HKSAR v. CHAN CHI MING

IN THE COURT OF APPEAL

1997, No. 83

(Criminal)

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J U D G M E N T

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Stuart-Moore J. (giving the judgment of the Court):

1. On 17th January 1997, the Applicant was convicted of wounding with intent contrary to s.17(a) of the Offences Against the Person Ordinance, Cap.212, following a trial before Deputy Judge Barnes in the District Court. As a result the Applicant was sentenced to 18 months' imprisonment. He now seeks leave to appeal against conviction.

2. The basis of the allegation is set out on pages 1 and 2 in the Reasons for Verdict, part of which reads in the following way:

'Leung Chi-on (PW2) testified that in the early hours on 15.7.96, he had gone to the RMB Karaoke with Poon Wing-yee (PW5) and Maggie Chung Wan-ling ("Chung"). PW2 contacted Ip Wai-shun (PW3) to join them at a later stage. The four of them sang songs in Room 14 of the said Karaoke. It came a time when both Chung and PW5 had left the room, leaving only PW2 and PW3 inside. The Defendant dashed into the room holding a knife (exhibit P4) in his right hand. The Defendant placed the knife against PW2's neck with force, saying that he was the "Local Bully" and complained that his "wife" had been molested.'

I interpose to say that PW5 was an ex-girl friend of this Applicant.

'PW2 pushed the knife away from his neck and sustained a cut on his left forearm. The Defendant raised the knife to chop PW2, who sustained injury to his left hand as a result of warding off the blow. PW2 called for the assistance of PW3 who helped to press against the Defendant. PW2 snatched the knife and caused it to fall onto the floor. PW2 told a waiter who was at the doorway to take the knife away which the waiter did. Thereafter, PW2 told PW3 to call the police. PW2 struggled with the Defendant at the doorway. The Defendant used a mobile phone to hit PW2's head, forehead and the corner of his eye for a total of 4 times. Defendant tried to flee and PW2 chased after him. PW2 caught the Defendant outside the entrance of the Karaoke. He struggled with the Defendant until the police came. PW2 told the police that the Defendant had chopped him."

3. The Grounds of Appeal state that the learned Deputy Judge failed to evaluate the defence case properly or fairly in two specific ways. Firstly, it is said that the silence of the Applicant on arrest has been used against him, and secondly, that erroneous findings of fact led to a failure on the part of the learned Deputy Judge to consider self defence and that the flawed findings have rendered the verdict unsafe and unsatisfactory.

4. Taking each of these matters in turn, particular emphasis is placed by Mr. Buchanan on his first point of appeal in support of this application to a passage which is to be found at page 9 of the Reasons of Verdict (page 13 in the Bundle). It reads:

'I find the Defendant an untruthful and unreliable witness who has obviously been making up evidence as he went along. The most telling part is that it was never the defence case that the Defendant had complained to the police that the Defendant was the victim of an assault. The injuries sustained by PW2 did not tally with the Defendant's version that he was the victim. On the contrary, the injuries sustained by the Defendant are consistent with PW2 trying to disarm him and having a struggle with him to prevent him from fleeing. As PW2 is taller and bigger than the Defendant, the Defendant would have sustained very serious injuries indeed had he been attacked by PW2 together with another man armed with a knife as he had alleged.'

Mr. Buchanan has identified a passage in the evidence where the Applicant in cross-examination said that he had told the police he had been attacked. This was not believed by the trial judge. On the evidence, she was quite entitled to reach that conclusion. It was not the Applicant's silence to the police which told against him. It was the fact that it has never been a part of the Applicant's case until cross-examination that he had complained to the police of being the victim, coupled with the fact that his injuries did not tally with his version that he was the victim and not the attacker. In any event, the learned Deputy Judge was fully aware of the rule that a person's silence is not usually to be held against him. This is apparent from a passage in the transcript at p.125 where she pointed out to counsel who was then appearing on behalf of the prosecution, not counsel in this appeal, that an arrested person under caution does not have to explain why he exercised his right to silence. The learned Deputy Judge had interrupted cross-examination to deal with that point specifically. There is no substance to the first ground.

5. Turning to the second ground of appeal, we have been urged to listen to further evidence from a medical witness in support of this application to refute what Mr. Buchanan calls an erroneous finding of the learned Deputy Judge that 'the Applicant would have sustained very serious injuries if he had been attacked by PW2'. We have refused leave to call evidence under s.83V of the Criminal Procedure Ordinance. The learned Judge was, in our opinion, drawing an inference based on all the circumstances which she set out in detail in her reasoned judgment. It was an inference to which she was fully entitled to come. It was perhaps a little inelegant the way that she expressed her findings in saying:

'As PW2 is taller and bigger than the Defendant, the Defendant would have sustained very serious injuries indeed had he been attacked by PW2 together with another man.'

But it is clear to us that the learned Judge was meaning by that to say that if the second prosecution witness had attacked this Applicant, the likelihood is that the Applicant would have received more serious injuries than the very minor ones he in fact did receive. The facts as she found them were consistent with the prosecution's allegation and not with the story told by this Applicant. In those circumstances, there were no matters upon which a medical witness could have helped us and for that reason the opinion of a doctor was not sought by this court.

6. All we need to say finally is that, having disbelieved the Applicant in evidence as a man who was 'making up his evidence as he went along', self defence never got off the ground as a viable defence capable of belief, and in those circumstances the learned Judge did not need to consider it further.

7. There is no merit to the application and it is refused.