THE QUEEN v. MA WAI SHING

IN THE COURT OF APPEAL

1995, No. 590
(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This case comes to us from a trial before Deputy Judge Chain in the District Court.

2. The applicant, a man in his mid-30's, faced two charges of wounding with intent. He was, on August 21 last year, convicted on both charges. And he now seeks leave to appeal against conviction.

3. Both charges arose out of the same incident.

4. That incident took place in Tung Tau Estate in Kowloon at about five minutes to eight on the evening of September 19, 1994.

5. We will refer to the victim named in the first charge as "the 1st victim". At the time of the incident, he was walking home with his grown-up son, the victim named in the second charge, to whom we will refer as "the second victim". Shortly before, they had closed up their herbal medicine shop for the day.

6. As they were walking past the Chi Tak Primary School, they were attacked by two men who beat them with metal pipes.

7. It is plain that the two attackers acted in concert and that they intended to cause each victim really serious injury.

8. The only question is whether the applicant was one of the attackers.

9. As far as visual identification of the applicant is concerned, this was the position. The 1st victim made one. But the judge did not consider it good enough to convict upon on its own. That was because it was based on a glance as the 1st victim half turned while protecting his head with his hands following an attack from behind. And the 2nd victim made no visual identification at all, being very near-sighted and having lost his glasses during the attack.

10. There was, however, more.

11. The 1st victim and the applicant's father had been good friends but had unfortunately quarreled over money.

12. On the evidence of the 1st victim, whose evidence he accepted, and over the denials of the applicant, whose evidence he rejected, the judge made the following findings as to that quarrel and its aftermath.

13. The victim's father demanded $200,000.00 as money owed to him by the 1st victim. But the 1st victim denied any such indebtedness.

14. On two occasions within a one-week period before the attack upon the victims, the applicant and his brother-in-law had been to the victims' shop to, as the 1st victim put it, "embarrass" him. And on one occasion, the police were summoned to the shop. Most significantly, the applicant had actually threatened to assault the 1st victim unless he paid the $200,000.00 demanded by the applicant's father.

15. That is coupled with the judge's acceptance of the 1st victim's evidence that the attack was immediately preceded by a foul expression and then these words: "you owed my old man $200,000.00, did you think you can avoid paying it?"

16. The 1st victim said that he recognized the speaker's voice as that of the applicant. While he had some reservation as to the victim's ability to recognize the applicant's voice simpliciter, the judge attached weight to the actual words spoken. And one can understand that, having regard to: one, the actual words spoken; and, two, the events which preceded the attack, when the applicant and his brother-in-law had been to the victims' shop and the applicant had threatened to assault the 1st victim unless he paid $200,000.00.

17. There was alibi evidence given by the applicant and his witnesses. Such evidence was rejected by the judge as false.

18. Ultimately, the judge convicted on the basis of evidence which he summarized thus in his Reasons for Verdict:

"(1) The applicant had twice went to the 1st victim's shop to "embarrass" him and had threatened to assault him unless he paid the alleged debt of $200,000.

(2) Just before the 1st victim was assaulted, one of the assailants shouted "blank your mother, you owed my old man $200,000, did you think you can avoid paying it".

(3) The 1st victim identified the applicant as one of the assailants.

(4) The applicant lied by giving an alibi which I find to be false."

19. The use which the judge made of the rejected alibi was not legitimate. He was entitled to reject the alibi. But it was not an alibi the falsity of which was directly established by any admission by the accused or the incontrovertible evidence of another witness.

20. Still, the case against the applicant was a very strong case. Really, the circumstantial evidence weaved itself into a very sure rope. The picture was a clear one against the applicant. And it is against that background that the judge's error in relation to lies must be viewed.

21. In truth, there was no basis on which the judge could reject the alibi as false unless he believed that the applicant was not at the place which his alibi would put him but rather at the scene of the assault.

22. And if you read the judge's Reasons for Verdict as a whole, recognizing that there are a number of unhappy expressions in it, appreciating that these things have to be read with a degree of common sense, it is clear that the judge concluded on compelling evidence that the applicant was one of the attackers, and only then rejected his alibi.

23. In those circumstances, it seems to us that while the point taken as to lies is a point rightly taken, it is plain that it has resulted in no miscarriage of justice. So that the application, treated as an appeal, must nevertheless be dismissed by an application of the proviso. We so dismiss it.