HKSAR v. WONG CHING YIN AND ANOTHER

CACC 586/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 586 OF 1998

(ON APPEAL FROM DCCC 1050 OF 1998)

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J U D G M E N T

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

1. On 24th November 1998 the Applicants (D2 and D3 at trial respectively) were convicted, following a trial before Judge Gill in the District Court, on two charges of wounding with intent. Both Applicants were sentenced to 6 years' imprisonment on each charge to run concurrently. They now seek leave to appeal against conviction and sentence. Legal aid was granted to D3 so far as conviction alone is concerned. He is represented by Mr Phillip Ross who did not appear in the court below.

2. The prosecution's case can be shortly stated. PW4 and PW5 were friends. On 25th June 1997, at about 1.30 a.m. they went to a village called A Kung Ngam, Shau Kei Wan to meet a man known as "Kwok Chai" who owed them money. They had telephoned him to say they were coming. Soon after entering the village, PW4 and PW5 were set upon by about ten armed men. Not all of the people in that group inflicted injuries upon the victims. The street lighting where the incident occurred was good. Kwok Chai, who has not yet been apprehended, led the attack with a machete-like knife. PW4 recognised some of the others, including D2 and D3, both of whom carried weapons.

3. PW4 received three deep and serious chop wounds, and his upper forearm was fractured. PW5 also saw Kwok Chai lead the attack and it was Kwok Chai who, with one blow, almost severed his left hand.

4. D2 and D3 fled the scene. It appears that they might have gone to Mainland China after this attack. In the course of today's hearing, D2 has confirmed that that is precisely what he did. The reason for mentioning this is that it was not until a long time later that they were arrested. This was on 6th November 1997. On the following day, D3's fingerprints were taken. These were compared to a fingerprint that had been found on a kukri-style knife (exhibit P8) which had been left behind at the scene of this crime. D3's fingerprint from his right little finger matched the print left on the knife.

5. On 19th November 1997, identification parades were held for D2 and D3. PW4 and PW5 were both able to identify D2 whereas only PW4 was able to identify D3.

6. D2 had provided the police with a statement in which he admitted his presence at the scene of the attack. He said that he had been given a baseball bat but had taken no part in the attack itself.

7. D2's defence at trial was that he had been with the others in his group but had gone away to answer a call of nature. When he came back, he saw PW4 and three others, all of whom were armed, coming into the village. When PW4 spotted him, he rushed towards him. D2 fled and escaped the scene on foot before taking a taxi out of the area. He denied, contrary to his earlier statement to the police, that he was carrying a weapon of any kind.

8. D3 elected not to give evidence.

9. The judge, in his Reasons for Verdict convicted D2 and D3 on the basis that they were both involved in a joint enterprise with Kwok Choi and others.

10. In his home-made grounds of appeal, D2 has set out his complaints as follows:

"1. The two injured persons (that is PW4 and PW5) have been acquainted with me for a long time. Before this incident, there had been a dispute."

That apparently was a dispute some long time ago.

"2. Earlier on in the police station, I gave a statement against my own free will.

3. In this case two important defendants are still at large. The two injured persons had testified in Court that it was mainly the two important defendants who had caused the injuries.

4. The trial judge failed to consider the doubts and was prejudicial when the verdict was delivered in the case.

5. The case occurred on 25th June 1997, however, it was not until 24th November 1998 that the verdict of the case was delivered. I think the time lapse is so long that it has caused prejudice to me. I think the trial judge did not deal with the doubts that have arisen in the case reasonably and appropriately."

11. At Court today, the Applicant has added to his written grounds that the evidence given by PW4 and PW5 was contradictory when looked at as between themselves and also when compared to their earlier statements made to the police. He also suggested that the two witnesses had made it plain that the Applicant himself had not inflicted the wounds and that there was, perhaps, a hidden reason which PW4 and PW5 were not disclosing why this incident may have occurred.

12. All of these matters are without any substance as grounds which could cause this Court to interfere with the verdicts recorded against D2.

13. The judge was aware that D2 was complaining that his statement had been taken against his will. A trial of that special issue was held to determine the admissibility of the statement. D2's account was rejected after proper analysis of that issue.

14. The judge was also aware that there may well have been a background to this case which extended beyond the mere collection of debts owed by Kwok Chai to PW4 and PW5. These two main witnesses may well, as D2 claims, have been known to him. That may be a reason for saying PW4 and PW5 would more easily be able to recognise him in the armed attack group. There is no reason for saying that the verdicts should be upset.

15. As for the delay in trial, it is difficult to see how this could have prejudiced D2. The prosecution witnesses' memories may have been affected, but that would have perhaps prejudiced the prosecution's case, not theirs. The trial judge was at pains to deal with the inconsistencies in the evidence in his commendably concise and accurate Reasons for Verdict. There is no basis whatever for saying that this task was approached unreasonably towards D2 or in a way that was prejudicial to him.

16. D2's application must fail.

17. Turning now to D3, Mr Ross submitted in his two grounds of appeal that:

"1. The Learned trial Judge erred in convicting the Applicant on both charges by finding that a fingerprint of the Applicant was found on a knife at the scene of an incident when the evidence to support that finding, namely, a conclusion by a witness that the fingerprint belonged to the Applicant, was inadmissible because:

(a) the evidence was opinion evidence;

(b) there was no evidence or finding by the Learned trial Judge that the witness giving the evidence was an expert;

(c) there was no evidence as to how the witness came to the conclusion that he did so as to enable the Learned trial Judge to independently judge the accuracy of the conclusion.

2. The verdicts on both charges are unsafe and unsatisfactory taking into account:

(a) the quality of the identification evidence and

(b) the probative value of the fingerprint evidence."

18. Dealing with each of the points raised in these grounds, it is correct insofar as it suggests that the identification evidence, taken on its own, may not have been sufficient to convict D3. The judge dealt with great care in dealing with this aspect. At page 13, line O, he said:

"In-chief [PW4] described [D3] as carrying a knife. In cross-examination he agreed that in four statements he had made to the police spanning late June to mid-July, he had made no reference to D3's presence at all and only did so following the identification parade in which he picked out D3 as a combatant."

Later on, the judge went on to say at page 19, line K:

"PW4 alone identified D3 as an assailant rushing forward armed with a knife. PW5 did not spot him and failed to pick him out in the identification parade. But the weight I attach to PW4's eye-witness account must be influenced by his not referring to D3's presence in any shape or form until he spotted him in the parade some months after the attack. Were it to be standing alone, I might find that evidence not sufficient to satisfy the prosecution's burden of proof."

19. However, the identification did not stand alone. The fingerprint on the kukri left behind at the scene of attack provided powerful supporting evidence if it was correctly taken into account as being admissible to prove that fact. In placing reliance on the evidence of D3's fingerprint, the judge had before him two admitted facts, which in a list of admitted facts, were numbered 4 and 10 respectively. These were:

"4. On 25.6.1997, DPC 23092 lifted a fingerprint impression on exhibit P8, a 44cm long kukri knife and marked it with reference number FP(H)9342/97A.

10. the fingerprint impression number FP(H)9342/97A and D3's fingerprint forms were delivered to the Police Headquarters for fingerprint evidence comparison. Detective Station Sergeant Lam Hon Chuen conducted the comparison and came to the conclusion that the fingerprint impression number FP(H)9342/97A was identical to the right little finger recorded on the fingerprint form of D3."

20. It hardly needs to be said that if there had been any challenge of what was set out in the admitted facts, then of course the expertise of Sergeant Lam would have had to be established. There was, during the trial, not so much as a whisper of dispute. As a revealing aside, in a matter which cannot possibly affect the outcome of this application, D3 originally prepared his own home-made grounds of appeal in which at point 6 he said:

"The fingerprint of my last finger was found, but forensic science identification did not record the detail of when the fingerprint was left."

21. His complaint, it seems to us, was that whilst accepting his fingerprint had been found on a kukri, this in itself was no evidence to show when his fingerprint came to get there.

22. In submitting that the evidence was inadmissible, because it was opinion evidence given by a witness who had not been established to be an expert and because there was no evidence as to how the witness came to his conclusions, such as would enable the judge independently to assess the accuracy of the conclusion that it was D3's fingerprint on the kukri, Mr Ross relies on two cases. The first of these is The Queen v Chan Kam-tak and Another [1988] 2 HKLR 11 where it was held at page 13 that:

"The function of an expert is, first, to give his opinion upon an issue in the case based on inferences which he draws from perceived facts as a result of his knowledge and experience; second, to give evidence of fact which his training has equipped him to perceive but which would not be observed by a layman; third, 'to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable the judge or jury to form their own judgment by the application of these criteria to the facts proved in evidence.' (Archbold, 42nd ed., paragraph 14-19 citing Davie v Edinburgh Magistrates 1953 SC 34 at 40.)"

23. We shall turn in a moment to the way in which the judgment continued. However, it is important to distinguish between Chan Kam-tak where the admissibility of the fingerprint evidence was an issue and the matter presently before us where it was never an issue. In Chan Kam-tak, the expert was called and, when he had completed his evidence, a submission was made to have that evidence excluded on the ground that the jury had not been given evidence in the form of an enlarged photograph indicating the 12 identical points of comparison in the fingerprints. As Silke V.-P. went on to say:

"The jury were entitled to know where they appeared and to have them specifically pointed out to them. When, as here, they are not, then a warning that the opinion becomes the 'bare assertion' of the expert and could well be considered to be of little weight, but is one of the factors which lies for the consideration of the jury, becomes desirable."

24. In the present case, as we have already said, the fingerprint on the Kukri and its identification as D3's were both admitted facts on which no issue was taken at all.

25. However, Mr Ross goes on to rely upon The Queen v Yeung Kwok-fai [1996] 2 HKCLR 32. The facts of that case are encompassed in the headnote as follows:

"D, a senior inspector of police, was convicted of stealing some of the working parts and dial of a Rolex watch which was in police custody as evidence for a criminal trial. At that time D was in charge of handling of court exhibits, following his posting on 19 January 1995. The watch had been in police custody since June 1993. It had been examined twice by C of Rolex, first on 27 January 1994 when he stated it to be genuine, and again on 27 February 1995 when he stated that some of the parts were fake. At a check conducted on D's safe, a discrepancy was noted between the number on a valuable property envelope ('VPE') kept in his safe and that recorded in his safe register. In a cautioned statement, D said that the VPE containing the watch had been opened in court on 26 January in order to show it to the prosecutor. The watch was taken back to the police station and put into the safe, but he had forgotten to put it in an additional VPE and have it resealed. He realised his mistake on 20 February and told the property clerk to put it into an additional VPE on his behalf. He said no one else had touched it between 26 January and 20 February 1995. He admitted that he himself wore a Rolex watch. The bulk of the evidence in the case, including two statements from C, was admitted under s.65B of the Criminal Procedure Ordinance. The magistrate rejected the defence suggestion that there was a possibility that the parts were changed by C while examining the watch."

26. In his judgment, Duffy J at page 34 said this:

"The evidence in the case had been principally adduced by way of statements admitted under s.65B of the Criminal Procedure Ordinance. Some oral evidence had been called, but the bulk of the evidence was admitted in that way. Included among the statements submitted were two statements from Mr Chiu of Rolex. This is what the learned magistrate had to say about the evidence of Mr Chiu in his Statement of Findings :

'Counsel for the appellant argued that there was a possibility that the parts of the Rolex watch could have been changed by Mr Chiu of Rolex (HK) Ltd. while he examined the watch. Mr Chiu's evidence was admitted under s.65B, Criminal Procedure Ordinance. His evidence was not challenged nor was he cross-examined. There was not the slightest clue that I could doubt the integrity of Mr Chiu. The suggestion by counsel for the appellant was a wild suggestion and I rejected it.'

Mr Griffiths submitted that simply because Mr Chiu's evidence was unchallenged by cross-examination did not mean that the appellant accepted that he was a witness of truth. He submitted that it remained the duty of the prosecution to exclude the possibility that either Mr Chiu's first examination of the watch was inaccurate, or that he substituted the parts himself. He certainly, Mr Griffiths submitted, was the one witness in the trial who would have the knowhow and the motive for removing these watch parts, and that must be an important factor to be taken into account in deciding whether he should be eliminated from the list of suspects. Mr Griffiths submitted that the magistrate was wrong to ignore such factors and apparently not to have taken them into account.

When the statement of Mr Chiu was admitted under s.65B, there was, of course, no admission by the appellant that Mr Chiu's evidence was true. His evidence simply stated that he had examined the watch on one occasion and found it to be genuine, and on another occasion, found it to be partly fake. It was part of the magistrate's task to consider Mr Chiu's evidence in the light of all the other evidence to decide whether he could, based on that evidence, be sure of the appellant's guilt."

27. We do not for one moment accept the contentions that were advanced by Mr John Griffiths, S.C. and apparently accepted by the judge. This would indicate a total misconception of the adversarial process. The contents of Chiu's statement had been admitted without challenge. However, more significantly, the judge continued in this way:

"Furthermore and most importantly, it must be remembered that Mr Chiu was in fact called as an expert witness. And while the defence, by agreeing to the admission of the statement of Mr Chiu under s.65B, indicated that it did not wish to cross-examine Mr Chiu, it was nevertheless for the prosecution to establish certain matters in relation to his expertise. Firstly, Mr Chiu had to be established as an expert, and accepted as such by the magistrate. All that was said of Mr Chiu's capacity as an expert was that he had been repairing Rolex watches since 1964 and supervising others to do so. I do not consider that that was sufficient evidence to establish that Mr Chiu had the necessary expertise in this matter. The learned magistrate made no decision as to whether he accepted Mr Chiu as an expert in these matters. While the watch itself was an exhibit in the case, there was no evidence before the court demonstrating how it was that some parts were fake and some parts were genuine. It is the duty of the expert to :

'furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence' (Davie v. Edinburgh Corporation [1953] SC 34 at 40)

There was in this case no evidence as to how Mr Chiu came to the conclusions which he reached. It was incumbent upon the Crown to call such evidence. In the absence of such evidence, the expert opinion of Mr Chiu was meaningless and worthless. The admission of the statement of Mr Chiu under s.65B did not cover these matters."

28. We can say at once that Yeung Kwok-fai was wrongly decided and should not in future be relied upon to support the proposition that, where an agreed statement under s.65B of the Criminal Procedure Ordinance (Cap. 221) is placed before the court, the prosecution has to establish the expertise of the witness when no issue has been taken of that fact. It would have been quite otherwise if Chiu's status as an expert had been an issue in the case in which event the criteria for establishing his status would, in accordance with long accepted authority, have had to be strictly proved and the witness would in all likelihood have had to be called for that purpose. This would not have been so difficult because as the facts in Yeung's case revealed and, as the judge had stated, Chiu had been engaged in repairing watches and supervising others at Rolex since 1964 which was some 29 years before his examination of the particular Rolex watch which was the subject of that case. In any event, as Mr Bruce, S.C. for the Respondent, points out, the evidence showed that Chiu was in fact an expert even though the word "expert" may not have been written into the statement. It is not in the least surprising, therefore, that no issue was taken as to Chiu's expertise and that the defence permitted his statement to be read as evidence which was accepted, at the time it was put in, as undisputed.

29. Mr Ross tried to draw further support for his proposition by referring us to another case HKSAR v Sin Chi Yin [1999] 2 HKC at 403 where a similar point relating to the expertise of a witness had been taken by the defence and was accepted by Pang J. This was, for the same reasons as we have given relating to Chiu's case, decided in error and should not be relied upon in this respect.

30. Returning now to the matter presently before us, we are satisfied that in acting upon the admitted facts which demonstrated that the fingerprint had been left on the kukri, there was no need for the judge to make a finding that the witness who provided that evidence was an expert. There would be no point and no sense in having facts admitted under s.65C of the Criminal Procedure Ordinance if, to take this present example, it was still necessary to prove the expertise of the fingerprint expert.

31. In his Reasons for Verdict, the judge said, when dealing with this aspect of the evidence, at page 19 line P of the appeal bundle:

"But there is material corroboration found in the shape of D3's fingerprint on one of the kukri knives discovered in the playground after the attack. D3's counsel, Mr So, submits I should attach minimal weight to this as there is no evidence as to how the print came to be there and when. But it would be a fanciful scenario to suggest that D3 might have handled the knife sometime earlier in circumstances unrelated to the attack.

Taken together, I am satisfied that these two pieces of evidence establish beyond reasonable doubt that D3 was part of Kwok Chai's gang whose common intention was to maim their intended victims. For that purpose, he armed himself with the knife, joined in the attack and then, when it was over, discarded the knife in the park along with those left by his fellow assailants."

32. The judge was fully entitled to reach this conclusion and indeed, on these facts, it would have been most surprising if he had not done so. The overwhelming inference to be drawn from the fingerprint was one of guilt and it lent powerful support to weak, but not insignificant identification evidence. The combination of these two pieces of evidence drives us to the conclusion that these convictions were neither unsafe nor unsatisfactory.

33. Accordingly, D3's application so far as it concerns conviction is dismissed.

34. Turning now to the applications of D2 and D3 concerning sentence, the judge had this to say in his Reasons for Sentence, having outlined the general circumstances of this dreadful attack:

"My first task is to consider the appropriate starting point for sentence. The maximum sentence is life imprisonment, which indicates how seriously is regarded this sort of offending. There is no guideline because of the great variety of crimes that fall into this category. Suffice to say that these were extremely serious examples. There were a number of assailants and the weapons, kukri knives and the like, are capable of inflicting grave injury.

One victim nearly lost his hand and the other was chopped indiscriminately and with much force and then left alone. It was his good fortune that he was able to call for assistance himself and thus receive attention much earlier than might otherwise have been the case, with more serious consequences.

There is no evidence that either defendants struck a blow. In fact, from the evidence, it seems most of the wounds were inflicted by a man called Kwok Chai who might be regarded as the leader of the gang and who escaped and remains at large. But by aligning themselves alongside Kwok Chai, arming themselves similarly, they and all the rest of the group chose to join with him in an enterprise whose common cause was to maim, and they must bear the consequences as if they themselves wielded the weapon that caused the injury.

This was a pre-planned act of thuggery whose purpose was to inflict disabling injury. The numbers were designed to overwhelm. Then, after the wounding, the victims were left to fend as best they could.

I propose to fix a starting point of 6 years' imprisonment for each charge.

I have antecedent statements before me and have had the benefit of counsel's submissions dealing with the background of the defendants in each case. Neither counsel invited me to call for background reports, and for all D2's comparatively young age, I did not in the circumstances believe it was warranted.

Both come from modest working class backgrounds. Both had uneventful school careers. Both have menial jobs. Both have previous convictions. Both have been to prison before, as recently as this year. There is nothing before me really which warrants a departure from the starting point I have come to. I am mindful that D2 at 21 is of an age where youth might be a consideration. I am mindful that 6 years is a long sentence for a man of his age. But this was heinous crime for which I believe there can be no allowance for age."

35. The Applicants complained that these sentences by comparison to other similar cases were too severe. It is clear from his judgment and indeed from all the matters that the Applicants have raised in their grounds and today in Court, that the judge had borne in mind all relevant factors when imposing the sentence he decided was appropriate for these crimes.

36. We can say that the sentences were not a day too long. There is not the slightest merit in these applications and they must be dismissed.