HKSAR v. CHUNG SIU TAI

CACC 320/2017

[2018] HKCA 650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 320 OF 2017

(ON APPEAL FROM DCCC 1208 OF 1994)

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REASONS FOR JUDGMENT

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1.  The applicant was tried in the District Court on a Charge Sheet containing two charges of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, Cap 212. Both these offences occurred on the same day namely, 25 May 1994, and were alleged to have been committed jointly with two others persons against two separate victims.

2.  The applicant pleaded not guilty to these two offense and was tried before District Judge Chua (“the judge”).  The trial commenced on 26 September 1995 and was ultimately adjourned for verdict to 4 October 1995.  However, on 3 October 1995 the applicant departed Hong Kong for Thailand and did not return, with the consequence that on 4 October 1995 he did not attend court, thereby breaching the condition of his bail.  A warrant was thereupon issued for his arrest.  He was convicted in absentia and sentenced to 2½ years’ imprisonment.

3.  He was finally intercepted by the police in Japan on 5 June 2017 and handed over to Hong Kong police the next day. 

4.  When taken to court on 8 June 2017 he commenced serving the sentence that had been imposed on him back in 1995. He had been a wanted fugitive for 22 years.

5.  On 4 October 2017 the applicant applied out of time for leave to appeal his conviction.  In support of his application he filed an affirmation explaining that his lateness in appealing was due to the fact that he failed to surrender to the court on 4 October 1995 in compliance with his bail condition and that he was subsequently intercepted in Japan and returned to Hong Kong on 6 June 2017.  In his affirmation he asserts that he has been advised by his solicitors that he has meritorious grounds of appeal for which he was granted legal aid to appeal on 15 November 2017. 

6.  At the hearing of the application I refused it and said I would hand down my reasons for doing so in due course.  These are my reasons.

The legal position of an absconder appealing out of time

7.  An absconding applicant who is out of time for his appeal is in a different position from other applicants for leave to appeal.  I take the legal principles relevant to such an applicantto be those set out by Kwan JA in HKSAR v Bernhard Goetzman[1].  In this case, Kwan JA referred to the relevant legal authorities and distilled from them, at paragraph 21 of her judgment, the following principle:

“… To justify an extension of time in this situation, the applicant must show exceptionally strong grounds why he should be let back into the criminal process despite his earlier choice to reject the process in jumping bail. And as the only grounds urged on his behalf were the merits of his intended appeal, we would examine the merits of those grounds before arriving at the conclusion whether extension of time should be refused in this instance.”

8.  It is not disputed that this comment represents the legal position of the applicantand it is this statement of principle that guided me in the decision I made to refuse the applicant the extension of time that he needs in order to pursue his application for leave to appeal. 

9.  The first thing that should be mentioned is that no attempt has been made by the applicant to justify his absconding.  As Kwan JA said in the Bernhard Goetzman case:

“It will only be in very rare cases that there could be an acceptable explanation for absconding.”

10.  It therefore follows that it is unnecessary for me to address whether or not the applicant can satisfactorily explain the delay in appealing, as clearly he cannot and, equally clearly, he does not seek to do so.  The only issue is whether or not the applicanthas grounds of appeal which meet the threshold of being “exceptionally strong grounds”.  In order to determine this I have to assess the merits of his proposed grounds of appeal.

The circumstances of the offence

11.  Very briefly, each of the two victims in the two offences were set upon by a group of about ten men.  There was no dispute at trial that the victims had been chased and attacked with beef knives and as a result had suffered injuries which amounted to grievous bodily harm.  The only issue was whether the applicant was a participant in this joint enterprise crime. 

12.  An important part of the context is that neither of the victims could identify the applicant and his co-accuseds as being their assailants.  The only evidence establishing that the applicant was involved in the attack upon the victims came from police officers who happened to be patrolling in the vicinity.  In respect of the applicant, that evidence came from PW3 who observed the attack and PW4 who gave chase to, and arrested, the applicant.  

The Perfected Grounds of Appeal Against Conviction

13.  The Perfected Grounds of Appeal are that the judge erred in:

(i)   accepting the identification evidence of PW3 and being satisfied by it that the applicant was involved in the attack notwithstanding the factual deficiencies existing in the quality of PW3’s identification evidence;

(ii)   failing to properly direct herself on the legal principles relating to identification evidence;

(iii)   inferring from the evidence that the applicant was part of the joint enterprise attack; and

(iv)   failing to give sufficient weight to certain aspects of the prosecution case favourable to the applicant.

Discussion

14.  There is no doubt that the judge did not direct herself in accordance with the legal principles of Turnbull[2].  The issue is whether or not in relation to this particular applicant, and the evidence that was adduced in respect of him, she was required to do so.  This brings into sharp focus the question of what evidence there was that implicated this applicant and makes it necessary to examine the evidence that linked the applicant to the attack.

15.  It is apparent from the evidence that this was not an identification case.  The police officer who observed the attack was PW3 at trial.  It was his evidence that, after witnessing the attack upon the victims, he chased after the perpetrator.  PW4 was ahead of PW3 and he joined in the chase and it was he who caught the person whom PW3 was pursuing. PW3 saw the applicant being arrested by PW4.  There is no evidence that PW3 ever lost sight of the perpetrator from the moment he observed him attacking the victims to the time he observed this person being arrested by PW4. 

16.  In this situation there is no need for a Turnbull direction as there is no reliance upon identification evidence.  PW3 was simply saying he saw a person attacking the victim, he chased after that person and he saw that person arrested by PW4.  PW4 gave evidence that it was he who arrested this person and it was not disputed that the applicant was the person arrested by PW4.  It follows, as a matter of logic, and not of identification by PW3, that the applicant was the person whom PW3 observed attacking the victim.  Indeed, without such a logical conclusion there was no evidence to link the applicant to the attack as PW3 very frankly admitted at trial that he could not then identify the applicant as being the person he saw at the scene of the attack.  

17.  The other grounds of appeal do not come anywhere near the level of being “exceptionally strong” grounds of appeal.  They all rely upon the assessment by the judge of the evidence and whether or not she gave sufficient weight to various parts of it.  After having read the judge’s Reasons for Verdict it is clear that she was aware of the deficiencies of the prosecution case and took account of those matters that were favourable to the defendant. This included evidence from the victims, both of whom were unable to identify their assailants and one of whom asserted that none of the defendants in court were his assailants.  The judge explained why, notwithstanding this evidence, she was able to conclude that the applicant was a party to this joint enterprise crime.  I can detect nothing in the judge’s reasoning which would found an “exceptionally strong” ground of appeal.

18.  The applicant, not having met the high threshold of “exceptionally strong” grounds of appeal, is not entitled to an extension of time in order to appeal his conviction.

Conclusion

19.  For these reasons I refused the application.