THE QUEEN v. WONG FU KEUNG AND OTHERS

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J U D G M E N T

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Cons, V.P., delivered the judgment of the Court:

1. The Applicants, WONG Fu Keung, CHOI Kam Fai and KU Yan Sang, respectively the 1st, 2nd and 3rd Defendants below, were convicted by Judge Moylan in the District Court of wounding with intent to cause grievous bodily harm. They seek, now, leave to appeal those convictions.

2. The case against the Defendants depended primarily on the evidence of two Police Constables. At about 5 o'clock one morning in March last year, when on patrol, they were called to an incident near the Wing Fat Coffee Shop, Nanking Street, Kowloon. The evidence of the 1st Constable was that as he ran up he saw three men hitting another who was lying motionless on the ground. As he neared he saw one of the three, who was later identified as the 2nd Defendant, using a bottle to strike the man on the ground, which bottle broke on contact with the man's head. He noticed the other two men held stools with which they were hitting the victim. He arrested the 2nd Defendant.

3. The 2nd Constable said that as he ran up he likewise saw three men in particular, - there was some sort of crowd around the scene -, and of the three, two were holding stools while he was not sure what the third was holding, although he was sure the third was holding something. He saw one of the two men holding stools, who was later identified as the 1st Defendant, hitting the victim with one. For awhile the victim struggled to ward off the blows, but subsequently remained still. In the end that man, the 1st Defendant, threw his stool away, but the other man, later identified as the 3rd Defendant, threw his stool at the back of the victim as he lay on the ground. They then started to walk off. The Constable attempted to arrest both men, and succeeded with the help of a 3rd Constable who, came up at that moment.

4. There was a doctor's, evidence which showed beyond doubt that the victim had been actually wounded.

5. There was also the evidence of a Mr. Wong, who had been originally put forward as a victim a second charge of assault occasioning actual bodily harm. (The judge had found no case to answer in respect of that second charge.) To put it mildly the judge was not impressed with the evidence of Mr. Wong. In effect he obviously found him completely unreliable.

6. None of the three-Defendants gave evidence.

7. The police evidence, if it were accepted as reliable, together with that of the doctor, would inevitably lead to conviction. Today Mr. Iu, who appears here for the Applicants, but not below, has, with the help of a skeleton argument very usefully supplied to us in advance and further comments, taken us to various passages of that evidence which he contends highlight material discrepancies between the witnesses, or between the evidence of a witness and his earlier statement, which the judge failed to resolve, and other factors which cumulatively make the convictions unsafe and unsatisfactory.

8. So far as the discrepancies are said to be between the evidence of the Constables and the evidence of Mr. Wong then, with all respect to Mr. Iu, those are not material or indeed discrepancies at all, having regard to the judge's view of Mr. Wong's testimony. As far as other discrepancies are concerned, the judge found it "wholly understandable that the Constables, who were concentrating on different people, retained memories of different things." The judge is criticised for taking that view but we, for our part, cannot see anything wrong with it.

9. All the matters to which our attention has been drawn today are of a kind which could have been urged upon the judge below in his capacity as the judge of fact. To a very large extent they were, and he considered them. The others are of scant importance. Despite the inconsistencies the judge found the evidence of the Police Constables to be reliable. We see no reason to think that he came to a wrong conclusion. Applications are therefore dismissed