HKSAR v. CHUNG CHI FAI

[English Translation – 英譯本]
CACC 497/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 497 OF 2012

(ON APPEAL FROM HCCC NO. 260 OF 2012)

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REASONS FOR JUDGMENT

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Hon Yeung VP and Yuen JA (giving the reasons for judgment of the Court):

Introduction

1.  Around 10:52 p.m. on 15 February 2012, Wu Yuen Fai, the victim in the present case, was injured in an attack outside “Man Lee Snack Shop” (transliteration) on the ground floor of Tai Po Plaza. Chung Chi Fai, the applicant herein, was said to have been involved in the incident and was arrested by the police on 23 February 2012 for the offence of “wounding with intent”. Under caution, the applicant said, “Ah Sir, I did not do it. I was at a betting centre on that day placing bets on horses until the 6^th or 7^th race, and then I returned home.”

2.  At 11 p.m. on 23 February 2012 the applicant voluntarily attended a video-recorded interview with Detective Sergeant 50569 and Police Constable 47952 in respect of the incident. At the interview the applicant reiterated that he was not at the scene when the incident occurred. He said that on that day he was at the Tai Po Plaza betting centre placing bets until the 6^th or 7^th race and returned home at 10 p.m. to go to bed. He said that he did not know the victim and that he did not carry any sharp object on his person on the day of the incident.

3.  Prosecution witness Miss Chong Po Ching (Miss Chong) witnessed the incident. At an identification parade held on 24 February 2012, she identified the applicant as the man who attacked the victim on the evening of 15 February 2012 outside Man Lee Snack Shop.

4.  As a result of the incident, the applicant was charged with one count of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance. He pleaded not guilty and was tried before Barnes J (the trial judge) and a jury.

5.  On 16 November 2012, the jury convicted the applicant on the charge. On 30 November 2012, he was sentenced to 17 years’ imprisonment. Represented by Mr David Ma and Ms Fiona Nam of Counsel, the applicant applied for leave to appeal the conviction and sentence. At the conclusion of the hearing, we granted the applicant leave to appeal the conviction but dismissed the appeal. We also allowed his application for leave to appeal the sentence and, treating the application as the appeal proper, allowed his appeal against sentence and reduced the sentence from 17 to 15 years. The reasons for judgment are set out below.

Issue in dispute

6.  It was not under dispute that the victim was attacked on the evening in question and sustained extremely serious injuries, including a 25-cm long laceration wound to the neck. The main issue at trial was whether or not the applicant was the assailant.

Prosecution evidence

7.  At the time of the incident, the victim, Miss Chong and Chan Mei Han (Miss Chan) were having a meal at Man Lee Snack Shop. As it was crowded inside the shop, the trio went outside, where there were three tables, and sat at the middle table. Miss Chong and Miss Chan sat respectively on the right side and left side of the applicant, who was then facing Man Lee Snack Shop with the Plaza behind him. Shortly after the trio began eating, a man suddenly approached the victim from the betting centre in the Plaza, cut his neck with a sharp object, and then left the scene immediately in the direction of the bus terminus.

8.  The victim said the sudden attack threw him into a panic. He had no idea why he was attacked for no reason. This notwithstanding, he was able to describe his assailant as someone who stood about 1.7 metres tall and was wearing a dark green windbreaker.

9.  Miss Chong witnessed the course of the incident. She said that before the attack, the assailant looked towards her and Miss Chan and gave a grin, and then he immediately threw his arm around the neck of the victim, gave him a pull to the right, and turned round to hurry off the scene. But after taking four to five steps, he turned his head to give a sly grin, which sent chills down her spine. Miss Chong said the assailant then turned round to make for the bus terminus. The victim knelt on the ground after being attacked. His neck was covered in blood.

10.  Miss Chong said it was only a matter of 5 to 6 seconds between the time the assailant emerged to attack the victim and the time he left the scene. She said the assailant was about 30 years old, 1.7 metres tall, of medium build, wearing a green windbreaker and not wearing any glasses or cap.

11.  Miss Chan also said that she saw the assailant walk up behind the victim from the betting centre. She said that the assailant leaned forward, looked at the victim, “scraped” his neck right away, and then turned round immediately to make for the bus terminus. She was unable to describe the appearance of the assailant.

12.  According to the medical evidence, the laceration wound on the victim’s neck was as long as 25 cm. The wound was not deep at both ends but was deeper in the middle, going beneath the subcutaneous layer of fat and with parts of it going even deeper than the subcutaneous tissue albeit not approaching the deep muscle. Fortunately, only the arteriole of the victim was cut and the aorta was not affected, although the injury to the nerve cords would result in numbness in the neck.

13.  The incident was captured on six CCTVs at the betting centre and Tai Po Plaza. There was footage showing the applicant turning up at the staircase by the betting centre. If he turned right, he would walk past the entrance of the betting centre towards Man Lee Snack Shop. There was also footage showing that from 10:51:39 p.m. to 10:51:47 p.m. the applicant came out of the staircase and walked past the entrance of the betting centre towards the victim. His conduct was consistent with the allegation that he was the assailant of the victim. Further, the footage showed that the applicant was at that time wearing a green upper garment, a pair of jeans and white shoes — the same clothing as that of the assailant.

14.  Records of the Jockey Club showed that there were eight races on the evening in question. Races 5, 6, 7 and 8 began at 9:15 p.m., 9:45 p.m., 10:17 p.m. and 10:52 p.m. respectively.

Applicant’s defence

15.  The applicant neither testified in his own defence nor called any witness. His position was that he was not the assailant and that Miss Chong had identified him by mistake.

Trial judge’s directions to jury

16.  The trial judge gave a detailed account to the jury of the prosecution evidence on the facts of the case, in particular the circumstances of the incident and the CCTV records.

17.  The trial judge pointed out that, in light of the victim’s neck injury, it should not be difficult for the jury to conclude that the victim had suffered grievous bodily harm in the incident. The crucial issue was whether the applicant was the assailant.

18.  The trial judge gave the jury the following directions in writing regarding the essential elements of the charge:

“Wounding with intent

You must be sure of the following before you can convict the defendant of this offence:

1. That the victim Wu Yuen Fai suffered grievous bodily harm;

2. That the defendant unlawfully caused the victim Wu Yuen Fai to suffer grievous bodily harm;

3. That the defendant intended (intentionally) to cause grievous bodily harm to the victim Wu Yuen Fai, or that the defendant actually foresaw that his acts might cause grievous bodily harm to the victim Wu Yuen Fai and yet, in disregard of that risk, proceeded with his actions when, in all the circumstances known to him, it was unreasonable for him to take the risk and do the acts. This is what the word ‘maliciously’ in the indictment means.”

In her oral directions to the jury, the trial judge repeated the above directions and then elaborated on the aforesaid three elements. In respect of the third element, she directed the jury in the following terms:

“The third [element] is that the defendant intended to cause grievous bodily harm to the victim Wu Yuen Fai, or the defendant actually foresaw that his acts might cause grievous bodily harm to the victim Wu Yuen Fai and yet [um] disregarded that risk and proceeded with such acts when, in all the circumstances known to the defendant, it was unreasonable for him to take the risk and do such acts. This is what the word ‘maliciously’ in the indictment means. Again, let us leave aside the question of whether it was the defendant, but look at it in terms of the attacker, the assailant. First, the assailant intended to cause bodily harm to the victim Wu Yuen Fai. Second, the assailant actually foresaw that his acts might cause grievous harm to the victim Wu Yuen Fai. I do not propose to read out the rest, which is already set out in writing. Clearly, there are two parts. First, there was the intention. It is only when you cannot be sure that there was the intention that you have to look at the next part, namely recklessness. This is how to look at it.” (emphasis added)

19.  In respect of the identification by Miss Chong of the applicant as the assailant, the trial judge directed the jury as follows:

“Of course, as you are in fact aware, when Miss Chong identified this defendant, as I said just now, she simply could not see how he wore his hair, what colour his hair was or how tall he was. But one fact cannot be denied: she said the person she identified from the nine persons was the defendant, and it so happened that the defendant was wearing a green outer garment and had turned up at that place. Was it sheer coincidence, or is Miss Chong a very observant person? With hair all covered, the look will be different. That is to say, generally speaking, I think if you will all think about it, that is imagine you have put on a shower cap so that the colour of your hair and your hairstyle cannot be seen, it only stands to reason that you should look different, right? So, will you think that she is quite observant, so much so that she was able to identify that person, and what’s more, that person had indeed turned up at the scene at that time, as opposed to not having been present at all. Or was it really sheer coincidence that he was wearing a green upper garment, that is, the defendant was wearing a green upper garment, and was also wearing a pair of jeans, and had turned up in the vicinity, and therefore he was, as the defence is saying, identified by mistake; by turning up at the wrong time and the wrong place, and by a strange twist of fate, he became the man when in fact he was not. These, and what in fact happened, are really matters for you to consider.”

Grounds of appeal

20.  Mr Andrew Ma of Counsel raised two grounds of appeal on behalf of the applicant. Mr Ma submitted that the trial judge had misdirected the jury regarding the requisite mens rea of the offence.

21.  Mr Ma complained that, in her written directions to the jury, the trial judge applied the interpretation of “malicious” to the essential element of “intention” in “with intent to cause grievous bodily harm”, and that she erroneously introduced concepts such as “reckless” which would mislead the jury. Mr Ma emphasized that “recklessness” did not amount to the essential element of “intention” in the offence of “wounding with intent”.

22.  Mr Ma also contended that, in directing the jury on the identification evidence given by Miss Chong, the trial judge had improperly suggested that Miss Chong was an observant person and that the likelihood of a coincidence was low, and that the trial judge had not clearly pointed out to the jury the possible weaknesses in the evidence.

Discussion

23.  According to section 17 of the Offences against the Person Ordinance (“section 17”), anyone who “(a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any person … with intent … to do … grievous bodily harm to any person” shall be guilty of an offence. Strictly speaking, this offence consists of four essential elements:

(1) The defendant had the intent to cause injury to the victim;

(2) The harm the victim suffered was truly grievous bodily harm;

(3) The grievous bodily harm the victim suffered was caused by the defendant; and

(4) The defendant’s act of wounding was unlawful and malicious.

24.  The victim’s neck was cut by a sharp object. The wound was as long as 25 cm, and part of the wound went deeper than the subcutaneous layer of fat and the subcutaneous tissue, causing the victim to bleed profusely. The injuries sustained by the victim were no doubt truly grievous bodily harm, and the perpetrator no doubt had the intent to cause him grievous bodily harm.

25.  Where an offender used a sharp object to attack a victim directly in the neck, causing him to bleed heavily, the trial judge is merely required to direct the jury that they must be sure that the defendant had the intent to cause the victim grievous bodily harm when he committed the acts in question, and is not required to further elaborate on the meaning of “intent”.  In Direction 13 of Part II of the Specimen Directions in Jury Trials regarding the direction applicable to mens rea, particular reference is made to the following statement made by Lord Bridge on the issue in R v Moloney [1985] 1 AC 905:

“In trials of murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon …”

26.  Where a defendant deliberately did some acts which caused injuries to another person, and the result of such acts was that the victim suffered grievous bodily harm, the reference to “malice” should be left out from the directions to jury (see R v Mowatt [1968] 1 QB 421 at 426, and HKSAR v Ying Tung CACC 150/2003 at paras.26 and 27). This is because the definition of “malice” covers two different situations, one involving “actual intent” and the other “reckless”. However, section 17 requires proof of a specific intent to cause grievous bodily harm, and “recklessness” is not sufficient. In Mowatt, having discussed the two different scenarios that the definition of “malice” might cover, Diplock LJ pointed out (at 46 B-C) that the intent required by section 17 was more specific than such element of foresight of consequences as was implicit in the word “malice”, and therefore in directing a jury on the section 17 offence it was not necessary for the judge to refer to the word “malice”.

“The intent expressly required by that section [section 18 Offences against the Person Act] is more specific than such element of foresight of consequences as is implicit in the word ‘maliciously’ and in directing a jury about an offence under this section the word ‘maliciously’ is best ignored.”

27.  In R v Belfon [1976] 3 All ER 46, the English Court of Appeal applied Mowatt and clearly expressed the following principle (at 49h):

“In cases of wounding with intent it had never been considered that recklessness was to be equated with the particular intention that is required in order to constitute an offence described in s.18.”

The Court of Appeal also made it clear (at 51j) that “foresight” was not the same as “intention”:

“Lord Hailsham of St Marylebone clearly distinguished ‘foresight’ from ‘intention’. He said:

‘For the reasons I have given, I do not think that foresight as such of a high degree of probability is at all the same thing as intention …’ ”

28.  Therefore, in ordinary circumstances, no mention should be made of concepts such as “malice”, “foresight” or “recklessness” when a judge directs a jury on the section 17 offence. The judge should direct the jury that they must be sure that the defendant had the intent to cause grievous bodily harm before they can convict the defendant (Archbold Hong Kong 2014, p.1310, para.20-206, Blackstone’s Criminal Practice 2014, p.261, para.B2.73). In some cases, the issue may arise as to whether the defendant foresaw grievous bodily harm. In such cases, the judge should tell the jury that they must be sure that “serious bodily harm was a virtual certainty (barring some unforeseen intervention) … and the defendant appreciated that such was the case” (R v Woollin [1999] 1 Cr App R 8). But in a usual section 17 case involving a direct attack with weapon, such as the present case, references to concepts such as “malice” or “foresight” would only confuse the jury, and the concept of “recklessness” is inconsistent with the specific intent required under section 17.

29.  In our view, the statement in para.16.3B(a) of the Specimen Directions that “‘Malicious’ in this Ordinance means either intentionally or recklessly” has not made it clear that “recklessly” is in general applicable only to section 19 cases, and neither para.16.3B(b) nor the Specimen Directions on section 17 should refer to the concept of “foresight”.

30.  We believe that the trial judge was misled by the Specimen Directions into referring not only to the concepts of “malice” and “foresight” but also to the concept of “recklessness” (see the underlined passage quoted in paragraph 18 hereinabove). Her approach is, with respect, incorrect. However, the assailant in the present case cut the victim in the neck directly with a sharp object, causing a laceration wound that measured as long as 25 cm and ran as deep as the subcutaneous tissue in the Platysma muscle. On such evidence, which was not in dispute, we believe that any reasonable jury would conclude that the “intent” required under section 17 had been sufficiently proved.

31.  We reiterate that in the majority of similar cases where someone cut the victim intentionally with a sharp object, the trial judge is only required to point out that one of the essential elements of the charge is that when the defendant committed the acts in question he had the intent to cause grievous bodily harm, and it is not necessary for the judge to elaborate further on the word “intent”. As a matter of fact, this was not at issue in the present case.

32.  In the circumstances of the present case, it can hardly be disputed that someone had intentionally, unlawfully and maliciously harmed the victim causing him grievous bodily harm. The only issue was whether or not the applicant was the assailant. As the trial judge pointed out to the jury, “… the defence has never disputed that (Mr Wu) suffered grievous injuries, that it was unlawful to cause him injuries, and that the person who caused him injuries did so intentionally. None of these are in dispute. The only issue is whether or not that person was the defendant.”

33.  In the present case, although there might have been inaccuracy and ambiguity in the trial judge’s directions to the jury regarding “intent” and/or “malice”, such inaccuracy and ambiguity in no way rendered the conviction unsafe or unsatisfactory and therefore do not constitute a ground for overturning the conviction.

34.  As regards the other ground of appeal, the trial judge had not suggested that Miss Chong was strongly observant or that the likelihood of coincidence was low. In the relevant parts of her directions, the trial judge went no further than setting out the relevant evidence and the parties’ respective cases and directing the jury on the factors they should consider before making findings of facts.

35.  In fact, regarding the evidence on the identification of the applicant by Miss Chong, the trial judge directed the jury as follows:

“The defence case is she has wrongly identified him. In other words, it is at least possible that the defendant has been wrongly identified, that [the assailant] was not the defendant. To prevent such unfair instances that had happened before, cases where people had been mistakenly identified – such incidences had happened before, that is during a trial, so in the present case I must remind you to consider very carefully before you rely on the evidence of identification by a witness, because witnesses may firmly believe that they are not mistaken or are very sure that they are not mistaken, but it does not necessarily mean they are in fact not mistaken, because you may all have had the experience of mistaking a person for another. At first glance, you may think someone you see in the street is a friend of yours, but on coming closer, you realize he/she is not. Such cases happen. Therefore, you must consider very carefully whether you can accept the identification evidence given by Miss Chong in this respect.”

36.  We also reject Mr Ma’s argument, which we consider incorrect, that the trial judge had not pointed out clearly to the jury the possible weaknesses in the relevant evidence. On the basis of the prosecution evidence, and in particular when the applicant neither testified nor called any witness to explain, rebut or undermine the prosecution evidence, the jury was fully entitled to find that the applicant was the person who attacked the victim.

37.  Given the circumstances of the case and the issue in dispute between the parties, once the applicant was found to be the person who attacked the victim, any reasonable tribunal would inevitably have found the applicant guilty of wounding with intent. Although the Mr Ma’s arguments are to a certain extent justified, the verdict of guilty against the applicant does not involve any miscarriage of justice. We do not consider the applicant’s conviction for the offence of “wounding with intent” unsafe or unsatisfactory. We have therefore granted leave to the applicant to appeal his conviction but dismissed the appeal.

Sentence

38.  The present case presents difficulties in terms of sentencing. The applicant bore no grudge whatsoever against the victim but cut his neck with a sharp object for no reason. As the trial judge pointed out, had the applicant cut through the artery or other vital bodily parts of the victim, the victim would very likely have lost his life.

39.  The motive of the applicant in committing the offence is unknown. He had been abusing drugs for as long as 20 years, causing him memory impairment, self-muttering, unexplained tremors, and visual and auditory hallucinations. The psychiatrist opined that the applicant suffered from drug-induced psychotic disorder and depression and had to be put on medication. However, the applicant refused and failed to attend follow-up consultations.

40.  The psychologist was of the opinion that the applicant was prone to violence and had a propensity to anger. Apart from having previous convictions for drug trafficking and possession of dangerous drug, the applicant had been sentenced to imprisonment for possession of offensive weapon in a public place and wounding.

41.  We do not intend to surmise the reason why the applicant committed this offence, although his violent behaviour might have been caused by his mental or psychological state. The offence he committed is very serious, posing a threat to innocent members of the public, and must be dealt with severely.

42.  In sentencing, the trial judge indicated that the starting point for offences involving attacks out of retaliation or provocation was imprisonment for 3 to 12 years, and it went without saying that the length of imprisonment depended on the facts specific to the case.

43.  The trial judge also referred to two cases involving attacks for no apparent reason: Secretary for Justice v Lam Kai Wah [2000] 2 HKLRD 246 and HKSAR v Wan Pak Sing aka Cheung Ka Ping (CACC 535/2003).

44.  In Wan Pak Sing,the defendant was a mental patient who, for no reason at all, attacked a complete stranger in the street, first with an umbrella and then with a chopper, causing serious injuries to his head and left hand. In the end, the judge ordered that he be admitted to a psychiatric centre for an unspecified time.

45.  In Lam Ka Wah,the defendant was not a mental patient but had a low I.Q.. As a result of anxiety, he got bogged down in worried ruminations in addition to not being able to control his own emotions. While waiting for a train in an MTR station and for no reason at all, he pushed a woman onto a railway track as the train was approaching. Fortunately, the victim remained calm and hid herself in the space between the tracks and therefore managed to save her own life. She nevertheless had her left hand crushed by the train, as a result of which she suffered permanent disability.

46.  The Court of Appeal considered that the appropriate starting point was 15 years’ imprisonment. A severe sentence was imposed as the court had the duty to protect the safety of members of the public.

47.  The trial judge took the view that the offence in the present case was more serious than that in Lam Kai Wah because the applicant had a sharp weapon with him at the time of the offence. Therefore, the trial judge considered it necessary to adopt a higher starting point than that in Lam Kai Wah. A starting point of 17 years was adopted.

48.  It is highly likely that the applicant in the present case and the defendant in Lam Kai Wahcommitted the offence for a similar reason. Nevertheless, we have reservations about the position taken by the trial judge that the offence in the present case was even more serious than that in Lam Kai Wah.

49.  It is true that in Lam Kai Wah, the defendant did not carry any weapon or use any weapon in the attack. However, his act of pushing a passenger waiting for a train onto the track when the train was approaching was tantamount to attempted murder. In the normal course of events, even if a person being pushed onto the track when a train is approaching is not killed, he or she is bound to sustain serious injuries.

50.  We are of the view that the offence committed by the applicant, namely wounding someone with a sharp object, is not more serious than that committed by the defendant in Lam Kai Wah, namely pushing someone onto a railway track when the train was approaching. Nor can we overlook the fact that although the victim in Lam Kai Wah was lucky enough to have survived the attack, she was left permanently disabled.

51.  The victim in the present case is left with a 25-cm long scar and suffers numbness in the right shoulder, but he is not left with other permanent disabilities. The consequences brought about by the offence are not as serious as those in Lam Kai Wah.

52.  In another similar case Secretary for Justice v Liu Chi Yung [2007] 4 HKLRD 182, the defendant, who was stopped by a police officer in the street for examination, suddenly produced a knife which he intended to use in a robbery and stabbed the police officer in the neck, causing serious injuries to the police officer and leaving him in a vegetative state. The Court of Appeal considered that the appropriate starting point was 15 years’ imprisonment. Although the defendant in that case was able to rely on a lot more mitigating factors (a clear record, remorse, voluntary surrender and a guilty plea) than the applicant is, we cannot overlook the fact that the victim in Liu Chi Yung suffered far more serious injuries than the victim in the present case did. In our view, the appropriate starting point in the present case should not be higher than those adopted in the above cases of Lam Kai Wah and Liu Chi Yung.

53.  In light of the offence in question, the way in which the applicant committed the offence and the consequences brought about by the offence, we are of the view that a sentence of 15 years’ imprisonment sufficiently reflects the gravity of the offence. Therefore, we have granted leave to the applicant to appeal the sentence and, treating the application as the appeal proper, we have allowed the appeal against sentence and reduced the applicant’s term of imprisonment from 17 years to 15 years.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor