HKSAR v. FUNG KWOK LEUNG

CACC 372/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 372 OF 2003

(ON APPEAL FROM DCCC 475 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 1 August 2003, the Applicant was convicted in the District Court of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, following a trial before Judge Whaley. He now seeks leave to appeal against his conviction.

2. The attack on the victim (PW1) on 28 October 2002 which led to this charge was apparently motivated by a desire to take revenge. On a previous occasion, PW1 had attended court to give evidence against some of the Applicant's friends following an earlier assault upon him. The Applicant had been known to PW1 by sight for several years. PW1 often saw the Applicant in the area of the estate where he (PW1) lived and he thought that the Applicant, who he knew as "Ah Kwok", probably also lived there.

3. This was a particularly vicious attack by a group of about four men all armed with knives, leaving PW1 with multiple chop wounds. Despite this, PW1 had a good opportunity in which to recognise the Applicant and, although these events happened soon after midnight, the street lighting was fairly good.

4. The Applicant was not arrested until 2 December 2002. He was then put onto an identification parade with a second suspect known as "Ah Pao" who PW1 had also named in his witness statements. Only the Applicant, however, was identified by PW1.

5. A friend, PW2, who had been with PW1 when the attack began, escaped unharmed by running away. He attended an identification parade on which the Applicant was standing, but did not pick him out.

6. The Applicant did not give evidence. He did, however, call the suspect, whose nickname is "Ah Pao" and who PW1 had failed to identify, to testify as to how allegations against him came to be dropped. This happened, it was said, when police discovered that he had been arrested on 28 October 2002 at a different location for an offence in connection with drugs. This witness said that he had known PW1 for about four years.

7. More importantly, an alibi witness, Miss Cheung, was called. She was, at the material time, the Applicant's girlfriend. Her account of her movements in his company up to the moment that she accompanied him to his home just after midnight and spent the night there, provided the Applicant, if it was or may have been true, with a complete alibi for the time of the attack on PW1.

The application

8. Three grounds of appeal were advanced on the Applicant's behalf by Mr Wong Man-kit, SC.

9. Firstly, it was submitted that the judge had erred when finding that PW1 had correctly identified the Applicant as one of the assailants, particularly in the light of PW2's failure to identify him. PW2 had stated his belief that there were only three assailants and that, if he saw any of them again, he would be able to identify them.

10. This was not a point which had escaped the attention of the judge who remarked, in his Reasons for Verdict:

"13. Wong Ying-keung (PW2) also gave evidence which broadly confirmed PW1's evidence as to the circumstances in which the attack took place. He had not recognised or known any of the attackers and at the two identification parades which he attended on 14 January this year, in both of which it is admitted the defendant and Ah Pao were present in the line up, he had not identified anybody. This notwithstanding, I note, that he did say in evidence that he would have been able to recognise any of the three people who ran after them if he had seen them subsequently." (Appeal bundle p. 12)

11. PW2's evidence revealed that he had been in a totally different position to PW1 who not only knew the Applicant but also had a much greater opportunity to recognise him in the course of the attack. The suggestion made by Mr Wong that "PW2 was effectively saying that the Applicant was not one of the assailants" had to be viewed against the evidence as a whole. As to this, the judge kept in mind the principles in R v Turnbull & Ors [1977] QB 224, and concluded that PW1 had correctly identified the Applicant as one of the people who had attacked him. In doing so, the judge dealt with the discrepancy revealed by PW1's apparent identification of "Ah Pao" as one of the culprits responsible for the attack when saying:

"30. .... (PW1) did clearly state in the first two witness statements that he had recognised not only the defendant but also Ah Pao as being one of his assailants on the night in question. When he was cross-examined about this, he explained that on the night in question one of his attackers had looked to him like Ah Pao and he had told the police in his first witness statement that he clearly recognised Ah Pao, in part by the dragon tattoo on his arms. In his second witness statement, he went further and said 'The male who chopped me was nicknamed Ah Pao and he chopped me in a close way. I could see his face.'

31. He explained, however, that when he viewed the identification parade on 14 January and he saw Ah Pao in the line up - 'the real Ah Pao' as he put it - he then realised that this real Ah Pao had not in fact taken part in the chopping attack and that he had been mistaken in initially thinking that Ah Pao had been one of his attackers: 'When I really saw him, I realised that that person who had looked like Ah Pao during the chopping incident was not the real Ah Pao.' There is no dispute that PW1 did not purport to identify Ah Pao at the identification parade as one of his attackers." (Appeal bundle p. 16)

12. The complaint which Mr Wong raised that the judge had failed to deal with the discrepancy in the prosecution's case, created by PW2's evidence, as this passage reveals, was specifically dealt with by the judge in a comprehensive and sensible manner.

13. Accordingly, this ground fails.

14. In his second ground, Mr Wong submitted that the judge gave himself an erroneous "lies" direction in relation to the alibi called on the Applicant's behalf.

15. This ground was misconceived.

16. On this aspect of the case, the judge had this to say:

"48. To return to the false alibi, I do appreciate, as was also emphasised in Turnbull's case (above), that there are many reasons why a defendant might put forward a false alibi which are not necessarily indicative of guilt or of feelings of guilt on his part. For example, it might be put forward to bolster a good defence, or even if he is innocent, by exaggerating his case in order to ensure that he is not wrongly convicted.

49. I am satisfied, however, on all the evidence in this case that the sole reason that this false alibi has been put forward was in order to deceive the court, and out of consciousness on the defendant's part that he did indeed take part in this chopping attack upon PW1.

50. It does not follow from this, of course, that the defendant was necessarily where PW1 said he was, namely taking part in this chopping attack on him. That question falls to be decided on all the evidence taken as a whole." (Appeal bundle p. 19)

17. The criticisms of this direction related to matters which, in a jury trial (see: HKSAR v Mo Shiu-shing [1999] 2 HKLRD 155) should, in appropriate circumstances, be spelt out to the jury. Mr Wong particularly criticised the judge's use of the phrase "out of consciousness on the defendant's part that he did indeed take part in the chopping" when stating that this was the reason for the alibi having been put forward. In this regard, whilst this might have been a confusing formula to have used with a jury, and is similar to one which this court has discouraged in such trials, this was not a trial by jury but by an experienced and professional District Court judge. There is no indication whatsoever that he had failed to grasp this relatively elementary area of the law.

18. The same also applies to a further complaint made under this ground that the judge had not directed himself in terms that a lie "could never in itself prove guilt". Words to that effect will no doubt have to be used in a jury trial where appropriate. Here, the judge demonstrated his complete understanding of the law, following his rejection of the alibi, by saying that "it does not follow from this, of course, that the (Applicant) was necessarily where PW1 said he was". He then returned to the picture revealed by the evidence as a whole when concluding that the prosecution had proved its case.

19. In the final ground advanced by Mr Wong, it was argued that the judge had misunderstood the Applicant's answers in an interview with police to have been "exculpatory" when in fact they were "neutral". Furthermore, he suggested that the judge had failed to consider "the fact that when the Applicant was given the chance (on 2 December 2002) to put forward a false alibi .... the Applicant said that he had forgotten where he was because it was too long ago".

20. When the Applicant was questioned after his arrest on 2 December 2002, he made no admissions and also said he did not know the victim. Whether these were exculpatory statements or merely neutral in their effect could have made no difference to the case against the Applicant or the judge's approach to it.

21. Mr Wong also, in this context, submitted that counsel for the prosecution had failed to put in cross-examination that there had been, as the judge effectively found, an agreement between the Applicant and his alibi witness to concoct a false alibi. However, this did not assist the Applicant because, as Mr Wong candidly accepted, the judge was fully entitled to have drawn this rather obvious inference from the findings which he reached.

22. This was a ground which lacked any substance.

23. The judge had fully and fairly assessed the case for and against the Applicant in arriving at a verdict which, in our view, was not open to justifiable criticism of any kind.

Conclusion

24. The application is dismissed.