R. v. LAM YIN SHUN

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Lam Yin Shun, was convicted after trial before Her Honour Judge Chua on a charge of wounding with intent contrary to section 17 of the Offences against the Person Ordinance.

3. The particulars of that offence stated that on 6th September 1990 outside No. 57, Kam Ping Street, North Point, together with other persons unknown, the applicant unlawfully and maliciously wounded Leung Chung Kuen with intent to cause him grievous bodily harm.

4. The applicant originally sought leave to appeal against both his conviction and his sentence but, on 23rd December 1991, he abandoned the application in respect of sentence.

5. This morning the applicant asked us to adjourn the matter stating that his family were attempting to provide him with legal representation though they have not as yet approached any firm of solicitors, it being necessary to collect sufficient money first.

6. The applicant had been informed on 27th November 1991 that his application for legal aid had been refused. At that time he signed a form acknowledging the receipt: of that refusal. In that form he was told that if he desired to be represented then he should write to the Registrar, Supreme Court, within 14 days of the receipt of such refusal, informing the Registrar of his intention and asking for a deferment of the listing of his application. He was further informed that if he took this course then the matter would not be listed for at least one month after the receipt of the letter. The applicant did not see fit to write - he tells us a welfare officer in prison told him it was unnecessary - nor has he seen fit to inform the court at any time between 27th November and today that he desired an adjournment to provide himself with legal representation. The notice of hearing was dated the 27th of December but the applicant says he did not receive it till 16th January 1992. But be that as it may, he was aware that this matter would be listed and he made no attempt to have it adjourned until his application this morning. We refused his application.

7. The basic facts were that there was an incident near a godown, or shop, at Kam Ping Street when Mr. Leung Chung Kuen was very seriously injured. He and another person, Tsoi Chun Yee, were the only witnesses called by the Crown at trial. The issue, as the trial judge fully appreciated, was identification.

8. It was Mr. Leung's evidence that he went to this place for his usual gambling and saw the witness Tsoi there, with other persons, waiting for the game to start. Then on a nearby staircase he saw four men standing. They confronted Mr. Leung. One of those men was the applicant. He had known the applicant before this as a person who had accompanied another man in the group of four referred to as "Ah Chin". He did not identify the other two men. "Ah Chin" accused Mr. Leung of spreading a story that he, "Ah Chin", cheated at gambling. Mr. Leung replied that others had seen "Ah Chin" cheating. At this "Ah Chin" became angry and declared himself as a triad member. Mr. Leung thought it better to beat a rapid retreat but as he was about to do so another 7 to 8 men rushed up to him each of them carrying knives. He saw then that "Ah Chin and two of the men with him pulled knives themselves. He was immediately attacked at the scene and he identified the applicant as one of the attackers. He attempted to protect himself by raising his arms and by running away but he was followed and a further attack took place in a godown in which he had sought refuge. The injuries which he received necessitated a stay of 5 months in hospital. During that stay, he had gone on 1st November, to an identity parade at North Point Police station and on that parade he identified the applicant.

9. Tsoi, as we have indicated, also gave evidence but, for reasons which she fully explained and into which we do not think it necessary to go, the trial judge placed no reliance on his evidence. The applicant, as was his right, decided to give no evidence.

10. The trial judge considered that which she described as the "valid submission" of counsel who then represented the applicant and all the matters which he brought to her attention. She warned herself of the dangers of identification evidence being, as we have indicated, fully aware that this was the real issue at trial. She considered here that there was more than a momentary glimpse, bore in mind the condition of the light of the time which was said to be bright, the period of the incident, the period during which the victim had an opportunity to see the applicant that the identification was of a person whom the applicant knew and was aware that there was no supporting evidence. Nevertheless, she found that the identification of the applicant was reliable evidence of good quality.

11. The applicant in submissions to us, and in his homemade grounds, has, in effect, attempted to give the evidence which he did not see fit to give at trial. He says, briefly, that he was unaware of any attacker's intention to attack Mr. Leung. He had simply gone there as an innocent gambler. When he got there he suddenly found it was a triad meeting and then decided to withdraw. The police had arrested him because he was known to be a friend of the man "Ah Chin" whom he described as the "principal suspect" and the police had arrested the applicant because they could not find "Ah Chin". He suggests that the trial judge had not given sufficient thought to the identification evidence and to coming to a conclusion of guilt upon that evidence. He suggests that Mr. Leung had not said that he, the applicant, had taken part in the attack. Mr. Leung's evidence is, however, quite clear on that point.

12. He has repeated the failed submission made by counsel at trial that the victim Mr. Leung had been visited by Tsoi in hospital and could have been influenced in his identification two months later by that which was said to him by Tsoi.

13. These are all matters which the trial judge had fully considered and we find nothing unsafe or unsatisfactory in the conviction. The trial judge was, on the evidence placed before her, fully entitled to come to the conclusions she did.

14. We, therefore, refuse the application for leave to appeal against conviction.

15. In abandoning his application in respect of sentence the applicant took a very wise course. Given the serious nature of the injuries a sentence considerably greater than 3 1/2 years could well have been imposed.