HKSAR v. CHAN KING CHUEN

CACC 116/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 116 OF 1999

(On Appeal From DCCC 1 of 1999)

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J U D G M E N T

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Nazareth, Ag. CJHC (Giving the judgment of the Court)

1. The Applicant, Chan King-chuen, was charged before Deputy Judge Geiser in the District Court on 22nd February on one count of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. He was found guilty after trial and sentenced to 18 months imprisonment. He now seeks leave to appeal against his conviction.

2. The particulars of the charge were that on or about the 4th day of January 1998, at Lok Yuen Villa, Nullah Road, Mongkok in Kowloon together with four other persons unknown, he unlawfully and maliciously caused grievous bodily harm to the victim, with intent to do him grievous bodily harm.

3. The facts are relatively straightforward. All the evidence came from one witness that was the victim. His evidence was that on 4th January 1998, in the early hours of the morning, about 2 o'clock in the morning, he went to the Lok Yuen Villa to engage the services of a prostitute. When he arrived at the premises, he said he saw the Defendant at the reception area who introduced him to a prostitute who later provided sexual services to him. He apparently went to a room with her and while he was there, he says the Defendant knocked on the door several times asking whether he had finished and indicating that the time was up. On the third occasion when the Defendant knocked on the door, the victim says the girl rushed out of the room and he, the victim, went out to reason with the Applicant. Outside at the counter, the Applicant said there was an argument between himself and the Applicant. He considered that the Applicant had given him too short a time and he questioned why he should pay when he had not finished. His evidence was that he tried to reason with the Defendant but the Defendant made a telephone call and about 5 minutes later four people came up to the premises. The Applicant did not really hear what was said on the phone, only something to the effect that the Defendant said there was some matter there. One of the four who arrived asked the victim what had happened. The Applicant also said something about the matter. The man then approached the victim, he was asked for $300.00 which it was said he had to pay. The victim paid $300.00 and his evidence was that after he gave the money to the Defendant, he heard the Defendant say to the group, "Teach him a lesson and do it to him". He was then hit, pushed back into a chair, he covered his face with his knees. He was hit on his back and head by fists and knees, and kicked. He also received a blow to his left eye.

4. The assault, he first said, lasted for several minutes and later in cross-examination, that it lasted for one to two minutes. After the assault, he noticed blood seeping out of his eye. He was asked for his ID card and pager number which he provided. After the matter, he had difficulty in seeing out of his left eye. He went to hospital and received surgery to his eye. The medical evidence put in describes the damage to his left eye and makes clear that permanent disability is expected.

5. In his Notice of Application for leave, all that the Applicant said was this:

"I now apply for leave to appeal out of dissatisfaction, because of the doubts in the witnesses' testimony."

6. However before us today, he has enlarged upon that. He says that the witness gave five sets of statements to the police in just a few months. In his first four statements, he complains, the victim never mentioned that he, the Applicant has asked anyone to assault him and that it was only in the fifth statement, that he mentioned this; moreover it was after the identification parade in which he was the only suspect. He says also that it was only because the victim had failed to identify any of his assailants that he fixed upon him, and thus he became the only one accused. He adds that when the witness was cross-examined in Court by his defence counsel, he was not at all calm but was extremely emotional besides trying his best to be evasive and to dodge the questions of defence counsel. In Court, the victim added a lot which was not in his previous statements. He deliberately enlarged his injuries in great detail so that the judge became very sympathetic to him. But the Applicant stresses, there were a lot of conflicts in the victim's evidence.

7. It has to be said, first of all, as to the extent of the injuries, that this was a matter of medical evidence. Clearly, there was damage to the victim's eye of a serious and permanent nature. But more to the point, as to the victim's evidence, the judge was clearly aware of the several statements. As he says in his judgment, the witness was cross-examined at some length by defence counsel in particular as to the five witness statements he had made to the police between January and May in 1998. In particular, he recorded that it was put to the witness that there was no mention in the statements that he had heard any of the telephone conversation and particularly no mention of the fact that he, the Applicant, had told the other four to hit him. The judge also mentioned other minor details and discrepancies that were put to the Defendant.

8. So it is perfectly clear that he did not overlook these matters. Moreover, he clearly appreciated that it was the credibility of the witness that was crucial. The judge addressed this aspect very carefully. He said he watched the victim give evidence and listened to him carefully. He acknowledged that he was a man of a rather nervous disposition but he said this:

"I am satisfied of one thing and that is that he, the witness, is being entirely truthful when he said that it was the Defendant who telephoned this group of people, who came up to the premises and who 'persuaded' him to pay and that it was the Defendant who said to the group, 'Teach him a lesson, hit him' after he paid."

9. He added:

"The fact that there are these discrepancies does not surprise me one bit as the incident will no doubt have been extremely distressing for the witness."

10. In the end, he believed that testimony of the witness despite the discrepancies. The Defendant elected not to give evidence, so there was nothing to refute it. The judge was satisfied that this was a joint enterprise in which the Applicant may not himself have actually assaulted the victim but was certainly present and actively participated by inviting the others present to assault the victim. He therefore found the charge proved and convicted the Defendant. Nothing the Applicant had said or in the circumstances in any way at all are undermines the judge's finding. We dismiss the application. The application having been so utterly devoid of merit, we think its right to disallow three months from counting towards the sentence. The result will be that the sentence will, in effect, be increased by three months.