R. v. CHOW HON KWONG

IN THE COURT OF APPEAL

1995, No. 713
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant Chow Hon-Kwong was jointly charged and tried with one Mo Tung-sung. After trial by His Honour Judge Bailey in the District Court on 20th October 1995, he was convicted of all three charges.

2. The first charge was causing grievous bodily harm to Yeung Shui-chun, the victim, on 1st September 1994 in the Sing Sing Restaurant at Lockhart Road, Wanchai, contrary to s.17 of the Offences Against the Person Ordinance, Cap. 212. For this he was sentenced to 4½ years imprisonment.

3. The second charge was doing an act tending to pervert the course of justice contrary to common law, in that at the same place and time with intent to pervert the course of justice, he incited and induced and instructed the victim to give false evidence in her wounding case. In respect of this charge, he was sentenced to 6 months imprisonment.

4. The third charge was causing criminal damage contrary to s.60(1) of the Crimes Ordinance, Cap. 200, in that at the same place and time without lawful authority or reasonable excuse, he damaged some glasses and bowls with intent to do so or being reckless as to such damage. In respect of this he was sentenced to 1 month's imprisonment. This was concurrent and the 6 months imprisonment consecutive to the 4½ year term.

5. He now seeks leave to appeal against the conviction and sentence on the first charge.

6. The victim was the female owner of the Sing Sing Restaurant. In the early hours of morning of 1st September 1995, she was working in the restaurant. The applicant Chow and Mo, his co-accused were sitting at table No. 23 with two other men. One of these called Ah Kei asked the victim to sit with them. She refused. He asked who was protecting the restaurant. She declined to talk about such matters. Ah Kei then said he was of "14K". The victim made a phone call after which she was grabbed by Ah Kei and accused of not giving his elder brother "face" and of reporting the matter to the authorities. The victim explained that the call was not about that. Chow said "Don't talk so much to her. Beat her up". Subsequently he repeated this and threw a glass at the victim, missing her. She tried to walk away but was hit on the forehead by a second glass thrown by Chow. Ah Kei then slapped her twice and she fell to the floor, bleeding from the mouth.

7. In brief, as the judge put it in his reasons for sentence, the applicant participated with others in a vicious and cowardly attack on this 27-year-old victim. After she fell to the ground, Chow joined with one or more of the others in attacking her while she lay on the floor. She was punched, kicked, beaten with a stool and used as a target for bowls and other utensils thrown at her.

8. A police patrol happened to pass by and were attracted by the noise. They arrested Chow and Mo.

9. At the trial, Chow was legally represented and only one defence was pursued. This, significantly, was the question of his identity.

10. Before us, Mr Christopher Grounds, who did not appear for the applicant below, relies not upon the matter of identity but upon two new grounds he introduced in the amended perfected grounds of appeal.

11. The first is that the judge was wrong in holding that the injuries sustained by the victim amounted to grievous bodily harm. The second ground is that the judge failed to consider in a proper manner whether Chow had the requisite intention to cause grievous bodily harm.

12. The judge dealt with this aspect of the case in the following passage of his reasons for verdict at p.10:

"It is common ground in this case if the prosecution's evidence is accepted in its entirely that each of the elements of the three offences faced by D2, including the joint charge which is faced by D1 would be established.

There is no doubt that Madam Yeung (PW1) was viciously assaulted at the Sing Sing Restaurant on 1.9.94. There is no doubt that her injuries amounted to grievous bodily harm and given the undisputed manner in which they are caused there is no doubt that her assailants acted with intent to cause grievous bodily harm."

The nature of the injuries sustained by the victim can be statement of Dr Lee Po-chin which was admitted under s.65B of the Criminal Procedure Ordinance, Cap. 221. This was what he said:

"I had examined her and showed two 3 cm full thickness lacerations of the scalp. The forehead was bruised. There was tenderness over both upper arms. The neck movements were painful and limited and there was tenderness over the sternomastoid muscle of the neck. She was a little bit drowsy but otherwise well oriented in time and space. There was no other neurological deficit.

Surgical toilet and suturing was done to the scalp wounds. She was ordered to rest and given analgesics. X-ray of the arm and neck showed no major bony damage. To assess whether there was any damage to her brain, an MRI scan performed showed abnormality and it was considered that she suffered from concussion to the brain. She was then admitted in the Hong Kong Sanatorium Hospital for further observation.

In the next day, 2nd September 94, the multiple bruises appeared over the arms and knees but the neck symptoms was (sic) slowly subsiding. The scalp wound healed without problem and she was discharged on 5th September 94 with the scalp stitches taken off.

She returned to my clinic in Central on 7th September 94 and 4th October 94 respectively, complaining of dizziness and bleeding per rectum. On 4th October 94. I admitted her again to Hong Kong Sanatorium and consulted Dr K.F. Siu who took over the management."

13. As I have indicated, counsel for the applicant below did not question the prosecution case on the victim's injuries as to whether they amounted to grievous bodily harm, i.e. whether they were really serious; see R. v. Metharam [1961]3 All ER 201 and DPP v. Smith [1960]3 All ER 161. Counsel below concentrated entirely upon the question of identity, and pursued only that matter in the original perfected grounds of appeal that he settled. Those grounds were only abandoned just over a week ago when Mr Grounds took over the appeal and raised the two amended perfected grounds I have mentioned.

14. The second of those grounds, whether there was an intention to inflict grievous bodily harm, can be disposed of quite shortly. Whether or not the injuries were really serious, in our judgment, having regard to the savage nature of the attack on the victim, there can be no doubt that there was a common intention and certainly an intention on the part of the applicant Chow, given the active part he took, to cause serious injury. The judge was right in that conclusion. We bear in mind that the attack was directed particularly to the victim's head.

15. Returning then to the first amended perfected ground, Mr Grounds submits that a defence concentrating on identity does not absolve the court from the necessity to satisfy itself that grievous bodily harm was inflicted, i.e. that the injuries were really serious. In making that submission he refers to the passage I have already cited from p.10 of the reasons for verdict.

16. It is true that there was no formal admission or technical acceptance of the facts that constituted the three offences. On the other hand, the judge specifically referred to the injuries amounting to grievous bodily harm. In our view, he could not in the circumstances have failed to satisfy himself of that ingredient of the offence. It is understandable that he did not address it in greater detail having regard to the conduct of the defence and to its concern solely with the matter of identity.

17. Coming to the nub of Mr Ground's submission, it is that the medical evidence did not justify a conclusion that the injuries amounted to grievous bodily harm. The courts understandably have never sought to specifically define grievous bodily harm beyond categorising it as really serious bodily harm. It ultimately becomes a matter of judgment by the court. In saying that, we accept that the injuries here may be towards the bottom of the range of injuries that constitute grievous bodily harm. But having regard to the "two 3 cm full thickness laceration" wounds of the scalp that the victim sustained, in conjunction with the concussion from which she suffered, the manner in which those injuries were inflicted, by punches, kicks and blows to the head, and the fact that the victim was in hospital for some 5 days, not to mention the multiple bruises, we are satisfied that the judge was right in his conclusion that they constituted really serious harm.

18. We therefore find no merit in the submissions, and refuse leave to appeal against the conviction.

19. We turn then to the application for leave to appeal against sentence. Mr Grounds submissions are primarily that having regard to the minor nature of the wounds, not that we accept they were minor, the sentence of 4½ years with a totality of five was manifestly excessive. He has referred us to the case of AG v. Sin Wai-lun [1988]1 HKLR 580 in which far more severe wounds were inflicted upon a victim but on review, taking mitigating circumstances into account, a sentence of 3 years imprisonment was imposed. We have to say at once that we do not find that case of assistance. It is usually necessary where there are no guidelines or tariffs to address each case on its particular facts. We would add that in that case there were powerful mitigating considerations. When this case is looked at on its own facts, not only was this victim subjected to a particularly vicious attack but this was delivered in circumstances that can only be regarded in the most serious light with the victim being asked who was protecting the premises and then subjected to attack when she refused to cooperate. We think the judge was right in the serious view he took of the matter. The sentence of 4½ years on the first charge and the totality of 5 years produced by the consecutive sentence of 6 months on the second count were entirely justified. On the sentence too, we refuse leave to appeal.