HKSAR v. CHOI KAR-LEUNG

CACC 277/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 277 OF 2001

(ON APPEAL FROM DCCC 80 OF 2001)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 20 July 2001, the Applicant was convicted of riot following a trial in the District Court before Deputy Judge Mackintosh. He now seeks leave to appeal against conviction on the ground, as he put it in his home-made written grounds, that he was "absolutely innocent". He also stated in those grounds that when the incident occurred, he had been admitted to the hospital in the Hei Ling Chau Drug Addiction Treatment Centre (the Centre) because of injuries he received when he was assaulted by Vietnamese inmates.

2. In court today, he elaborated on his grounds. Amongst the points he made, he said that at the material time he was "injured and unable to move".

3. At the time of the riot, there were more than 400 inmates accommodated in the dormitories at the Centre. Of these, some inmates were Vietnamese. Shortly before 7.00 p.m., it seems that a group of about half a dozen Vietnamese inmates attacked and injured the Applicant in the vicinity of a dining hall at the Centre. This was followed by scuffles amongst inmates. The fight escalated and eventually led to rioting by some of the local inmates outside dormitory 11. Some of the buildings and facilities at the Centre, run by the Correctional Services Department (CSD), were destroyed and set on fire.

4. The Applicant was alleged to have been amongst a group of inmates who, close to the administration block, partially blocked the roadway with liquid petroleum gas (LPG) cylinders. The valves on some of the cylinders had been opened. The Applicant was armed with a blade taken from a pair of horticultural shears. He was seen to be acting aggressively towards the Vietnamese inmates and eventually towards CSD officers and the police.

5. The Applicant was represented at trial. He gave evidence on his own behalf. His defence was that he was injured in the initial attack on him by Vietnamese inmates and, following that, he had spent a good deal of the evening in the hospital. However, there came a time, he said, when he had left the hospital, with his head bandaged, and had then made his way to the playground area for the remaining part of the evening.

6. It follows from the defence he put forward, that the Applicant accepted at his trial that there had come a time when he was able to move freely enough to get himself away from the hospital. In essence, it was his case that he had been mistakenly identified as one of the parties to the riot.

7. The trial judge approached the case of the Applicant and his co-defendant (D3) separately. It was not disputed that a riot had erupted on the day in question with many inmates participating in it. The trial judge found that most of the inmates were armed. The weapons they were carrying included sticks, bars and water pipes. Later in the disturbance, they dragged large LPG cylinders into the road, and it was then that the valves of the cylinders were opened so that the gas escaped into the vicinity.

8. PW1 testified that he saw the Applicant in an agitated state, with his head covered in white bandages, standing near to the LPG cylinders holding a blade from a pair of shears which he was at times brandishing. He was saying that his head had been "bashed" by the Vietnamese and that he would not forget it. PW4 saw the Applicant threaten the police and heard him say that he would stab them if they came closer. PW5 testified that the Applicant carried the blade and wanted the inmates to handle the others, presumably the Vietnamese who had caused the initial trouble. PW2 and PW5 also identified the Applicant.

9. Given that identification was the crucial issue in the case against the Applicant, the trial judge approached this aspect of the case with special caution. He analysed the evidence of identification and reminded himself that honest witnesses can be mistaken. He was aware that some of the witnesses identified the Applicant by recognition, and he directed himself that "whilst recognition - an important factor in D5's case - may be more reliable, mistakes even of people well known to a witness can be made".

10. The judge found that the evidence of the witnesses in relation to the identification of the Applicant was cogent, compelling, mutually supportive and consistent. He said that the CSD officers had a good opportunity to observe the Applicant who was standing out from the rest of those around him because of his bandaged head and his possession of the blade. The judge found that there was no doubt that the identifications had been correctly made.

11. Following from this, the judge found that the Applicant was present at the LPG barricade; he was armed with a fearsome weapon and his comments and actions demonstrated that he was at first bent on revenge against the Vietnamese but later turned his anger against the forces of law and order. In the result, the judge, not surprisingly, found that the Applicant had been participating in the riot in a significant and active manner.

12. It seems to us that the judge had carefully analysed the evidence and directed himself as required by law. His reasoning, and the conclusions to which he came, cannot be criticised in any way whatsoever.

13. In particular, the judge had borne in mind the danger of mistaken identification. He had warned himself of the special need for caution in assessing the identification evidence and had directed himself in respect of the usual and important matters including the lighting conditions, the duration of the incident, the distance of the identifying witnesses from the incident they were observing, and in respect of any visual obstructions to their view.

14. The judge conducted a detailed analysis of the evidence of PWs 1 to 5, all of whom were CSD Officers, and specifically examined their evidence in relation to identification with care.

15. Apart from all of them having testified that they had seen the Applicant participating in the riot, PW2 and PW4 had previously known the Applicant and were able to recognise him.

16. Today, the Applicant has informed us that he did not recognise the Correctional Services Officers. However, whether or not that is so, it seems clear that they certainly recognised him.

17. There was also other evidence to support the identification of the Applicant, namely the Applicant's tattoos, the nickname by which others were addressing him in the mob where he was standing and, of course, his bandaged head which made him stand out from the crowd.

18. The evidence against the Applicant was overwhelming. There is no foundation for this application and it is dismissed.