HKSAR v. TSOI KA CHUN

CACC 196/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 196 OF 2010

(ON APPEAL FROM HCCC NO. DCCC 1369 of 2009)

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JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

1.  The applicant applies for leave to appeal his conviction after trial by Judge Browne in the District Court of a single charge of wounding with intent contrary to s. 17(a) of the Offences Against the Person Ordinance, Cap. 212. He has abandoned an earlier application for leave to appeal the sentence of five years imprisonment.

2.  There are two grounds of appeal but the real issue is the judge's acceptance of the evidence that it was the applicant who wounded the complainant.

3.  In essence, the prosecution's case was that the complainant and the applicant had worked together on a site on Lantau Island requiring slope maintenance from January to October 2009: the complainant was in a supervisory role. They dealt with one another on a daily basis. On 13 October 2009 the complainant made a report, apparently not the first, to his seniors which was critical of the work of the applicant. Around 2 pm on 14 October there was a meeting between the complainant’s seniors and the site agent of the applicant’s employer to discuss the complainant's criticisms of the applicant.

4.  Later that same afternoon at about 5:20 pm whilst waiting for public transport outside Richland Gardens Shopping Centre in Ngau Tau Kok, the complainant was attacked by a male wearing a baseball cap and a face mask. The male used a blue crowbar with which to strike blows. Throughout the attack, the male was within a metre of the complainant. The evidence of the complainant was that he recognised the male as being the applicant. He pointed out the applicant as his assailant on 20 October 2009 at an identification parade at which the actors and the applicant wore, amongst other things, face masks.

5.  The applicant was also identified by a witness who was the proprietor of a metal shop in Fuk Tsun Street. She testified that he had visited her shop about 3.30 to 4 pm on 14 October to exchange some screws purchased the previous day. She had not sold him a crowbar.

6.  However, a further witness testified that in the same time frame that afternoon, in a shop a few metres away in the same street, a 36 inch long blue coloured crowbar had been sold to a male. That witness was unable to identify the purchaser. He was a man defence counsel obviously believed to be familiar with items of this nature: he was shown Exh. D2, a 35 inch long crowbar, by defence counsel which, he testified, was longer than the one he had sold.

7.  He was adamant that the purchase had occurred on 14 and not 13 October: a written invoice, Exh. P5, supported his testimony. Exh. P5 had been seized from the applicant’s motor vehicle at the time of his arrest on 16 October.

8.  The applicant had said in an interview under caution that he had purchased a new crowbar, but on 13 October, which he had taken back to the site.

9.  Three other witnesses who were employed on the site testified that they had not seen a new blue crowbar at the site. There was evidence also that larger crowbars than that purchased on 14 October were in use on the site. When the site was searched by the police on 18 October, no blue crowbar was found.

10.  There was admitted evidence that the applicant’s motor-vehicle travelled from the direction of the construction site towards Kowloon at 3:37 pm on 14 October.

11.  There was also testimony from a security guard who had seen the complainant being assaulted. He made an estimation of the height of the attacker which was at variance with that of the complainant and also was some 4 inches in excess of the applicant’s agreed height: he also demonstrated the length of the crowbar wielded by the attacker, which the judge described as 2 feet. The judge said that he placed very little weight upon the testimony of this witness: understandably so, from a reading of the transcript of his testimony. Apart from anything else, he even had failed to notice that the attacker was wearing a face mask and baseball cap.

12.  The applicant elected not to testify but relied, instead, upon contents of three records of interview under caution in which he disputed having assaulted the complainant; character evidence from a witness; and two other witnesses the tenor of whose evidence suggested that the complainant was unreasonable and aggressive.

13.  In comprehensive Reasons for Verdict, the judge set out the appropriate caveats which are taken into account when dealing with identification evidence, although this was a case of recognition rather than identification. He discussed the circumstances in which the complainant had an opportunity to identify his attacker, appreciating them to be difficult. He noted that a police officer who had testified had said that the complainant had told him that his attacker wore spectacles: he plainly rejected the evidence of the police officer, noting that given that the complainant and the applicant had worked together for a substantial period of time the complainant would have known that the applicant did not wear spectacles.

14.  The first ground of appeal asserts that the judge erred in relying upon the purchase by the applicant of a blue crowbar within two hours preceding the assault. The submission proceeds along these lines: the evidence established that the crowbar purchased by the applicant was 3 feet in length; the complainant and the security guard described the crowbar with which he was beaten as being "around 2 feet" in length; the judge did not resolve this inconsistency; it was therefore established that the crowbar used in the assault could not have been that purchased by the applicant; consequently, the judge had erred.

15.  It is also submitted that the judge failed to take into account the coincidence that both the complainant and the security guard made similar mistakes.

16.  These arguments overlook two important features: first, as noted above, the judge was singularly unimpressed with the evidence of the security guard; secondly, the complainant's evidence of the length of the crowbar with which he was being beaten was nothing more than an estimate which had been formed in circumstances in which it is fanciful to expect a person to be precise.

17.  In this connection, at §151 the judge said:

I noted that PW1 said the attacker attacked him with a blue 2 foot crowbar and the crowbar purchased by the defendant was 36 inches in length. I noted that the defendant said the crowbars on site were 2½ feet in length whereas PW9 said the crowbars on the site were 4 foot long and 3 feet long. Even, PW2 who worked in a shop selling crowbars thought the crowbar produced by the defence as D2 was longer than the one he sold to the defendant. After he was given a tape measure he confirmed that D2 was actually 35 inches, an inch shorter than the one he sold to the defendant. I also took into account the defendant was 5'3" tall and if he held a 36 inch crowbar by its end it would drag on the floor if he held it in a vertical position. I took these matters into account when assessing PW1's evidence as to the length of the crowbar and precisely how it was held in the attack upon him. I also took into account the suddenness of the attack and its duration.

18.  The second ground of appeal is similarly lacking in substance. This complains about what is characterised as "... the significant discrepancy between PW1 and PW4's evidence about the height of the attacker and the actual height of the applicant."

19.  PW4 was the security guard. We have twice recorded what the judge thought of his evidence. Insofar as PW1, the complainant’s, estimation is concerned, the complaint is made that the complainant estimates the applicant as being between 5'5" and 5'6" tall. This is not a "significant discrepancy": it is a discrepancy of, at most, 3 inches. The fact that other witnesses in entirely different circumstances were able to make more accurate estimates did not assist the argument at all.

20.  Both grounds are, simply, unrealistic. The third ground, the usual catch-all assertion that the conviction was unsafe and unsatisfactory, has no merit.

21.  This was another matter which illustrated the necessity for a judge to stand back at the end of the trial and have regard to the totality of the evidence to satisfy himself of the sufficiency of the evidence as a whole, even where there might be minor, individual differences in detail. The judge demonstrated, perhaps in more detail than was even strictly necessary, that he was alive to each of the points made before us but provided compelling reasons for finding that the applicant was the assailant. He was correct to do so.

22.  The application is dismissed.