually see it, but saw the glint of the metal as it was raised over him, because at that time his glasses had fallen off. I found him totally believable.

He did neglect to mention the 1st defendant in his first statement made on the same day of the attack, and in his second statement he had mixed up his description of the 1st defendant and the big, strong man. As he had explained how it came about, I am not surprised, for although he was to be discharged the following day, he must have been still feeling the effect of the injury and his experience. As he said in court, he never expected to be hit on that day in this way because he and the 2nd defendant were clansmen. And the prosecution agrees it was a very tightly knit community in the Fujianese community in Tsuen Wan."

And she finally concluded at p.24 G-H in her Reason for Verdict :

"I have found on the facts, I believe PW1 and I also believe that the 1st defendant was there and did use a chair similar to P3 to hit PW1 on his back."

7. It is plain from the Judge's findings that she accepted the evidence of the victim and relied on that evidence to conclude that the applicant was one of the men who attacked the victim and not an innocent bystander to mediate the dispute. In our view, this is not a truly Turnbull situation that calls for a direction along the lines enunciated in that case. It was not a case of identification of a stranger in a fleeting glance. It was the recognition of someone whom the victim had known and seen before. The 1st applicant admitted his presence at the scene at the time of the attack but his role was a mediator instead of an attacker. The only question was whether the victim had mistaken him to be an attacker and not his presence or features or appearance. The victim was sure of the 1st applicant's role and his evidence was accepted by the judge.

8. Moreover, the applicant was intercepted by the police shortly afterwards when he was running out of a lane located at the rear of the premises where the incident took place. There was also evidence of the victim's blood found on the applicant's clothing which, as Mr Chapman describes it in his helpful written submission, was cogent circumstantial evidence which went a significant way to eliminating any mistaken identification on the part of the victim.

9. The judge, in our view, had considered all the evidence with care before she accepted the evidence of the victim. The case of the applicant all along was that he was present at the scene as a mediator and that was rejected by the judge. After having rejected the defence case and accepted the evidence of the victim, there was only one conclusion to be left for the judge to draw.

10. In the circumstances of the case and having regard to the evidence, we are satisfied that the judge was entitled to the conclusion that she has drawn. We are in no doubt that the judge had in her mind all the time the identity of the applicant as the trial was focussed entirely on the roles played by the two applicants. In our view, this is a case of credibility of the witnesses and not a case of identification involving the features or appearance of the attacker as such.

11. We reject the argument advanced by Mr Ross on behalf of the applicant. The conviction is neither unsafe nor unsatisfactory and it does not cause us any anxiety. The application is dismissed.