HKSAR v. LAU CHUN YIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 574
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant who is aged 15 seeks leave to appeal against his conviction for wounding, contrary to S.17(a) of the Offences against the Person Ordinance, Cap. 212.

2. Particulars of the charge were that LAU Chun-yin, MAK Ka-kuen, LAU Ka-ho and YAN Kai-man, on or about 19th August 1996 outside the management office of Yan Shing Court, Fanling, New Territories, in Hong Kong, together with other persons unknown, unlawfully and maliciously wounded YUEN Chun-wai, with intent to do him grievous bodily harm.

3. The Applicant was convicted of the offence after a trial before Deputy Judge CHOW.

4. The incident occurred in the early hours of the morning. Following an exchange between two groups of youths, the victim, a 14-year old boy, saw a group of youths when he was in the vicinity of the management office of a housing estate at Fanling. The youths were armed with wooden poles, a knife and metal pipes. He attempted unsuccessfully to escape. He was assaulted by the youths and sustained serious injuries. He managed to get to a convenience store where a report was made to the police and he was taken to hospital where he was admitted for treatment and subsequently transferred to the Prince of Wales Hospital.

5. There was no dispute concerning the victim's injuries which were clearly of a serious nature.

6. When the victim was first interviewed by the police he said that his assailants were not known to him. He even suggested that he had only made the statement he did to the police after some pressure had been applied to him. Later he said that he did know the men. At an identification parade he picked out the four defendants in the case and gave evidence that these men were the men who had assaulted him.

7. When the Applicant was arrested by the police he made a cautioned statement in the presence of his father. In the statement he admitted being present at the scene and holding a wooden pole but claimed to be merely an observer.

8. On account of this change in the victim's evidence concerning his ability to identify the defendants, the Judge who gave detailed reasons for his finding was not prepared to convict any of the defendants solely on the victim's testimony. However where there was additional evidence he was prepared to do so. The Judge did not believe that the Applicant simply stood by while his friends were assaulting the victim. He was, therefore, left with the Applicant's admission that he was a member of the group and was holding a pole. That being established he was prepared to accept the victim's evidence that he had been an active participant.

9. In the perfected Grounds of Appeal this court is in effect being invited to retry this case. Complaint is made in the first ground that the Judge should not have been prepared to accept the evidence of the victim on account of his initial reluctance to name the defendants which has earlier been referred to in this judgment. The Judge did give careful consideration to this. Having regard to the contents of the cautioned statement there was ample evidence to support the conviction.

10. The second Ground of Appeal is that:

"The Learned Deputy erred in finding that by virtue of the version/explanation given in the Appellant's record of interview, if the same is fully believed by the Court, the only irresistible influence that can be drawn is that the Appellant was acting in concert with others in the assault on PW1."

11. There is no merit in this ground. On his admission the Applicant was a member of the gang which perpetrated this offence. The conviction was in no way unsafe or unsatisfactory and this application is dismissed.