THE QUEEN v. LAI CHUN FUNG

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was tried with three co-accused before Deputy Judge Gall and a jury on an indictment containing eight counts, the first seven being counts of wounding with intent to do grievous bodily harm, each in respect of a different victim. The eighth count was one of affray and was stated to be an alternative to the first seven counts. All four accused were found guilty on each of the wounding counts.

2. Originally the applicant, who was the 4th accused at the trial, and two of his co-accused, the 1st and 3rd accused, applied for leave to appeal against their convictions. The latter two subsequently abandoned their applications, leaving the applicant to pursue his. At the conclusion of the hearing we refused the application and said that we would hand down our reasons later. This we now do.

3. The evidentiary background was that a team of four police officers attached to Kwai Chung police station were on plainclothes patrol at Tai Wo Hau estate when, on reaching the junction of Texaco Road and Tak Tai Path at about 10.50 p.m., they saw approximately 15 to 20 males armed with knives rush into the Shun Tin Video Games Centre some four to five shop spaces from that junction. The police team went forward. Shouts for help were heard coming from inside the video centre followed by the smashing of glass in the door as people started rushing out pursued by men armed with knives. Some of those fleeing fell down immediately outside the entrance and desperately attempted to struggle to their feet in an effort to escape. The area was brightly illuminated by three spotlights at the front of the video centre.

4. One of the officers, PC Soo, testified that after he had taken up a position outside the entrance he saw one of the attackers armed with a knife full face on for 2 to 3 seconds. He was attracted to him owing to the fact that his shirt was much lighter than that of the others, describing it as having some blue on a white background. He then saw him slash one of the victims. At this stage PC Soo was standing about 12 feet from the attacker and had a view of his profile for 3 or 4 seconds. He shouted "Stop or I will shoot", but the attacker did not respond to this command. Instead, he slashed at the victim a second time. It was then that PC Soo fired one shot at the attacker. However he was unable to see whether he had hit him, for at that moment he was forced to turn his attention to another attacker holding a knife and coming at him from his left. He pointed his revolver at this second attacker and ordered him not to move. With that the second attacker, who was the 1st accused, froze, and, on being ordered to drop his knife, did so, and surrendered. PC Soo then handcuffed him and handed him over to a uniformed officer who arrived at the scene.

5. On 24th August, eight days after the incident, PC Soo attended an identification parade at which he picked out the applicant from a line up of nine men as the attacker at whom he had fired the shot.

6. A second officer, PC Lee, testified that after he had taken up a position outside the video centre he saw the face of the leading attacker for 2 to 3 seconds as he emerged from the video centre. He then turned his attention to other attackers who were slashing victims. Following shouts of "Police. Don't move." from PC Lee and other members of the team, one of the leading attackers holding a knife in his upraised hand rushed at PC Lee. PC Lee opened fire at him, but he was unable to say whether he hit his target. However, the shot caused the assailant to run off to the officer's left. PC Lee then set off in pursuit of another attacker and, after a chase, shot him as he was slashing a victim. This was the 2nd accused. On 24th August PC Lee attended an identification parade and identified the applicant as the first attacker he had seen emerging from the video centre armed with a knife. The other two officers also gave evidence, none of which was directly relevant to the applicant. It emerged however that the police fired a total of 6 shots during the course of these events.

7. There was also evidence that about an hour and a half after the incident the applicant was admitted to Queen Mary Hospital suffering from wounds which the attending doctor said were consistent with his having been shot. There was a flesh wound which was consistent with a bullet having completely penetrated the upper part of the applicant's right arm, and another flesh wound which was consistent with a bullet having entered the adjacent area of his back and having emerged approximately nine centimetres, from the point of entry in his back. The wounds could have been caused by a single bullet passing through the applicant's arm and then through the adjacent area of his back.

8. A search of the applicant's home on 17th August resulted in the discovery of a bloodstained shirt in the right sleeve of which there was hole with a deposit of lead around its perimeter and which a ballistics expert testified was a bullet hole. The position of this hole was consistent with the end of the through wound on the outer aspect of the applicant's right arm. There was an exit bullet hole on the inner side of the sleeve consistent with the other end of the through wound on the inner aspect of his arm. There were also two holes at the back of the shirt, each of which was in a position consistent with the two linked wounds in the applicant's back. The expert also testified that it was a common phenomenon for the same bullet to pass through the same person twice and that it was quite possible that this had occurred to the person who had been wearing that shirt. The only other reports of police having opened fire at around the time of the incident were one in July and another a week after the incident.

9. At the end of the Crown case Mr. Cosgrove, who appeared for the applicant both at the trial and at the hearing of this application, unsuccessfully submitted to the judge that he should withdraw the case against the applicant from the jury and direct an acquittal on all charges. His submission was based on the contention that the only evidence against the applicant consisted of the fleeting glimpses that PC Soo and PC Lee had of the man whom they later identified the applicant to be. The applicant declined to give evidence and called no witnesses to testify on his behalf.

10. The grounds of appeal argued by Mr. Cosgrove were really twofold; first, the judge erred in rejecting the submission that the case be withdrawn from the jury and, second, that, the case having been left to the jury, the judge failed to direct their attention to certain aspects of the evidence which tended to reduce the quality of the identifications by PC Soo and PC Lee of the applicant as one of the attackers.

11. In making his opening submission to this court Mr. Cosgrove advanced the same argument that he had presented to the judge, namely, that the only evidence against the applicant was that of the fleeting glimpses PC Soo and PC Lee had had of an attacker at the scene and their subsequent identifications of the applicant as that man. When we indicated to him that in the light of the hospitalisation of the applicant an hour and a half after the incident suffering from gunshot wounds the location of which matched the gunshot holes in the shirt found at his home, Mr. Cosgrove initially conceded that this evidence gave rise to the irresistible inference that the applicant was present at the scene. He then amended that concession to one that an inference could be drawn from that evidence that the applicant was there.

12. However, notwithstanding this evidence, Mr. Cosgrove contended that photographs taken at a re-construction of the incident conducted pursuant to an investigation under Police General Orders, indicated that the shot fired by PC Soo could not have been the one which wounded the applicant.

13. There was ballistics evidence that the bullet from PC Soo's revolver was found in a vending machine inside a shop premises and that it had penetrated a metal shutter immediately in front of the machine at the entrance to the shop. Mr. Cosgrove established by reference to the photographs that, if the shot had been fired by PC Soo from the position in which he demonstrated he was standing at the relevant time and, if the applicant had been bent forward chopping a victim at the position demonstrated by an actor, a bullet fired by PC Soo and hitting the applicant would have passed considerably to the left of the hole in the shutter and could not have lodged in the vending machine.

14. He also pointed to opinion evidence from the ballistics expert that, because of the circular shape of the hole in the shutter, it was possible, but unlikely, that the bullet would have passed through a human body first. The expert explained that in such circumstances he would expect the bullet to be slightly deformed and would be unlikely to make a perfectly shaped hole in the shutter. He said, however, that he could not be sure about this and that to a certain extent the shape of the hole in the shutter would also depend on the distance between the person firing the shot and the person through whom the bullet passed.

15. In support of his contention Mr. Cosgrove cited Junior Reid v. The Queen [1989]3 WLR 771 a case in which the Privy Council stated that, having regard to the impossibility of reconciling, with medical and other evidence, the testimony of a witness as to how a shooting occurred, the trial judge should have withdrawn the case from the jury at the conclusion of the prosecution's case and have directed an acquittal. But the facts of that case were vastly different from those here. Plainly, it was impossible to reconcile the evidence of the witness in Junior Reid with known facts, but in the present case we do not accept that on a reasonable analysis of the evidence there any such impossibility.

16. We cannot but agree that if PC Soo and the applicant had been standing precisely in the positions shown in the photograph taken at the demonstration and said by PC Soo to have been those in which they were standing, the bullet fired by him and found in the vending machine could not have penetrated the applicant. However, we are of the view that it is quite unrealistic, bearing in mind the fluid nature of the scene at the time of the incident, to treat the positions depicted in the photograph and demonstrated by PC Soo as anything more than reasonable approximations of where the two men stood at the moment PC Soo opened fire.

17. If each man had been standing approximately one pace to his left of the position in which he is depicted in the photograph, a straight line could be drawn from PC Soo through the applicant and the shutter to the vending machine. Moreover, it was not the evidence of the ballistics expert that it was impossible for the bullet from PC Soo's revolver to have made a spherical rather than a keyhole shaped hole in the shutter after having penetrated the soft tissue of the applicants upper arm and back.

18. In our view, looking at the evidence as a whole, the judge was right to reject the submission. Although it is not relevant to this ground of appeal, we think we should here say that the judge gave an extremely fair presentation of this aspect of the evidence to the jury in his summing up. Indeed, Mr. Cosgrove did not suggest otherwise.

19. We turn now to a consideration of the ground alleging that the judge failed to draw to the jury's attention matters which tended to reduce the quality of the identification evidence given by PC Soo and PC Lee.

20. Mr. Cosgrove contended that the judge should have reminded the jury of two matters that arose from the evidence of PC Lee; first, that the man who PC Lee identified as the applicant was at no time standing still during the course of the incident and, second, that PC Lee was unable to describe the person at whom he had fired a shot notwithstanding that he had had that person under observation for a longer period than that for which he had viewed the applicant.

21. We do not think there is any merit in these criticisms. The judge twice reminded the jury that the scene was chaotic and confused. On one such occasion he said:

            "You had circumstances which the officers concede were chaotic; where it was confused: where there were groups in fear and groups of people in attack, running; where people were trying to exit the video games centre in fear of being injured."

22. It is true that the judge did not specifically tell the jury that the attacker said to be the applicant was not standing still, but we think that the passage we have just quoted would have had the effect of reminding them of the evidence of the officers in that regard. It seems to us highly unlikely that there was any danger that the jury would have been ignorant of the simple fact of human experience that it is more difficult to see the features of a moving person than those of one who is stationary.

23. As to the second point, the evidence was not only that the applicant was wearing lighter clothing than the others, but that he was at the head of the attackers as they emerged from the video centre. There was no evidence that the man at whom PC Lee fired his revolver was wearing clothing so distinctive from that worn by the others that he should have paid particular attention to it.

24. Mr. Cosgrove also contended that the judge should have reminded the jury that in respect of the testimony of PC Soo there were two occasions before the identification parade when that officer said that he would be unable to identify the face of the person whom he later identified at the parade, and secondly, that although he could recall that the applicant was wearing a shirt with some blue on a white background, he was unable to give any details of the clothing of the 1st accused, a man whom he arrested at the scene.

25. Although we consider that it would have been desirable for the judge to have mentioned that PC Soo had expressed the opinion that he would be unable to identify the attacker at whom he fired the shot, we think that this one omission in a summing up in which the judge repeatedly stressed the danger of convicting on identification evidence was of no real consequence. We have already dealt in the context of the testimony of PC Lee with the evidence that the applicant's shirt was of a lighter colour than that of the other persons at the scene. We do not consider that the inability of PC Soo to describe in court the clothing the 1st accused was wearing on the night of the incident some nine months earlier, was a matter of which the judge should have reminded the jury. There was no evidence that that clothing was distinctive.

26. Mr. Cosgrove further submitted that the judge erred in failing to warn the jury that, since no explanation could be offered as to how and by whom two persons had been shot dead and another wounded as a result of gunfire from the other officers in the team, they should consider whether the applicant might have been struck by a stray or ricochet bullet. We do not think that the judge can be criticised for not referring to this possibility. He clearly dealt with the ballistics expert's opinion evidence. The clear inference was that, if the bullet fired by PC Soo was not the one which struck the applicant, it must have been one fired by one of the other officers. In the light of that evidence and the testimony of PC Soo that he did not know whether the bullet he fired actually hit the applicant, we do not think that the jury could reasonably be said to have been unaware of the alternative possibility. The judge was not required to treat them as if they were devoid of common sense.

27. Finally, on a consideration of all the evidence, and bearing in mind that, since the applicant declined to testify, the jury were entitled more readily to draw the conclusions open to them on that evidence, we do not accept Mr. Cosgrove's submission that the verdicts were either unsafe or unsatisfactory.

28. The applications for leave to appeal were therefore refused.