HKSAR v. WONG KIN FAI

CACC 305/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 305 OF 2015

(ON APPEAL FROM DCCC NO. 272 OF 2015)

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REASONS FOR JUDGMENT

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1.  On 30 July 2015, the applicant was convicted after trial in the District Court before Deputy District Judge Ivy Chui of a single count of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212. He was sentenced on 1 September 2015 to 2 years’ imprisonment. The applicant filed a Notice of application for leave to appeal against conviction on 9 September 2015.

2.  The applicant, represented by Mr William Allan, who also appeared for the applicant at his trial, now applies for leave to appeal against his conviction.  On 22 January 2016, I refused leave and said I would hand down my reasons.

The prosecution case

3.  Ms Chan Shing-fong (“PW1”), the victim named in the charge, began a relationship with the applicant in September 2013.  By Christmas 2014, however, their relationship had turned sour.  As a result, PW1 decided to return certain personal belongings, which had been left at her home, to the applicant.  Since the applicant was not at home when she arrived, there was a telephone conversation between PW1 and the applicant, as a result of which she left his belongings on the door handle of the metal gate to the premises.  However, the applicant called PW1 later that evening and queried whether she had really placed the items as she had said she would.  Evidently, something had gone missing.

4.  Then, in the early hours of 2 January 2015, Ms Chan Man-ha (“PW2”), the younger sister of PW1 was contacted by the applicant and invited over to his home. As a result, at some time after 2 am, PW2 and one Wei Lin (the cousin of PW1 and PW2) arrived at the applicant’s home where, among other things, they discussed the breakdown of the applicant’s relationship with PW1.  Wei Lin was not called by the prosecution as a witness for the purpose of the trial.

5.  In the course of the evening, they also consumed a large quantity of alcohol so that, by about 6 am, PW2 had become drunk.  She then telephoned her sister (PW1) and asked her to come to the applicant’s home.  PW2 went to sleep after making the telephone call.

6.  About an hour later, PW1 arrived at the applicant’s home, whereupon he opened the door to let her in.  PW1 saw Wei Lin and PW2 sleeping in a guest room and the master bedroom of the premises respectively.  PW1 then woke her sister up and requested that they leave. However, PW2 told PW1 to apologise to the applicant first, whereupon she promptly fell asleep again.

7.  PW1 testified that after speaking to her sister, she turned around and lost consciousness.  She did not know what happened to her thereafter.  At the time she lost consciousness, there was no other person inside the applicant’s home apart from herself, her younger sister, Wei Lin and the applicant.

8.  The prosecution relied heavily on the evidence of PW2 to establish their case, in particular as to how PW1 suffered such serious injuries in the premises.  According to PW2, after PW1 turned around to leave the master bedroom, she fell asleep again but was awakened by the noise of voices raised in argument.  PW2 therefore came out from the master bedroom where she saw the applicant repeatedly kicking her sister with great force while shouting at her.  PW1 appeared to be unconscious at the time and her head was bleeding profusely.  Both PW2 and Wei Lin (who had by then also woken up) intervened to try and stop the applicant, and eventually succeeded in restraining him.

9.  Since PW1 appeared to be comatose, PW2 dragged her sister out of the applicant’s home to the lift lobby of the building and managed to take her in a lift to the ground floor, where she saw a security guard who reported the matter to the police.  PW1 was in due course conveyed to hospital by ambulance.

10.  It was not disputed that PW1 suffered (i) a 2 cm laceration to the right side of her head; (ii) swelling to her head; (iii) pain, swelling and bruising to the back area of her right chest wall; and (iv) multiple rib fractures and pneumothorax to her right side.  A whole body CT scan revealed that PW1 had (i) fractures over her right 6^th to 12^th ribs with flail segments over the 7^th to 10^th ribs; (ii) a small amount of right hemopneumothorax with chest drain in-situ; and (iii) a liver contusion and a tiny laceration over the posterior aspect of the right upper pole of her kidney with thin subcapsular hematoma.

The defence case

11.  The applicant elected not to give evidence and called no witnesses.  Other than challenges to the effect that PW2’s evidence was incredible and unreliable, the defence case put forward at trial appears to have been that there had been no attack on PW1 by the applicant; or, perhaps, that it had not happened as PW2 described.

12.  As regards PW2’s credibility, the defence emphasised that she was so intoxicated at the time of the attacks that her observation and account would have been highly questionable.

Reasons for verdict

13.  Having extensively evaluated the prosecution evidence, the judge found all prosecution witnesses honest and reliable.  In particular, she accepted PW2’s evidence in its entirety.  In so doing, the judge also addressed the issues raised in Mr Allen’s written submissions of no case to answer (which were subsequently adopted as the defence’s final submissions) and found that:

(a) PW2 was not so intoxicated that she did not know what was going on at the time;

(b) in respect of discrepancies in the testimony of PW2 and any other evidence, there was no significant discrepancy such as to cast doubt on her credibility;

(c)  wherever PW1’s account, which the defence did not challenge, differed from PW2’s account, PW2’s evidence was to be preferred;

(d) PW2 had not fabricated her evidence, nor was there anything inherently improbable or incredible about it.

14.  The judge also addressed the issue that the police photographs showed no blood stains on the floor of the living room where the attack had allegedly taken place, nor were there any blood stains on the applicant’s clothing.  She noted, however, that PW1 and PW2 were seen on the CCTV footage entering the lift at about 8:25 am.  The premises were not entered again until a fire officer entered the premises by force at 10:47 am, after which the photographs of the scene were taken by a police photographer.

15.  The judge was satisfied that PW1’s injuries described in the two medical reports were caused by the applicant’s attacks upon her.  Accordingly, she convicted him of the charge.

Grounds of appeal against conviction

16.  Mr Allan has advanced three grounds of appeal on behalf of the applicant, and essentially submits that the judge did not properly consider the following aspects of the evidence:

(a) the discrepancies between PW1’s and PW2’s testimony on several important issues (Ground 1);

(b) the inconsistencies and conflicts within PW2’s own evidence (Ground 2);

(c) the conflicts between PW2’s evidence and her police witness statement (Ground 3).

17.  A fourth matter has been advanced, which perhaps comes within para 16(b) supra, concerning PW2’s affirmative answer to a suggestion put to her in cross-examination, namely “my client (the applicant) never kicked your sister (PW1) in the manner that you have described”[1].  Mr Allan submits that at the very least, this answer shows the type of inconsistent witness PW2 was: at best, it exonerates the applicant.

18.  In relation to Ground 1, Mr Allan points to the following discrepancies between PW1 and PW2’s evidence, which he suggests are significant:

(i) PW2 testified that PW1 and her son were threatened by the applicant[2]; yet, PW1 gave no such evidence.  Counsel made the further point that the applicant would have been unlikely to have made such a threat, given the tenor of PW2’s other evidence, in particular, that shecould see“that he (the applicant) was nice to my elder sister (PW1)”[3];

(ii) Whilst it was clear from the evidence of PW1[4] that PW2 was drunk when making the telephone call to PW1 at around 6 am on 2 January 2015, it seemed to be PW2’s evidence that she was not so drunk[5]; and

(iii) As to what actually happened in the premises, the evidence of PW2 was completely different from that of PW1, notwithstanding that it was not suggested by PW1 that she had any loss of memory or confusion in relation to those events which occurred before she lost consciousness.  Although PW2 claimed that the attack took place after PW2 woke up for the second time, PW1 did not say that PW2 had gone back to sleep while she was in the premises[6].

19.  Ground 2 is essentially a repetition of Ground 1, so far as the sub-point in paragraph 18(i) supra is concerned.  Mr Allan argues that under cross-examination, PW2 changed her evidence in the sense that, having initially claimed that the applicant had threatened PW1 and PW1’s son, she retracted her position by affirming that she did not tell PW1 about the threat and, further, that she (PW2) could not recall if she had spoken to PW1 about the threat[7]. Counsel further submitted that the change in PW2’s evidence indicated that she was capable of changing her evidence against the applicant as she saw fit.

20.  The complaint under Ground 3 is that the versions given by PW2 in her witness statement were inconsistent with her evidence in court.  One particular matter was that in para 13 of her witness statement, PW2 said that she told the police at the security guard station that PW1 was conscious and in pain; yet testified in court that PW1 was unconscious and in a coma[8].  Under this ground, Mr Allan also repeated his submission that PW1 and PW2’s evidence could not be reconciled so far as what happened and what was said inside the applicant’s home[9].

21.  What I have characterised as the fourth matter raised in the perfected grounds of appeal, although it relates more to Ground 2 than to Ground 3, is the answer given by PW2 at the end of her cross-examination, where she appeared to resile from her earlier evidence and to confirm that the applicant had never kicked PW1 in the manner she had originally described.  Mr Allan submits that PW2 did not misunderstand the question, which was entirely clear, and her answer stood despite subsequent re-examination.

The respondent’s submissions

22.  Mr Edward Brook SPP, for the respondent, submits that the judge was wholly alive to the fact that the case turned on the credibility of PW2 and gave detailed reasons as to why she found PW2 honest and reliable.  He argues that the judge properly directed her mind to, and specifically dealt with, the weaknesses of PW2’s evidence, such as they were.  He further contends that the grounds of appeal now put forward by the applicant were effectively the same submissions made in the trial below and duly considered by the judge.

23.  Given that no one else was ever alleged to have inflicted PW1’s injuries, Mr Brook submits that the evidence that the injuries were caused by the applicant was overwhelming, and there are no reasonable grounds of appeal against conviction.

Consideration

24.  This is an appeal entirely on fact, in which the trial judge had a considerable advantage over any appellate court.  For that reason, her assessment of the evidence and witnesses is entitled to significant recognition.  An appellate court will normally only interfere in relation to findings of fact or the assessment of witnesses if it can be shown that a judge has made findings which either ignore or are in defiance of the actual evidence on an important issue in the case, so as to demonstrate that the evidence has been misread or misunderstood, or if a judge has failed to deal with an obvious and significant matter of evidence which cried out for evaluation because of its necessary implication for, and impact on, the conviction.  In those circumstances, it may be said that an appellate court will interfere because the court’s findings are such that no reasonable tribunal properly applying its mind to the evidence could have made them.

25.  Mr Allen acknowledges that the judge has dealt with most of the significant issues which were clearly raised both in his written submission of no case to answer and in his closing address in the trial below.  He has, however, raised two issues which he says were not dealt with at all by the judge: first, the difference in the versions of PW1 and PW2 as to what happened and what was said in the 6 am telephone call; secondly, the issue of the alleged threat made by the applicant to PW1 (referred to in para’s 18(i) and 19 supra).  However, I do not think that by themselves they are significant issues, nor is a judge expected to deal with every single point raised in his/her Reasons for Verdict.  These were not matters which called for specific evaluation or which ultimately could have had any significant effect on the judge’s overall findings of credibility.

26.  That effectively left Mr Allen to argue that the judge’s evaluation was faulty in view of the various issues he raised which cast doubt on PW2’s veracity, and that no reasonable tribunal could have come to the decision it did on the available evidence.  That is, as counsel acknowledges, a difficult hurdle in any factual appeal.

27.  I regret to say that I can see no reasonably arguable ground of appeal that the judge’s otherwise careful and thorough analysis of the evidence has led her to a decision to which she could not properly have come on that evidence.  It must be remembered that the applicant elected not to give evidence.  That, of course, was his right and did nothing to establish his guilt, but it did mean there was no evidence from him to undermine, contradict or explain the evidence called by the prosecution.  Given that there were only three people in the applicant’s home who could have inflicted the injuries on PW1, and given that it was never suggested that PW1, PW2 or Wei Lin had caused those injuries, it is perhaps surprising that nothing was forthcoming from the applicant.  That perhaps explains why Mr Allen put the question, which I have characterised as the fourth matter, in the way that he did.

28.  The question was in these terms[10]:

“Q. I put it to you, madam, that my client never kicked your sister in the manner that you’ve described. Agree or disagree?

A. Agree.

Q. You agree.” (Emphasis supplied)

The question was in fact somewhat ambiguous in the case it was putting to the witness.  Did it mean (i) that the applicant never kicked PW1 at all; or did it suggest (ii) that it was not done in the way PW2 described?  In any event, after the court expressed its concern as to whether the witness had understood the question, which enquiry was interrupted by a discussion about the answer between the judge, defence counsel and prosecuting counsel, the matter was simply left where it was until taken up in re-examination.

29.  It became apparent when the witness was re-examined by prosecuting counsel that she had indeed misunderstood the question; not surprisingly, perhaps, since this was her second day in the witness box, and, indeed, the second day of a lengthy cross-examination.  When asked by prosecuting counsel about her previous answer, she said[11]:

“I haven’t seen such thing happen before this incident. How do I know what he was asking me?”

Whether, and if so how, the witness misunderstood the question was a matter for the judge as tribunal of fact in evaluating the evidence.  As might be expected, the judge specifically addressed this particular point in her Reasons for Verdict and found that what the witness meant, as indeed she said she had meant, was that she had never seen the applicant kicking her sister in the manner she described before the incident[12].  I can see no arguable ground of appeal that the judge was wrong in her evaluation of this particular evidence.

Conclusion

30.  On a thorough review of the transcripts of evidence, and the submissions of the applicant, I can see no arguable grounds of appeal against conviction in this matter.  I should make clear that I have dealt with the more significant matters advanced before me both orally and in writing, and the fact that I have not seen fit to address each single matter raised in the applicant’s written submissions does not mean that I have not considered whether it might, by itself or in combination with others, generate an arguable ground of appeal.

31.  For the above reasons, I have refused the application for leave to appeal against conviction.

[1] Transcript of evidence of PW2, Appeal Bundle, p 126A-B.

[2] Transcript of evidence of PW2, Appeal Bundle, p 82K-L.

[3] Transcript of evidence of PW2, Appeal Bundle, p 101E-K.

[4] Transcript of evidence of PW1, Appeal Bundle, p 49N-Q; 61D-G; 62E-K.

[5] Perfected Grounds of Appeal, paragraph 1(c) and Transcript of evidence of PW1, Appeal bundle, p 76Q-T; 77A-J.

[6] Applicant’s submissions, paragraphs 14-19.

[7] Transcript of evidence of PW2, Appeal Bundle p 88I-L; 89A-P.

[8] Perfected Grounds of Appeal, paragraph 3(c).

[9] Applicant’s submissions, paragraph 27.

[10] Transcript of evidence of PW2, Appeal Bundle, p 126A-B

[11] Transcript of evidence of PW2, Appeal Bundle, p 127N-O

[12] Appeal Bundle, p 26F-G