THE QUEEN v. LEUNG YAM HUNG

IN THE COURT OF APPEAL

1986, No. 526
(Criminal)

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JUDGMENT

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Silke, J.A.:

1. The Applicant, Leung Yam Hung, was convicted after trial before Judge Roy in the District Court of two offences: wounding with intent and taking a conveyance without authority - he had pleaded guilty to the second offence in the course of that trial.

2. It was the prosecution’s case that a wounding had occurred at the Ping Shek Restaurant in Ping Shek Estate when a man, Tang Chun Hung, suffered multiple chop wounds. The incident resulted from rivalry between two youth gangs.

3. The attachment of the Applicant to the offence was that the car, CT4648, of which he pleaded guilty to the taking, was, said to have brought the attackers to the scene and to have taken them away again after the chopping. The Applicant had been arrested in the driving seat of the car some little time after and some distance away from the incident.

4. A good deal of the evidence of his attachment to the offence came from a cautioned statement which, after a trial as to its admissibility, was admitted by the judge and to which he gave weight. In his Reasons for Verdict, the judge stated that he saw no reason why he should not treat that statement as a truthful confession of the accused's part in the offence.

5. The judge provided supplemental reasons for his findings on the voir dire and made reference to allegations of assaults, beatings and intimidation inflicted upon the Applicant some days before the statement was taken and fear of a Report which had the effect of inducing him to make it. The judge made an order for the production of medical case notes for it had been suggested that the Applicant, after his arrest, had been taken to the United Christian Hospital and thence to Queen Elizabeth Hospital where he was detained for two days .. These reports were not furnished to the judge despite the order he made and he said of them:

"However although I made orders for production of the medical case notes relating to the accused these were never placed before the Court and I was left with. no assistance as to the reasons for the accused's admission to hospital, if in fact it occurred."

It did occur.

6. An unfortunate misunderstanding arose and it has been accepted, and quite fairly, by Mr. Plowman that there was no bad faith on the part of the prosecuting authorities. What had happened was that, when the judge made the order, the Inspector in charge of the case had telephoned the hospital asking for the reports and was informed they would take some considerable time to prepare. He enquired as to their substance and misunderstood one portion of the answer he received as indicating that the Applicant was in hospital and being treated for a disease totally unconnected with any of the allegations which he had made.

7. Mr. Midgley who appeared for the Applicant in the Court below had been told by the Inspector of his enquiries and quite understandably took no further action in relation to the report.

8. Mr. Cross who appears for the Crown in this Court has very properly given to Mr. Plowman, and at his request, a copy of the medical report from the United Christian Hospital and which is now available to us. We have also been inf6rmed that there was a medical examination at Lai Chi Kok Prison which indicated certain bruises which could be consistent with the beating and the report from the United Christian Hospital also refers to abrasion and bruises. Neither of these matters were known to the trial judge, nor, indeed, to the defence.

9. The judge did not have an opportunity of considering them in relation to the allegations made as to the admissibility, or the truth, of the Applicant's statement. This is not to indicate that those allegations were necessarily true but, as the trial proceeded on the basis of a fundamental misunderstanding, we cannot say what view the trial judge might have taken had he not been deprived of an opportunity to consider this evidence. The conviction as to the wounding offence, in our view, cannot stand. The application is granted, the hearing treated as the hearing of the appeal, the appeal allowed and the conviction on charge 1 is quashed and the sentence set aside.

Sentence

10. The sentence passed upon the taking of the conveyance charge was one of 12 months' imprisonment. One of the reasons given by the trial judge, based on the matter as it then stood before him, for the passing of this sentence was that there is a distinction to be drawn between taking a car for a joy-ride and taking one for the purpose of committing a serious crime. He felt that the taking away here fell into the second category. That reason has, of course, now gone. We think that a sentence of in or about 6 months would have been the appropriate for an isolated charge of this nature without the overlay of the taking of the car for the purpose of participation in a serious criminal offence. The Applicant has served approximately 5 months in prison overall since his arrest and his conviction.

11. We grant the application, allow the appeal and substitute for the sentence of one year, such sentence as will effect his immediate release.