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CACC 236/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 236 OF 2013
(ON APPEAL FROM HCCC NO. 362 OF 2012)
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BETWEEN
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HKSAR |
Respondent |
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and
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GURUNG Bhamindra |
1st Applicant |
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GURUNG Sulav |
2nd Applicant |
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| Before : Hon Lunn VP, Chu and McWalters JJA in Court |
| Date of Hearing : 24 June 2014 |
| Date of Judgment : 24 June 2014 |
| Date of Reasons for Judgment : 12 September 2014 |
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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court):
1. The 1st and 2nd applicants, acting in person sought leave to appeal against their conviction after trial by Deputy High Court Judge Geiser and a jury of an attempted robbery of Ng Wai Tong on 24 February 2012, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 (Count1). The 1st applicant also sought leave to appeal against his conviction of an offence of wounding Ng Wai Tong with intent at the same time and place, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 (Count 2). On arraignment, on his plea of guilty, the 2nd applicant pleaded guilty to that offence. Having been granted the assistance of the Hong Kong Bar Association’s Free Legal Service Scheme, the 2nd applicant was represented by Mr Hanif Mughal and Ms Helene Ho in his application for leave to appeal against the sentences imposed by the judge in respect of Count 1 and Count 2. At the hearing, we dismissed the applications of the 1st and 2nd applicants for leave to appeal against their conviction on Count 1 and, having allowed the application of the 1st applicant to appeal against his conviction on Count 2, dismissed the appeal. We said that we would give our reasons in due course. This, we do now.
2. On 28 June 2013, the judge sentenced the applicants to 8 years’ imprisonment on Count 1. In respect of Count 2 the 1st applicant was sentenced to 4 years and 6 months’ imprisonment, and the 2nd applicant to 3 years’ imprisonment. The judge ordered that the sentences of imprisonment imposed on each of the applicants be served concurrently, so that each of them was sentenced to a total of 8 years’ imprisonment. At the hearing, we dismissed the application of the 2nd applicant to appeal against sentence and said we would give our reasons in due course. This, we do now.
THE TRIAL
The prosecution case
3. Mr Ng Wai Tong testified that just before 7 am on 24 February 2012, he was on his way to open up his recycling business ‘Ming Kee’ in Hai Tan Street, Sham Shui Po. He was carrying a bag [1], which contained HK$21,000. As he crossed Hai Tan Street, Sham Shui Po the 1st applicant, one of two South Asia males who were sitting on some railings, jumped off the railings and approached him, punching him twice on the left side of his chest. Although he pushed him away he was dragged into the road, where both men attacked him. One of them used a pole [2] to beat him. He covered his head with his hands and used the bag to protect himself. As he squatted down, he was kicked. He shouted out, “Don’t hit me! Why are you hitting me?” One of the men attempted to snatch his bag from his hands, but he held onto it firmly. Then, the two men fled.
4. On 21 March 2012, Mr Ng Wai Tong identified the 1st applicant as one of his two assailants at an identification parade. However, he was unable to identify the second assailant.
5. Mr Yip, an employee of Ming Kee, said that he had encountered a bloodied Mr Ng Wai Tong in Hai Tam Street that morning. The latter complained that someone had tried to snatch his money. He reported the matter to the police by a ‘999’ telephone call. He rejected suggestions made on behalf of the applicant that Mr Ng Wai Tong did not have a bag in which his money was contained. He explained the absence of reference to that in his account of the police on the basis that he had merely forgotten to tell the police of that detail.
6. Mr Luong Cut Thong, a scavenger, was on his way to sell some items to Ming Kee when he saw two men attack Mr Ng Wai Tong and then flee. He gave chase, shouting “Robbery!” Although he lost sight of them for a few seconds, he caught up with them at Nam Cheong MTR station, where they had been apprehended by others. Mr Kwan Chi Wai, an employee of the MTR Corporation, said that as he left Exit D of the Nam Cheong MTR station that morning he saw a passer-by intercept a South Asian man. He assisted him to pin that the latter to the floor. As he did so, he noticed a wooden pole, covered in a jacket, carried by the man fall to the floor. Mr Ip Chi Kong testified that he was in the MTR station when he saw a man chasing a South Asian man shouting “Snatching!” He gave chase and saw another passerby apprehend the South Asian man and force him to the ground. He assisted in subduing him and noticed a wooden pole wrapped in a garment on the ground nearby to the South Asian man.
7. PC 2508 testified that he responded to a ‘999’ call and, having located Mr Ng Wai Tong, he went to the Nam Cheong MTR station where he arrested the 1st applicant. He testified that Mr Ng Wai Tong had shown him the bag which his assailants had tried to seize from him during the attack. There was no dispute that another police officer arrested the 2nd applicant at the Nam Cheong MTR station.
8. It was an admitted fact that a wooden fragment located by SPC 20042 at the scene of the attack on Mr Ng Wai Tong came from the wooden pole, exhibit P2. Further, that the analysis of DNA contained in the bloodstain on the wooden fragment and on a plastic glove, one of a number of pairs found in the garment in which the pole was wrapped when it fell to the ground at Nam Cheong MTR station, revealed that it matched that of the DNA identified in blood taken from Mr Ng Wai Tong.[3]
9. Dr Tsang Wai Tsang examined Mr Ng Wai Tong on 24 February 2012. He found three lacerations on his scalp, 3 cm, 5 cm and 7 cm in length, which required a total of 25 stitches. Also, there was a fracture of the medial wall of the left orbit surrounding the eye. Further, there were bruises to the left side of his face, left knee and abrasions to the left elbow.
Defence Case
10. The 1st applicant testified in the defence case. He accepted that he and the 2nd applicant were walking outside 15 C Hai Tan Street at about 7 am on 24 February when they encountered Mr Ng Wai Tong. They were looking for work. Mr Ng Wai Tong came around the corner and bumped into him. At that time he had a broken right forearm. He used his left hand to push Mr Ng Wai Tong away. However, Mr Ng Wai Tong swore at him. After the 2nd applicant had enquired of him what was going on, the 2nd applicant went over to the victim and asked him “What’s up” in English. In response, Mr Ng Wai Tong shouted at the 2nd applicant. Then the 2nd applicant punched Mr Ng Wai Tong in the face. Although Mr Ng Wai Tong pushed the 2nd applicant away, the latter struck him several blows to his head with a wooden pole. The 1st applicant tried to stop the 2nd applicant from hitting Mr Ng Wai Tong, but could not do so due to the pain in his arm. Having seen that Mr Ng Wai Tong was bleeding profusely and that he had covered his head with his hands, the 1st applicant became scared and fled. He did not see Mr Ng Wai Tong carrying a bag and denied that he had ever attempted to snatch the bag.
11. The 2nd applicant did not avail himself of the right to give or call evidence at the trial. In his closing submissions, Mr Hanif Mughal, who represented the 2nd applicant at trial, invited the jury to accept the version of events described in the testimony of the 1st applicant.
GROUNDS OF APPEAL AGAINST CONVICTION
1st applicant
12. In his home-made grounds of appeal attached to Form XI filed with the court on 17 July 2013, by which the 1st applicant gave notice of his application for leave to appeal against conviction, it was asserted:
“ I am totally innocent. On the basis of doubts only, the judge dropped most of my good points and allow jury to make decision. In spite of being innocent, I was convicted. I hereby complain to the injustice done to me…
Judge also did not agree that we had intention to fight and assault… The robbery never took place there. … I have never seen that bag… I have not hit the victim even once … the judge at the end dropped by points and took victim side and leave it to the jury to give verdict…”
2nd applicant
13. In his homemade grounds of appeal against conviction in relation to Count 1 the 2nd applicantcomplained first, that there was a material irregularity in that the judge failed to direct the jury that no adverse inferences should be drawn from his election not to testify at his trial. Secondly, the judge erred in not directing the jury that the absence of any blood on the victim’s bag would support the defence assertion that Mr Ng Wai Tong was not in possession of the bag at the time of the attack. If he had been, in the circumstances which he described, blood would have been found on that bag. Thirdly, the judge erred in directing the jury that there was no motive for Mr Ng Wai Tong to make up his evidence of the attempted robbery.
A CONSIDERATION OF THE SUBMISSIONS
The 1st applicant
14. The judge reminded the jury of the 1st applicant’s testimony that the fact that he and Mr Ng Wai Tong had bumped into each other as they walked along Hai Tan Road escalated into violence only after the intervention of the 2nd applicant. Of the 1st applicant’s testimony, he said:
“ ..the 2nd defendant punched him in the face. He said that he pushed the 2nd defendant away, but then he said the 2nd defendant came over again and struck PW1 (Mr Ng Wai Tong) over the head with a wooden pole several times. He said he did not know where the 2nd defendant got the pole from, and he tried to stop him from hitting PW1 with the pole but could not do so due to the pain in his arm.
The 1st defendant said that PW1 covered his head with his hands and while he was being hit, he fell onto the ground. The defendant said that he saw that PW1 was bleeding profusely. He became scared and fled. The 1st defendant said that he did not kick or hit PW1 at any time. He only pushed him when they bumped into each other.”
15. Of the 1st applicant’s testimony that there was no robbery, indeed Mr Ng Wai Tong did not even have a bag in his possession, the judge said: [4]
“ The 1st defendant also said that he did not see PW1 carrying anything in his hand and that he at no time saw him carrying the bag, Exhibit P8. It was his evidence that at no time did he ever attempt to snatch the bag and at no time did he ever assault the victim, PW1.”
16. At an earlier stage of the summing up, the judge reminded the jury in similar terms of the 1st applicant’s case. [5] Having reminded the jury of the 2nd applicant’s case, namely that having intervened in the altercation which arose after the 1st applicant and Mr Ng Wai Tong bumped into one another, he had struck Mr Ng Wai Tong twice on the head with a pole but had not attempted to rob him the judge identified the issues rising at trial: [6]
“ Was the victim carrying the bag, Exhibit P8, at the material time? Did the 1st and 2nd defendants ever enter into a joint enterprise to rob the victim of his bag and viciously assault him? And, thirdly, did the 1st defendant assault the victim at any time as described by the victim?”
17. It is clear from those passages and the summing up as a whole that the judge reminded the jury of the nub of the 1st applicant’s defence. There is no merit in the grounds of appeal against conviction advanced by the 1st applicant.
The 2nd applicant
18. Contrary to the submissions of the 2nd applicant, the judge did give the jury appropriate directions in respect of the fact that the 2nd applicant had not availed himself of his right to give evidence at trial. The judge directed the jury:[7]
“ The 2nd defendant elected not to testify nor to call any witnesses. He does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty of the 1st charge just because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other. It is nothing to establish his guilt.”
19. Of the 2nd applicant’s complaint that the judge had not addressed the issue of the absence of evidence of bloodstains on the bag Mr Ng Wai Tong claimed to be in his possession at the time of the attempted robbery, it is to be noted that the judge said that DSPC 20042 testified: [8]
“ ..that he did retrieve the bag containing the money from the victim at his shop at about 6:30 p.m. He said he saw no need to send the bag for forensic examination as he could find no bloodstains on it.”
20. The fact that the police officer had found no blood on the bag, when he seized it about 12 hours after the attack, was a matter to which counsel for the 2nd applicant had averted in his closing speech.[9]
Mr Ng Wai Tong’s evidence
21. In his summing up the Judge reminded the jury that in cross examination Mr Ng Wai Tong remained adamant in respect of his identification of the 1st applicant. [10] In that context, the judge reminded the jury of discrepancies in Mr Ng Wai Tong’s out-of-court witness statement and of his explanations of those discrepancies, in particular that he was in hospital and not feeling well. In that context, the judge invited the jury to note that he had been the subject of a “vicious attack” which had occurred over a year earlier. [11]
22. It was in the context of what the judge described as the criticism of counsel for both applicant’s that Mr Ng Wai Tong was a “liar”, as being relevant to the discrepancies between his testimony and his out-of-court statements, that the judge posed the rhetorical question: “..what possible motive PW1 has for lying.” [12] Needlesstosay, the judge had directed the jury earlier that the burden of proving guilt lay on the prosecution, adding that the applicants” do not have to prove their innocence."[13]
23. We are satisfied that, in all the circumstances, the judge was entitled to raise the issue of a motive to lie with the jury for their consideration.
24. In the result, we are satisfied that there is no merit in any of the grounds advanced by the 1st applicant in respect of his conviction on Count 1.
Count 1: additional ground of appeal
25. The Court drew the attention of counsel for the respondent to an arguable ground of appeal that arose from the directions which the judge gave the jury in respect of Count 2, in particular as to the requisite mens rea in the offence of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. In his summing up, the judge directed the jury: [14]
“But before you may convict the 1st defendant of this offence, you have to be sure of the following matters, firstly, that the injuries suffered amounted to really serious bodily harm; secondly, that the two defendants caused those injuries suffered by the victim; and thirdly, that the two defendants intended to cause really serious bodily harm to the victim or foresaw that their actions might cause really serious bodily harm to the victim yet ignored that risk and went on with their actions. That is what is meant by the word “maliciously” in the indictment.
Regarding the first of these three matters that I have referred to, members of the jury, despite the fact that counsel for the defendants attempted to downplay the injuries of the victim, if you accept the evidence of PW9, Dr Tsang Wai-tsan, that the victim had three separate lacerations on his head of 3 centimetres, 5 centimetres and 7 centimetres respectively requiring a total of 25 stitches and he also suffered a fracture to the bony structure around his left eye, then you may well come to the conclusion that this does amount to really serious bodily injury.
As far as No 2 and 3 are concerned that the defendants caused these injuries and intended to cause really serious injuries to the victim or foresaw that their acts might cause those injuries, if you accept the evidence of the victim that the 1st defendant was indeed one of the two people that assaulted him that early morning, one of whom used the wooden pole with which to repeatedly beat him and was part of a joint enterprise with the 2nd defendant to do so, then you will have no difficulty in inferring that they intended to cause those really serious injuries and you should return a verdict of guilty on the 2nd count with regard to D1.
If, however, you find that you believe the 1st defendant’s account or think that it may be true, or again if you are unsure about it in any way, then your verdict should be one of not guilty.” [Italics added.]
26. Clearly, that direction to the jury stated in effect that recklessness was sufficient to satisfy the mens rea of the offence. It was not. The offence was one of ‘specific intent’, for which recklessness is insufficient in proof of the offence. This Court, pointed out as much in its judgment in HKSAR v Chung Chi Fai [15], an English translation of the Chinese judgment having been made available to the Court by the Department of Justice. In the joint judgment of Yeung VP and Yuen JA, it was noted:
“ If the defendant deliberately committed acts of inflicting injuries on the victim and the consequence of such acts is that the victim suffers serious bodily harm, the court should avoid giving directions to the jury about the word “maliciously”. (See R v Mowatt [1968] 1 QB 421, page 426 and HKSAR v Ying Tung CACC 150/2003, paragraph 26 and 27 of the judgment). The reason being that the definition of “malice” encompasses two different senses. One is “actual intention”; the other is “recklessness”. However, under section 17, the intent required in relation to the infliction of grievous bodily harm is specific intent. “Recklessness” falls short of the requirement. In Mowatt (page 426 B-C) after discussing the two different senses in the definition of “malice”, Diplock LJ stated that the intent required by section 17 was more specific than the foresight of consequences implicit in the word “maliciously”, therefore in directing the jury about an offence under section 17, is a reference to “maliciously” was not necessary.”
27. Ms Wong Kam Hing conceded on behalf of the respondent that the judge’s direction was a material misdirection. However, she invited the court to apply the proviso, submitting that the evidence of intent was clear from the fact that a wooden pole, approximately 18 inches in length, had been used to deliver repeated blows to Mr Ng’s head and had caused the injuries described by the judge. Furthermore, she pointed to the fact that the pole had been broken whilst being used to deliver those blows.
28. We are satisfied that Ms Wong was correct in conceding that the judge’s direction to the jury was a material misdirection.
Proviso
29. We are satisfied that the evidence was overwhelming that the shared intention of the applicants was to cause really serious bodily harm to Mr Ng and that, without doubt, a reasonable jury properly directed would have convicted the 1st applicant on Count 2.[16]
30. Accordingly, although we allowed the 2nd applicant’s application for leave to appeal against conviction in respect of Count 2, we dismissed the appeal.
Sentence
31. It is to be noted that no ‘Summary of Facts’ was advanced as the factual basis on which the applicant pleaded guilty to Count 2. However, the judge said that on the basis of the evidence adduced at trial it was quite clear that the 1st applicant attacked Mr Ng Wai Tong first, punching him twice in the chest before dragging him into the road. Then, the 2nd applicant struck Mr Ng Wai Tong a number of times on the head with a pole. Although he attempted to shield his head with his hands, the assailants persisted and he was kicked also punched and kicked in the body.
32. Noting that the applicants acted in a joint enterprise to attack and to attempt to rob the victim, the judge said that for purposes of sentence he did not differentiate between them.[17] Having referred to the judgment of this Court in the Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312 the judge said that the circumstances of the commission of the offences of which the applicants had been convicted fell into the category of what was described in that judgment as ‘head-bashing’ robbery, for which it was said that the sentence should not be less than 8 years’ imprisonment.
33. The judge said that he accepted that the attack was not pre-planned. Rather, it was a spontaneous attack on the victim. He rejected the suggestion that Mr Ng Wai Tong provoked the applicants and said that it was fortunate that he did not suffer more serious and long-lasting injuries. He sentenced both applicants to 8 years’ imprisonment on Count 1.
Count 2
34. Noting that the violence done to Mr Ng Wai Tong, reflected in Count 2, was “part and parcel” of the robbery the subject of Count 1, the judge sentenced the 1st applicant to 4½ years’ imprisonment for that count, ordering it to be served concurrently to the 8years’ imprisonment imposed in respect of Count 1. The judge stated that he took 4½ years’ imprisonment as a ‘Starting Point’ for the 2nd applicant for Count 2 and, affording him a discount of one-third of the starting point to reflect his plea of guilty, imposed a sentence of 3 years’ imprisonment.
The 2nd applicant’s grounds of appeal against sentence
35. Mr Hanif Mughal submitted on behalf of the 2nd applicant that in imposing the same overall sentence on both the applicants, namely 8 years’ imprisonment, the judge failed to reflect the fact that the 2nd applicant had pleaded guilty to Count 2, namely wounding with intent. He submitted that the two counts were part and parcel of the same conduct and that the judge ought to have afforded the 2nd applicant a discount in the starting point for sentence in Count 1 to reflect his plea of guilty to Count 2.
36. We are satisfied that the judge approached sentence in the correct way. He did afford the 2nd applicant a one-third discount from the starting point of 4½years taken for Count 2 to reflect his plea of guilty and sentenced him to 3 years’ imprisonment. By contrast, the 1st applicant who was convicted after trial of that count was sentenced to 4½ years’ imprisonment. The judge was correct to determine that a starting point of 8 years’ imprisonment was appropriate, given the circumstances of the commission of the offence in Count 1. The 2nd applicant was convicted after trial of that offence. There was no basis on which it would have been appropriate for the judge to have taken a lower starting point for sentence of the 2nd applicant than that taken for the 1st applicant on the same offence. There was no merit in the submissions to the contrary.
Conclusion
37. Accordingly the application of the 2nd applicant for leave to against sentence was dismissed.
| (Michael Lunn) |
(C. CHU) |
(IAN MCWALTERS) |
| VICE-PRESIDENT |
JUSTICE OF APPEAL |
JUSTICE OF APPEAL |
Ms Fanny Wong Kam Hing, Senior Assistant Director of Public Prosecutions of Department of Justice, for the Respondent
Mr Hanif M Mughal and Ms Helene S W Ho, assigned by Bar Free Legal Service Scheme, for the 2nd applicant (for sentence)
1st applicant appeared in person
2nd applicant appeared in person for conviction
[1] Exhibit P 8.
[2] Exhibit P 2.
[3] Admitted Facts, page 7.
[4] Appeal Bundle, page 30 O-R.
[5] Appeal Bundle, page 9 B-L.
[6] Appeal Bundle, page 9 P-S.
[7] Appeal Bundle, page 15 B-E.
[8] Appeal Bundle, page 28 N-P.
[9] Appeal Bundle, page 83 E-J.
[10] Appeal Bundle, page 22 C-F.
[11] Appeal Bundle, pages 22 J - 23 A.
[12] Appeal Bundle, page 23 M-O.
[13] Appeal Bundle, page 15 J-L.
[14] Appeal Bundle, page 19 B-T.
[15] HKSAR v Chung Chi Fai (CACC 497/2012; unreported, 13 February 2014).
[16] Launder v HKSAR (2001) 4 HKCFAR 457 at 471 E-F, paragraph 61.
[17] Appeal Bundle, page 37 F-H.
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