HKSAR v. CHENG SAI WAI AND OTHERS

CACC 381/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 381 OF 2006

(ON APPEAL FROM DCCC NO. 302 of 2006)

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JUDGMENT

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

1.  The issue in each of these three applications is the same: whether the Deputy Judge who, after trial, convicted each applicant of two charges of wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, was correct in drawing the inferences she did on the facts which she found proved.  Each was sentenced to serve a term of four years imprisonment on each charge, the sentences to run concurrently.  Each applicant, to whom we shall refer as D1, D2 and D3 respectively, seeks leave to appeal the convictions.

2.  The offences arose from an incident which occurred, around 10:55 a.m. on 14 October 2004, in a restaurant in San Po Kong when two male customers were attacked by masked persons armed with beef knives.  The wounded person whose name appears in the first charge did not appear in court to testify.  The second injured person, CHAN hoi-kit, related how each of them was attacked.  He was unable to identify any of the attackers. 

3.  A passing police officer saw three men running from the restaurant and enter a car: he was unable to identify any of the occupants of the vehicle, particularly the driver, nor was he able to recall the registration mark of the vehicle.

The evidence

4.  The judge accepted the evidence of the witnesses who testified for the prosecution, as she was so entitled.  That evidence may conveniently be divided into three aspects - that concerning a motor car and its occupants; the events in the restaurant; and evidence concerning fingerprints and the location of exhibits. 

5.  At 10:35 a.m. that day a car bearing registration mark LL2018 was stopped by a police officer because of a traffic violation in Argyle Street whilst heading towards Kwun Tong.  Enquiries which he made of one passenger and the driver showed them to be D1 and D3 respectively.  He subsequently identified them at an identification parade. There were a further 3 males in the car. Some three minutes after stopping the vehicle he allowed it to proceed: it continued towards Kwun Tong.  His evidence was that, depending on traffic conditions, it would have taken some 10 to 15 minutes to drive from there to the restaurant where the offences occurred.

6.  Another police officer was in the vicinity of the restaurant.  At approximately 10.55 a.m. he saw a car similar to that bearing registration LL2018 parked in the middle of the road near the restaurant in such a manner as to obstruct traffic.  He then saw three persons run out from between vehicles parked alongside the restaurant and board the car which made off before the rear passenger door was closed.  One of those males was wearing a glove on one hand: it appeared to him that all the males wore facemasks.  He alighted the police vehicle in which he was sitting and walked into the path of the car so as to stop it.  It stopped 8 to 10 feet away from him. He saw in it the driver and, in the rear seat, the three men whom he had seen run from the direction of the restaurant.  The male wearing the glove, jumped out and ran towards a nearby park.  He chased that male and arrested him: the car departed.  That man was subsequently convicted of two charges of wounding.

7.  LL2018 later was seen parked outside a car park at Kowloon City at around 2:10 p.m. that afternoon.  The security guard who noticed the vehicle saw that it was still there at about 4:15 p.m. that afternoon.  He investigated.  The ignition key was still in the ignition lock, the engine was running and the nearside passenger door was not closed properly.

8.  D1 was arrested at 5:15 p.m. that day.  In response to a caution  and subsequent questioning he indicated that he and some friends earlier had had fun in Kam To and then taken a vehicle to Kwun Tong for morning tea; the registration mark began with the letters "LL" but he was unable to recall the digits; the driver, who indisputably at 10:35 a.m. was D3, CHOW Hok-man, was known to him as "Ah Man"; and there were three other males in the vehicle whose names were unknown to him. 

9.  Complaint is made that the judge “unfairly concludes…that this ‘admission’ can only be evidence against himself…and fails…to properly consider that [D1] also stated that he was only in the vehicle for fun and did not know anything about the alleged incident…”.  That is to misconstrue what the judge was saying:  she recognised that, insofar as D1 admitted being present in a vehicle, the letters of the registration mark of which were LL and which was driven by D3, that admission only was of relevance to the case against him and not that against D1 or D2. 

10.  She rejected his claim that he was only in the vehicle for fun:  to do so, she had to consider it.  She found it to be inherently improbable.  On the facts of this case, particularly in the light of the vehicle’s movements and the timings and D1’s fingerprints on the sheath found at the restaurant, she was entitled to reach that conclusion. To say that she erred in saying that “…there was no evidence…” which supported a claim of a joyride is to take those words out of context:  it is abundantly plain that she was referring to the lack of oral evidence before her in court, and in that she was correct.

11.  There were two witnesses who testified in regard to events which occurred inside the restaurant: CHAN Hoi-kit and a waiter.  The evidence of CHAN Hoi-kit was limited: he and the other male had finished their meal when each of them was suddenly set upon and chopped.  He recalled that the person who attacked him was wearing a face mask.  He had not seen how the other male had been attacked.  Although it was suggested in cross-examination that both males could have been attacked by one person, the judge considered, and sensibly rejected, this proposition her rejection being based both on the evidence of CHAN Hoi-kit as well as upon the presence of various exhibits which were seized to which reference will be made.

12.  The waiter testified that he had seen two persons enter the restaurant and turn to the table where the two males were sitting: he noticed that one of them was wearing a face mask.  There was a commotion: customers departed the restaurant: the two men who had entered the restaurant left it within a minute.  He made a number of concessions in cross-examination but the judge accepted his evidence generally. 

13.  At the restaurant the police seized two beef knives and two paper sheaths.  The sheaths fitted those beef knives.  On one of the paper sheaths two fingerprints were identified to be those of D2 and a further two fingerprint impressions were identified to be those of D1. On the second paper sheath a total of eight fingerprint and palm print impressions were identified to be those of D2.

14.  Inside LL2018 the police found a further paper sheath.  On this sheath there were five fingerprint and palm print impressions which were identified to be those of D2.  They also found the "ticket" issued by the traffic officer at 10:35 a.m. that day on which was found a fingerprint impression which was identified to be that of D1.  Also found in the car were two used face masks plus a further five unused face masks. Those were the facts from which the judge drew the inferences.

15.  That CHAN Hoi-kit referred only to one person having attacked him, that the waiter referred to two persons whom he saw carrying out an attack on two customers and that the police officer outside related that he had seen three persons running from the restaurant does not create conflicts or inconsistencies in the evidence.  These were three separate observers relating facets of the events from different perspectives.

The inferences

16.  Each applicant exercised his right not to give or call evidence: consequently there was nothing to gainsay the evidence of the prosecution or, as it was expressed in Weissensteiner v The Queen (1993) 178 CLR 217:

… There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.  In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence.

approved in Li Defan and Another v HKSAR (2002) 5 HKCFAR 360.

17.  Central to the inferences which the judge drew, and this is especially so in the case of D3, is that the car seen waiting outside the restaurant and being entered by three men who rapidly exited the restaurant was LL2018.

18.  LL2018 was seen again some three hours after the incident, and a further two hours later, in circumstances which plainly indicated that it had been hurriedly abandoned.  There were direct links from the car to D1 and D2, in the form of their fingerprints on items found in the car.  There were direct links from the restaurant to D1 and D2, in the form of their fingerprints on items found at the restaurant and which directly related to the assaults: the judge had the opportunity of examining the exhibits before her and found that "The knife sheaths [found in the restaurant and in the vehicle] had the same appearance and made by the same materials, I considered and find that they came from the same source”  

19.  The judge specifically recognized that there was no direct evidence as to the registration of the car waiting outside the restaurant.  In our view,  she was undoubtedly correct when she inferred it was LL2018.

20.  The prosecution’s case was that this was a joint venture in which the defendants acted in concert:  the precise role which each played was not relevant to criminal liability once the judge was satisfied that each had played a role in the commission of the offences.  It is clear from her reasons for verdict that the judge was well aware of her duty to consider the case in respect of each defendant separately.  When she did so she, rightly, considered the evidence as a whole.  Any suggestion that the evidence against one defendant should be viewed in isolation from the evidence as a whole insofar as it is admissible against that defendant, is untenable

21.  She carefully analysed the circumstantial evidence and dealt with a number of the unsupported hypotheses put forward on behalf of the various defendants. 

22.  There was evidence before the judge of two males entering the restaurant immediately prior to the assaults, one of whom was positively asserted to be wearing a face mask.  There was evidence of three males seen running from the direction of the restaurant and entering LL2018, one of whom was seen to be wearing a glove and was known to be a person other than either D1 or D2. Sheaths recovered at the restaurant bore the fingerprints of D1 and D2, those sheaths being purpose-made to accommodate beef knives such as those recovered at the restaurant and which plainly had been used in the assaults.

23.  The judge saw the physical exhibits and found that the sheaths found at the restaurant and that found in LL2018 were “…made by the same materials…and…came from the same source.”  This finding demonstrates preparation for the assaults and supports her conclusion that the participants were involved in a joint venture.

24.  In respect of D1 there was plain evidence that he was on board LL2018 at 10:35 a.m., it was his failure to wear a seatbelt which attracted the attention of the police officer: he was still on board when the car was permitted to continue its journey in the direction of Kwun Tong, a journey which would have had it in the vicinity of the restaurant by 10:55 a.m.: that car was observed close to the restaurant and being entered by three persons who were hurriedly exiting the restaurant: his fingerprints were found on one of the sheaths recovered at the restaurant:  his fingerprint was found on a document in LL2018 after it had been abandoned.

25.  Insofar as D2 is concerned there is clear evidence of his finger or palm prints being found on all three of the sheaths, two recovered at the restaurant and one in LL2018: the frequency with which his prints appear and their distribution across three sheaths purpose-made to accommodate beef knives such as those also recovered at the restaurant cannot be explained by mere coincidence or by hypotheses of casual contact unsupported as it is by any evidence.

26.  In the absence of any evidence to the contrary the judge was entirely justified in drawing the inferences that she did in respect of D1 and D2. 

27.  The position of D3 is quite different.  The only evidence against him is that he was established to be the driver of LL2018 in Argyle Street some 20 minutes before the assault.  At Argyle Street there were five persons in the car: the driver, D3; the three males in the rear seat one of whom is known to be D1; and a front seat passenger.  The police officer who stopped the car outside the restaurant after the three men entered it was clear in his evidence – he had seen only those three men and the driver. 

28.  It follows from his evidence that, at some point between the two observations of the car, one of the males in the car alighted:  we cannot say from the evidence whether that may have been D3.  Although the judge was aware of the change in number of occupants of the car, she did not address it in her reasons for verdict.  There being no other evidence against D3, for example fingerprints on the sheaths as in the case of D1 and D2, we are not satisfied that the judge was entitled to draw the inference that he was still the driver of LL2018 outside the restaurant, even given his election not to testify.

29.  In the event, the applications of the first and second applicants for leave to appeal are dismissed.

30.  In respect of the third applicant, we give leave and treat the hearing as the appeal.  The appeal is allowed, the convictions set aside and the sentences quashed.