HKSAR v. LAW CHIN MAN

CACC 347/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 347 OF 2003

(ON APPEAL FROM DCCC NO. 223 OF 2003)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against conviction. On 8 August 2003 the applicant was convicted by Judge Chua in the District Court of the offence of wounding with intent contrary to section 17(a) of the Offences Against The Person Ordinance Cap 212. The offence was alleged to have taken place on 13 September 2002 outside a games centre in Tuen Mun, and the applicant was alleged to have wounded Wong Chi-sing with intent to do him grievous bodily harm.

2. It is unnecessary for the purpose of this judgment to address the detail of the conflicting accounts. In essence, the complainant's account was that he and some friends had been at a games centre where they were the subject of hostile conduct by a member of another group that included the applicant. They walked to a nearby playground and were there rushed at by the applicant's group. The police arrived and eventually the group dispersed. The complainant left with a friend named Chan and was then chased, and he and Chan split directions and the complainant was cornered in a subway by the opposing group coming at him from two directions and he was assaulted with a metal pipe which was wielded by the applicant.

3. The applicant's defence at trial was that whilst there had been unpleasantness, the complainant's group was the aggressor; and whilst it was not disputed that the applicant had been severely assaulted, it was said that he, the applicant, had left the scene before that assault took place and had gone home. He called a number of witnesses in support of that alibi.

4. The complainant suffered severe injuries. He became unconscious soon after the beating. The applicant was sentenced to a term of five years' imprisonment but there is no application in relation to sentence.

5. The issue at trial was that of identification of the applicant, whether the complainant had correctly identified him as his assailant. The applicant and the complainant were well known to each other and had been acquaintances for over ten years including a period at school. The complainant identified the applicant at an identification parade some weeks after the assault.

6. In relatively detailed Reasons for Verdict, the judge correctly described the key issue as one of identification, for there was no doubt but the complainant had been badly beaten, and that that beating had occurred not long after the two groups had been at the games centre. The judge addressed the testimony of each witness, provided reasons why she did not believe the witnesses for the defence and why she accepted the evidence of the complainant, and in particular said that she was satisfied that his identification of the applicant as the man who had struck the complainant on the head with a water pipe was accurate. Accordingly, she convicted the applicant of the charge, and sentenced him to a term of five years' imprisonment.

7. There are two grounds of appeal, drawn by Mr de Boinville who appears for the applicant today and has adopted his written submissions, and has added oral argument before us.

Ground 1: Assessing the evidence

8. The first is that the judge erred in convicting the applicant and several particulars are provided.

9. It is said, first, that the judge failed to have adequate regard to such inconsistencies between the testimony of the complainant and what he said to the police when interviewed. It is argued in this regard that the complainant's memory of what happened and of how many people there were shortly before and when he was attacked and who they were, changed substantially from the account that he had given to the police, and that the judge has failed to recognize those disparities and to accord them proper weight.

10. With respect, we do not agree. We think that the suggested disparities are exaggerated and do not take realistic account of the complainant's testimony as a whole and of the circumstances of his statement to the police. The complainant explained in his testimony that by comparison with his evidence in court his statement to the police was short. So, for example, he was asked:

"	Q.	Why didn't you mention Yau Chai to the police at the stage if he was there?
	A.	I didn't mention Yau Chai?
	Q.	No, look at the paragraph. You haven't mentioned him as being there.
	A.	That's true that Yau Chai was not mentioned.
	Q.	Right.
	A.	The reason why I went to the police station to give a statement was because I was attacked. It's to tell them how I was attacked. The police asked me who assaulted me. That's it.
	Q.	But in the earlier part of the statement you're very clear in saying that Yau Chai was the real aggressor in the alleged incident with you in the amusement games centre. Why did you not mention his name as being one of the group of five chasing down that subway?
	A.	Because I - Yau Chai was mentioned earlier in the statement that he was present."

11. This is a perfectly sensible and realistic and acceptable explanation. The judge did not deal with every discrepancy in her Reasons for Verdict, nor was she required to do so. She dealt with some, and it is obvious from a reading of the transcript, especially from the closing submissions of counsel for the applicant at trial and the judge's remarks during them, that she was ever conscious of the points that he made about the disparities.

12. We have to say that reading the testimony as a whole, which is how testimony must be read and not by reference to isolated disparities, that it reads well and does not in our judgment in any of its particulars jar with reality or with the facts which were common ground.

13. Then it is argued that the judge was wrong to accept the identification evidence of the complainant not least because the complainant saw the attackers for only a split second, and it is contended that the judge "from the grounds did not specifically deal with the possibility of mistake". This latter contention is simply not accurate. The penultimate sentence of the Reasons for Verdict was as follows:

"I realise there is no corroboration of PW1's identification, but I am satisfied the quality of the recognition at close range, in good light, with no confusion in the agony of the moment is good, leaving me in no doubt that it can safely be relied on."

14. There could hardly be a more clear recognition of the danger or possibility of mistake. This was not a glance at a person unknown to the complainant. He had known the applicant for a long time, and it is accepted that the applicant was in the company of the complainant shortly before the attack. His testimony was not that he saw the applicant only at the time of the blow but that he had seen him at the entrance to the subway holding a metal bar, and that the applicant and two others approached him and attacked him. We see nothing inherently unsafe in the identification evidence or in the judge's approach to it; and we notice that where the judge had any doubt about the absolute reliability of identification, as she did in the case of the testimony of the witness Chan who was with the complainant when the two were chased towards the subway, she determined not to rely upon it. In this particular regard, it is said in the written argument that the identification evidence of Chan was rejected by the judge. That, with respect, is not quite an accurate way of putting it. She merely thought, given the circumstances in which Chan found himself in relation to the others and the events as they unfolded, that she ought not to rely upon it.

15. It is argued then that the judge was wrong to reject the testimony that one of the applicant's group was attacked by an umbrella, and counsel interprets a passage from the Reasons for Verdict as concluding that the suggested attack was possible. That is not in our judgment what the judge was saying. She made a passing comment, attended with more than a hint of disbelief, as to the suggested cause of an injury which the witness said he had suffered. We have read the evidence of that witness and the cross-examination of him and it is evidence that is in several aspects inherently not credible.

16. It is said that the evidence of a passer by, a young girl allegedly strolling with her dogs, should not have been rejected by the judge and that the judge wrongly concluded that counsel for the applicant did not rely upon her testimony. We do not agree. The young girl gave evidence of an attack she had allegedly witnessed, an attack with the use of bare hands, as opposed to one with water pipes, and therefore an attack of a fundamentally different nature from that described by the complainant; and we think it quite clear that from an exchange between counsel and the judge during counsel's submissions that counsel was, not surprisingly, not relying on the evidence of that witness.

17. We do not purport to deal with each detail or particular of this ground. It suffices to say that nothing in the ground strikes us as carrying merit, and it accordingly fails.

Ground 2: the judge's interventions

18. The second ground of appeal is that there has been a material irregularity by reason of suggested undue intervention by the judge in the course of evidence, thus giving the impression of impartiality. By its nature this ground has required us to read the entire transcript of the trial.

19. We would comment, first, although it does not of course conclude the matter, that counsel who puts forward this contention is not counsel who appeared at trial and whose conduct of the trial is now said to have been stifled or impeded by the judge's interventions. Counsel who appeared at trial is a barrister of over thirty years call and not one likely meekly to proceed without some protest, if warranted, however courteously couched; and apart from one or two occasions where he explains why he wishes to press a question or line, his approach is marked by its lack of any complaint or apparent frustration.

20. Most of the interruptions of which complaint is made are of the testimony of the complainant. The interruptions by the judge of that witness may be said to have been frequent and possibly more frequent than was strictly necessary, and some of the questions of this witness were perhaps premature in the sense that had the judge not asked them when she did they would inevitably have been asked by counsel.

21. But an issue of this kind is always one of the context in which the interruptions occurred and of the nature of the questions and the impression created by them. The context of many of the interruptions of the testimony of the complainant was that of questions directed to ascertaining who was where at different stages of the events of the night in issue. When a tribunal is faced with a case in which identity is the sole issue, and play is made of the number of persons in groups amongst whom the culprit is said to have been one, and the events described move from one location to another and then to yet another, as was the situation in this case, the potential for confusion for the witness and for the tribunal can be substantial. That is what happened in this case, and in our judgment many of the judge's interruptions were designed, not to put down a line of questioning but to make the picture clear to the witness and sometimes for the court. Occasionally the judge took over cross-examination to put a suggested disparity between the evidence and the statement to the police more clearly than counsel, when it was seemed that there was confusion, or misunderstanding, and we see counsel for the applicant at trial accepting the method adopted and indeed resulting in counsel returning to the issue with the witness by saying, to give but one example: "The question that I have and the question that her Honour put to you is why did you not put this down in your statement ...?". (That can be seen at p 85 of the appeal bundle and there is another example to the same effect at pages 68 to 69). On other occasions, the judge checked whether a question had a proper evidential foundation; and at others she had, as she herself expressly said, "lost the thread".

22. In cases where this issue is raised, it is important to see whether the defendant at trial has himself been permitted to give his testimony fully and as he has wished, and we are entirely satisfied that in this case that is exactly what happened. There were some interruptions, but none which undermined his ability to tell his tale or which gave the impression that the judge was entering the arena or intervening unduly in any way.

23. Many of the interruptions originally listed in the grounds of appeal, were as Mr de Boinville now properly concedes, of no consequence whatsoever. There is an additional complaint raised today of interruptions during closing submissions by counsel for the applicant at trial. Had there been any real substance to that complaint, we have no doubt that it would have been particularized in the grounds of appeal which address in fine detail the various objections. In the end, the suggestion is one which rests upon the cumulative effect of the interruptions, the contention being that the effect overall was to undermine the fairness of the trial.

24. We have studied the testimony as a whole, as well as the particular references to which counsel has taken us, and we are satisfied that the applicant was given a fair trial, that the interruptions by the judge did not, either individually or in their cumulative impact, impinge on the fairness of the trial, and that no objective and impartial observer would have considered otherwise.

Conclusion

25. Those being the grounds, in neither of which we find merit, the application for leave to appeal against conviction is accordingly dismissed.