R. v. YEUNG YUEN

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J U D G M E N T

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

1. Following his trial in the District Court the Applicant was convicted by His Honour Judge Moylan on 13th August 1991 of unlawfully and maliciously wounding one Lam Kwong Yuen in the Hsin Kuang Restaurant at 120 Lung Cheung Road, Kowloon with intent to cause him grievous bodily harm contrary to s. 17 of the Offences against the Person Ordinance, Cap. 212. He was sentenced to two-and-a-half years' imprisonment and he now seeks leave to appeal against conviction.

2. The facts are that the victim, Lam Kwong Yuen, went to a wedding banquet at the Hsin Kuang Restaurant on 10th January at about 7 p.m., where he began to play cards. At about 8:2.0 p.m. the Applicant came in, went up to him and tapped him on the shoulder and asked him to go out. He accompanied the Applicant outside where he was attacked by three Chinese males. One of them stabbed him three times in the abdomen. He was then stabbed in the back and turned round and saw only the Applicant who had a thin knife and with whom he had been involved with before.

3. The third prosecution witness, Fan Wai Man, also witnessed the start of this attack and the first blow struck by one of the other assailants, but he was frightened off by another of the attackers who was holding a sharp weapon. He ran to get help and returned to find the victim sitting on the floor.

4. The fourth prosecution witness, Ng Po Kwok, was the brother of the victim. He was also at the banquet and took over the victim's card game when the victim was called out by the Applicant. He went out when he heard the noise and found his brother, the victim, unconscious. Someone told him his brother had been attacked and he chased out and found the Applicant's car in a lane close by. He had worked with the Applicant before and had been in the car and knew it well. The Applicant and some others drove off in it.

5. The Applicant elected not to give evidence and, as I have said, the judge convicted him and sentenced him to two-and-a-half years' imprisonment. The Applicant's written grounds are that:

(1)    the presiding judge did not consider carefully the doubtful points in the witness' statement and had prejudice against him and had based his ruling on speculation

(2)    that the judge did not take into account that among the four witnesses summonsed three came from the same family and

(3)     that no exhibit or weapon was produced before the court.

6. Before us today the Applicant has more or less repeated the same grounds. He has said, in support of his claim that the judge was prejudiced against him, that he instinctively had that impression and that he feels the witnesses fabricated their evidence to take revenge. Other than that he has added little to what he says in his written grounds. We have been through the record and can find nothing to justify the complaint of prejudice.

7. As to the doubtful points the Applicant mentioned, he has not detailed them but presumably he refers to the points that were raised by his counsel below since the judge in his reasons for verdict has been primarily concerned with addressing points which, it was presumably suggested, cast doubt upon the evidence of the prosecution witnesses. Having addressed those points in his reasons the judge explained that he reached his conclusions having watched formed an assessment of each of the witnesses concerned. As has so often been explained, sitting in appeal we do not have the advantage of seeing those witnesses and we can see no grounds for questioning his assessment, even if we were so disposed, which on the evidence and circumstances we are not. In addition the judge had also explained why he did not act on certain inconsistencies and discrepancies by reference to reasons which are given. As to three of the witnesses being members of one family and related to the victim, the judge specifically addressed that matter and concluded that he had no doubt that the witnesses were honest despite the relationship. He also took into account the victim's previous record and some differences in the evidence of these witnesses and between their evidence and their statements and he explained how he did so. And finally the absence of non-production of a weapon does not in any way that we can see undermine the judge's conclusion.

8. Plainly in the face of the judge's analysis and reasons it is wrong to say that his conclusion was based on speculation, prejudice or that it was unfair. There is no merit in the Applicant's grounds and his application for leave is refused.