HKSAR v. YEUNG YU FUNG

cacc 229/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

CRIMINAL APPEAL NO. 229 OF 2005

(ON APPEAL FROM DCCC 1272 OF 2004)

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DECISION

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1. The Applicant has applied for leave to appeal against conviction. He (D2) had been charged with a single count of attempting to wound or to cause grievous bodily harm with intent, the particulars of offence being that he (together with 3 other persons) had at about 1:00 a.m. on 7 October 2004 attempted to wound 7 persons at a park in Kowloon.

2. The prosecution case was that 4 masked men, some wearing baseball caps, had run brandishing knives towards the group of 7. Some police officers were patrolling in the vicinity and 2 officers chased after 3 men who then stopped a double-decker bus and boarded it. PW 4 (one of the police officers) said he saw one of the men stay on the lower deck and the other 2 go up onto the upper deck.

3. The police officers stopped the bus immediately and boarded it. There were a number of passengers on the lower deck. When police reinforcements arrived, a knife and mask were found on the lower deck and 1 person (D1) was arrested.

4. On the upper deck, there were only 2 men - the Applicant and D3. Both were said to have been panting and sweating. A knife and sheath and 2 masks were found on the upper deck. D3 and the Applicant were arrested.

5. D1 and D3 were identified by some persons in the group of 7 as their attempted attackers but the Applicant was not. The police officers were also unable to identify the Applicant as one of the persons they chased by physical characteristics or by clothing. There was no evidence linking the knives, sheaths or masks to the Applicant.

6. The Applicant has submitted in his grounds of appeal that there was no identification evidence in the form of physical characteristics, or clothing and there was no identification parade.

7. That is correct. However the judge found the Applicant guilty on the basis of 2 findings: (i) the first finding was that of the 3 attackers who had run onto the bus, PW4 said he saw 2 had gone up to the upper deck, and the Applicant and D3 were the only male passengers on the upper deck (some women passengers having moved down to the lower deck); (ii) the second finding was that the Applicant was sweating and panting on the air-conditioned bus when the police searched it.

8. Had there not been evidence regarding the first finding, there may have been something in the application for leave to appeal.  But the first finding is significant.  Before me today, the Applicant said that he had or might have run onto the bus from somewhere else, not from the park.  But he did not give evidence at trial and PW4’s evidence was accepted by the trial judge. Accordingly, I can see no arguable ground in the application and I refuse the application for leave.

9. I remind the Applicant that he is entitled to renew his application for leave to appeal to the Court of Appeal but the effect of my refusal of leave today is that the Court of Appeal would be free to direct, if it considers appropriate, loss of time, i.e. that the time during which he is in custody pending the determination of the appeal shall not be reckoned as part of the term of sentence.