R. v. CHAN YUK WAI

IN THE COURT OF APPEAL

No. 211 of 1995
(Criminal)

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J U D G M E N T

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Keith, J. (giving the judgment of the Court):

1. On 27th February 1995, the Applicant was convicted by Judge Britton in the District Court of wounding with intent contrary to Section 17 of the Offences Against the Person Ordinance (Cap. 212). He had pleaded not guilty. He was sentenced to three years' imprisonment. He now applies for leave to appeal against his conviction.

2. The victim of the wounding was PW1. There was no dispute that PW1 had been unlawfully and maliciously wounded. He had been stabbed eight times with a knife or knives. Nor was it disputed that the Applicant had taken part in the attack on PW1. The Applicant's case was that he had not used the knife himself, and had not known that a weapon of any kind was going to be used.

3. His evidence was that he had met two friends of his by chance, and had gone with them to a shopping mall in Tsuen Wan. While they were there, one of the Applicant's friends said that he recognised someone with whom he had had a row some time earlier, and he asked the Applicant to join in beating the man up. The Applicant agreed, and the three of them went to a store on another floor of the mall where the Applicant was told to wait outside while his two friends went into the store. When they came out, the three of them went to a games arcade where the man who they were going to attack was. The Applicant stood behind the man, and the other two stood either side of him. They all started punching the man together. The Applicant said that he punched the man three times. He then saw his two friends produce a knife each. His evidence was that that was the first time that he knew that weapons were to be used. He stepped back, and the man ran off chased by the Applicant's two friends. The Applicant said that he stood where he was for a moment because he was scared. He then ran out of the arcade and down an escalator, where he was stopped by a security officer.

4. The evidence which implicated the Applicant in the attack did not come from PW1. PW1 said that he was attacked by three or four youths, at least two of whom had knives, but he did not know them and he could not describe them. The judge found that that was hardly surprising, given the fact that PW1 was concentrating on defending himself. PW1 said that he had first been attacked in the arcade itself, that he had run as far as the entrance to the arcade, but had felt weak and had fallen to a squatting position, and that the men who attacked him in the arcade came up to him at the entrance of the arcade and resumed their attack on him.

5. The evidence which did implicate the Applicant in the attack came from PW8, a friend of PW1, who had gone with PW1 to the arcade. PW8 was standing a short distance away from PW1 when PW1 was first attacked. He only noticed two assailants, though he did not at that stage see either of their faces. He went over to help PW1 and kicked one of the assailants. That was when he glimpsed one of the assailants holding a knife, though he could not say which of the assailants that was. He pulled PW1 away and he went out of the arcade. He did not realise that PW1 had collapsed at the entrance to the arcade, but when he was what the judge estimated to be about 150 feet from the arcade, he turned round and saw PW1 on the ground being attacked by two men who had their backs to PW8. One of them was holding a knife and stabbing PW1, while the other was punching PW1. PW8 said that he shouted at the men to stop the attack, at which point the men went towards an escalator. PW8 went towards the escalator himself, and when he was about 30 feet away from the men, PW8 said that he got a clear view of the face of the man who he had seen holding the knife with no one and nothing to obstruct his view. That was the first time he had seen the man's face. Three days later, PW8 picked out the Applicant in an identification parade as having been one of the two men who had attacked PW1.

6. The judge found that PW8 was an accurate and truthful witness. In reaching that conclusion, he took account of PW8's previous convictions, and he gave himself a full Turnbull direction. The judge himself went on a view of the mall, and he concluded that PW8 "was perfectly capable of seeing what he said he saw". In these circumstances, and having read carefully the Reasons for Verdict, we think that the judge's finding that the Applicant was one of the two men who PW8 had seen stabbing and punching the Applicant at the entrance to the arcade is unassailable.

7. Although the judge was sure that a knife had been used in the attack, he could not be sure whether it was the Applicant himself who had used a knife. However, he noted that the Applicant himself had admitted in his evidence that he saw his two friends with knives inside the arcade. In view of the judge's finding that the Applicant had taken part in the attack on PW1 at the entrance to the arcade, that meant that the Applicant had done so knowing that his friend was using a knife. That conclusion is also unassailable. On that footing, the judge in our view cannot be faulted for concluding that the Applicant was a party to a joint enterprise, the scope of which was intended to cause serious bodily harm to PW1. That was the only inference to be drawn from the primary facts which the judge found proved.

8. However, the judge went further than that. He found as a fact that the Applicant knew before the start of the attack in the arcade that his friend was armed with a knife. What the judge said was this:

"I am also asked to believe that the defendant's two friends kept him in the dark whilst they went and, presumably, bought knives in [the store which the defendant did not go into] and equally kept him in the dark about their intentions to stab the victim whilst leading him to believe it was to be a fist fight, all the time knowing that the stabbing would come as a complete surprise to the defendant. They knew he knew them, could identify them and tell the police where they could be found. They would have no guarantee that a horrified defendant would not lead the police straight to them. If the defendant be right they were leaving themselves complete hostages to fortune for no apparent reason. I do not believe it for one moment."

That was a conclusion which the judge was entirely entitled to reach. In those circumstances, the judge's finding that the Applicant knew before the start of the attack in the arcade that his friend was armed with a knife which was going to be used in the attack on PW1 cannot be faulted. It meant that the judge's conclusion that the Applicant was a party to a joint enterprise, the scope of which was intended to cause PW1 serious bodily injury, is all the more unassailable.

9. For these reasons, this application for leave to appeal against conviction must be refused, but before we depart from this case, we wish to pay tribute to the judge's Reasons for Verdict. They set out clearly and succinctly the evidence which was relevant to the issues which the judge had to decide, they contain a careful and painstaking analysis of that evidence, and they spell out impeccably the directions which the judge correctly gave himself. They are, in short, a model of their kind.