R. v. FOK TIN YAU

IN THE COURT OF APPEAL

1994, No.305
(Criminal)

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H E A D N O T E

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Character evidence. Failure by district judge to mention in his reasons. Court of Appeal will unless there be some express or implied indication otherwise act upon the basis that he was aware of the character evidence and gave it the weight which he thought it deserved.

IN THE COURT OF APPEAL

1994, No.305
(Criminal)

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J U D G M E N T

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

1. The applicant faced two charges of wounding with intent. The first alleged that he, together with six others, on 25th April 1993 outside the Rockers Bar Karaoke, ground floor, Tak Bo Garden, Ngau Tau Kok Road, Kowloon, Hong Kong, together with other persons unknown, unlawfully and maliciously wounded Lam Hon-man with intent to cause him grievous bodily harm. The second charge was in exactly the same terms except that the alleged victim was Poon Sheung-yu. The applicant pleaded not guilty and was, after trial in the District Court before District Judge Caird, found guilty and sentenced to four years' imprisonment on each charge, the sentences to be served concurrently. He now seeks leave to appeal against both the convictions and the sentences.

2. It was the Crown case that the victims, who were two of a group of young men, were attacked by another group armed with knives and water pipes. The applicant was identified by six eye-witnesses. These were PW1, PW2, PW3, PW5, PW6 AND PW8 at trial. PW2 and PW8 said that he was carrying a knife. The applicant in his cautioned statement said that he was at the scene, that he was one of the group from which some of those who perpetrated the attack had come, that he had had a conversation about an ambush with members of the group earlier that evening, and that he had hailed taxis for those who had done the chopping to escape. It is necessary to look at his statement to appreciate the flavour of these admissions.

"Q. Now you can start. Take your time.

A. Shortly after 12 o'clock last night, I went down to the ball pitch to chat with some friends.

Q. Ball pitch, which ball pitch did you refer to ?

A. The ball pitch of Choi Wan Estate.

Q. Then what happened?

A. On arriving at the ball pitch I saw Ah Cheong. He said twenty odd people of Number 14 had come down. Then, I, together with Ah Cheong went around to look for the others to see if they were alright.

Q. When you saw Ah Cheong, who else was also there?

A. At that time, there was another person present there with Ah Cheong. But I cannot remember who he/she was.

Q. Ah Cheong said twenty odd people of Number 14 had come down. What did it mean?

A. It meant twenty odd people of 14K Triad Society had come to the ball pitch to look for us.

Q. Do you know why they went to the ball pitch to look for you?

A. They bore grudges against us and often came down to the ball pitch with knives to attack us.

Q. What happened afterwards?

A. When we came to the 4th floor of Pak Fung House, we saw the other friends of mine.

Q. At what time, how many people were there including you?

A. Around 10.

Q. Then, what happened?

A. All of us went to Man Ku's home to talk about the incident and treat the injured with rubbing medicinal wine.

Q. At that time, how many people were injured?

A. Three.

Q. Who were these three people?

A. Man Ku and two other people whom I did not know.

Q. Were these two men the two men whom you earlier said had chopped people with knives?

A. One of them was and the other was not.

Q. Do you know why the three of them were injured?

A. Man Ku told me they hurt themselves when they jumped down a slope to escape while being chased after by the 14K group.

Q. What did you talk about in Man Ku's home?

A. We talked about how to hit back at the 14K group.

Q. Eventually, what did you plan to do to hit back at the group of people of 14K Triad Society?

A. As this 14K group often played billiards in Luen Bong, we reckoned that they would play billiards in Luen Bong. So, it was decided that we would go down there ambush them.

Q. What is Luen Bong which you had mentioned and where is it?

A. It is a billiard saloon in Tak Bo Garden in Ngau Tau Kok.

Q. What is the meaning of go down to ambush them?

A. Waiting there and attacking them when they show up.

Q By whom this plan was suggested ?

A. It was suggested by Man Ku and several people said that it was good.

Q. Who were these several people who supported the suggestion and said that it was good.

A. The two injured men and another one or two persons said that it was good. I cannot remember which one.

Q. Did you talk about using of weapon when you were discussing the plan?

A. It had been talked about. But no decision was made at that time.

Q. When did you come to know that Man Ku and others had brought knives with them to ambush the group of people of 14K Triad Society?

A. I did not know until Man Ku and the others, the four of them, chopped the Number 14 group."

He then went on to tell how eight persons had gone to the Luen Bong Billiard Saloon in two taxis. He said that he did not know who had brought knives. He then went on question:

"Q. What happened when you arrived there?

A. When we arrived at the outside of Luen Bong Games Shop, Man Ku told Sau Nga Chai and a person whom I did not know to go to Luen Bong Billiard Saloon to scout the place while we waited outside the games shop.

Q. What is 'games shop'?

A. Video game centre.

Q. What is the meaning of scout the place?

A. To see if the Number 14 group was there.

Q. Then, what happened?

A. Several minutes after the two of them had gone to scout the place, I saw the Number 14 group come in two taxis.

Q. At that time, how many people of the 14K Triad Society were there?

A. 8 or 9 of them and there were two girls among them.

Q. Then, what happened?

A. We paid no attention to them. Then, they walked past us. After they had passed us, Man Ku, Kwai Tan and two men whom I did not know took out knives and ran after them to chop them.

Q. Did you see from where Man Ku and the others, the four of them, took out knives?

A. I saw them go into the street adjacent to Luen Bong Game Centre, reappear with knives in their hands seconds later and run after them to chop them. But I do not know where exactly they took the knives from.

Q. What kind of knives were the knives which you saw Man Ku and the others, the four of them, holding?

A. I did not notice what kind of knives they were. They were 17 to 18 inches long.

Q. Where were Sau Nga Chai and the other person whom you did not know, at that time?

A. I do not know. After they went into Luen Long Billiard Saloon to scout the place, I did not see them again.

Q. Then, where were you and Ah Shing?

A. The two of us hailed taxis for them at the road outside Rainbow Theatre."

3. As can be seen from the above answers, the applicant denied knowing anything about knives and denied taking any part in the chopping. The applicant gave evidence in which he affirmed these denials. It was suggested by Crown Counsel that he had told clear lies when giving evidence and that these were such as would allow the court to draw an inference of guilt therefrom. The trial judge was, however, not prepared to place any such weight upon the suggested lies. He said:

"I am not prepared to accept Mr. Cosgrove's submission as to the lies being capable of having me infer guilt. I am left with the eye-witnesses; their faults and the cautioned statements."

Before he came to consider the evidence the judge said:

"I am conscious and must remain so of the fact that these witnesses were people who were either Triad Society members or 'at least persons who associated with such members and some have previous convictions'."

He repeated this warning to himself before coming to his final conclusion when he said:

"There are aspects about the civilian witnesses backgrounds which as I have indicated are unsatisfactory."

He went on then to say:

"My view is that on the eye-witnesses identification alone, considering each witness in isolation it would be difficult to warrant and dangerous to convict on any one witness standing alone. However, it is the totality of the evidence with which I am concerned.

Defendant was undoubtedly at the scene and I accept PW2 and PW3 as witnesses of truth as to defendant having taken part in the assault on PW1 and PW3.

Looking at each charge separately and defendant in isolation from his co-accused I am of the view that the Crown has made out its case in respect of each of the charges as preferred. That all elements of the charges have been made out. He shall be found guilty accordingly."

4. Mr. King, who appears for the applicant today, argues in his first ground of appeal that the trial judge

"erred in finding that the totality of the evidence was sufficient to prove the case beyond reasonable doubt. In particular the triad background of the prosecution witnesses, made their evidence of the Applicant's involvement inherently dangerous and unreliable."

We are quite unpersuaded that the trial judge erred when acting as he did upon the "totality of the evidence". It is the duty of a judge to look at the evidence of each witness in the context of the evidence overall. When assessing the evidence of a witness among the questions which he must ask himself is whether it is consistent with the other evidence, how well it fits into the overall picture. A decision to accept the evidence of a witness is in no way weakened by the fact that the judge has warned himself that, for one reason or another, he must take particular care when examining the evidence of that witness. Indeed his decision to accept that evidence is, if anything, strengthened by such an indication.

5. The trial judge rightly examined the evidence of the witnesses against whom allegations of bad character had been made against the background of the evidence overall and was, in particular, entitled to have in mind the evidence of the applicant that he was a member of a group, that he had gone with the group to the scene to lay an ambush and that he had assisted members of the group who he said had carried out the attack to escape. We are satisfied that there is nothing in this ground.

6. Mr. King in his second ground argues that the judge "failed to direct himself in relation to the evidence of the Applicant's good character". He says that this was a serious failure as the applicant had given evidence and put his character in issue and that such a direction was necessary in the particular circumstances of this case. Whether such a direction has to be given depends entirely upon the circumstances of each case. We are mindful of what was said by Mortimer J., as he then was, in R. v. CHAN Wu-nam Criminal Appeal No.274 of 1992, in which he said:

"But in this particular case, having regard to the vital importance of credibility to the defence and the reliance placed upon it and especially having regard to the point made in the defence that the applicant may have been acting as an innocent dupe throughout, it was incumbent upon the District Judge to carefully evaluate and in these circumstances to set out the effect which the applicant's good character and age had upon his mind."

Mortimer J., however, made it plain that the ruling was one made in the circumstances of that particular case. As Penlington, J.A. made it clear in R. v. WONG Chi-wei (1994) 1 HKCLR 94, CHAN Wu-nam's case is not authority for the proposition that in all cases where credibility is in issue, the judge must set out the manner in which he has considered the accused's good character in deciding that issue. Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved. In the present case there was no such indication. We have no doubt that the judge had in mind the character and background of the applicant when coming to his conclusion. We find nothing either unsafe or unsatisfactory in the fact that the trial judge did not make reference to character in his reasons.

7. The judge made no specific finding rejecting the evidence of the applicant. In the course of argument, it was canvassed whether a complaint might properly be made of a general failure by the trial judge properly to evaluate the evidence of the applicant. Could it be said that he failed not just to take into account the good character of the applicant but had failed overall properly to assess his evidence? The judge accepted PW2 and PW3 as witnesses of truth as to defendant having taken part in the assault on PW1 and PW3. This was, by implication, the clearest rejection of the applicant's evidence that he did not take part. There is nothing to support the suggestion of a failure properly to evaluate the evidence of the applicant. The appeal against conviction must be refused.

Re Sentence

8. The applicant also appeals against his sentence of four years. The trial judge when sentencing said:

"D1 is aged 20. It has been stressed by his counsel Mr. Eaton that he had an extremely good probation report, a steady girl-friend, employers spoke well of him, his only mistake was to fall in with this other crowd on the night in question. It was pointed out that he had knowledge to the police's presence."

The trial judge obviously carefully considered that probation report. He went on to say that he did not think it would be appropriate for him to seek further information as to his suitability for detention in a detention centre. He bore in mind that the applicant had a clear record but it was also clearly very much in his mind that this was an attack which involved the use of knives. We have been concerned that a young man of this age with a clear record should be sentenced to a term of imprisonment for four years but our concern has in the end not moved us to think it would be proper to vary that sentence. The trial judge was well aware of all of the circumstances and of the extreme seriousness of the offence. Clearly an element of deterrence must enter into any sentence in circumstances of this kind. We are satisfied that it would not be proper to interfere with the sentence of four years and the application for leave to appeal against sentence must therefore be refused.