HKSAR v. CHEUNG PING KWONG

CACC56/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO.56 OF 1999

(ON APPEAL FROM HCCC NOS.120 & 134 OF 1998)

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J U D G M E N T

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Nguyen J (giving the judgment of the Court) :

1. The applicant was convicted by a jury on 8 January 1999 of an offence of wounding with intent. He was sentenced by Bokhary J to five years' imprisonment on 12 January 1999. The prosecution's case was that on the night of 30 October 1997, outside a games centre in Tai Po, a number of persons including the two accused persons, of whom the applicant was the 2nd accused, participated in a joint enterprise of attacking and chopping the victim, and as a result, the victim was seriously wounded.

2. The prosecution's case against the applicant comprised of an admission that he had made to the police upon his arrest, when he signed a record of interview, in which it was recorded that he had said to the police officer after he had been cautioned for this offence : "Ah Sir, in this case I didn't take part in chopping 'Sai Yee', I was just responsible for driving". The victim's evidence was that, at about 9:30 pm or 9:40 pm that evening, he was sitting outside the games center chatting with a number of friends. Suddenly, he was attacked with knives by three to five persons. He tried to run away but he was surrounded by several of them and he was chopped on his head, back, abdomen and upper limbs, and he fainted. He underwent surgery in a hospital and received various forms of medical treatment. At the time of the trial, he was still receiving physiotherapy for his hand. He suffered multiple chop wounds over his limbs, abdomen and scalp. He was hospitalized for just under one month and it was expected that he would suffer some permanent disability.

3. The applicant seeks leave to appeal his conviction, and on his behalf Mr Allan has advanced three grounds. The first is that the judge failed to direct the jury that even if they disbelieved the evidence of the applicant, that by itself did not entitle them to infer guilt. The passage which counsel complains about is at page 29 line B where the judge had said :

"Similarly, if you think that the 2nd accused's account in the witness-box is true or that it is reasonably possible that it is true, then you would of course find him not guilty. On the other hand, if you feel sure that his account in the witness-box is not true, then the 2nd accused's first statement Exhibit P40, enables you to find, if you see fit, that the 2nd accused was a party to a joint enterprise to attack and wound Mr TSUI and, therefore, to convict him if you see fit."

Counsel's complaint is that, by the way that particular passage was worded, the jury had not been told by the judge, that it did not follow that even if they thought that the applicant had lied in the witness-box, they should necessarily find him guilty of the offence charged.

4. In our view, the passage complained of may have been somewhat taken out of context, because prior to that particular passage, the judge had told the jury on a number of occasions in clear and unambiguous terms that they had to be satisfied beyond reasonable doubt that the statement had been taken in circumstances free from any improprieties. She also told them that if they were not sure of that matter, then they should ignore that statement in so far as it implicated the applicant. This was made abundantly clear to the jury and the jury could not have been under any illusions that the legal position was that if they had any reasonable doubt about whether the statement had been taken in the circumstances that the police officers said that it was, then they would be entitled to ignore that particular statement.

5. It would have been better, we feel, if the judge had said that even if they thought that the applicant had not told the truth in the witness-box, it did not necessarily follow that they would convict him. However, we feel that, taking the summing up as a whole, it must have been clear to the jury that that was the legal position and that was further enforced by, in the passage complained of, the judge saying "if you see fit" after she had referred to the applicant's first statement. She said "the 2nd accused's first statement enables you to find, if you see fit, that the 2nd accused was a party to a joint enterprise to attack and wound Mr Tsui and, therefore, to convict him if you see fit". We feel therefore that this ground cannot succeed.

6. The second ground advanced by Mr Allan is that the judge failed to direct the jury on the significance of the applicant's defence witness, who was the younger sister of the applicant's girlfriend. She had given evidence before the jury and she was the last witness to be called. As the judge said in her summing up, the jury must have had a very fresh recollection of that witness' evidence since she was the last witness called. The judge did deal with the gist of that witness' evidence at the commencement of her summing up. The complaint by counsel is that she did not then proceed to tell the jury the significance of that witness' evidence. Counsel himself has not been able to pinpoint to us the significance of that witness' evidence. There was no clear evidence by the witness that the people who had gone round to the flat and made the enquiries of her were in fact police officers, or that they were the same police officers who gave evidence at the trial. The significance, if any, of that witness' evidence must have been referred to the jury by counsel then acting for the applicant. We feel that it was not the task of the trial judge to have to point out the significance of this witness' evidence to the jury. We feel that when she asked the jury to bear in mind what counsel had said, and when she asked them to give it such weight or such significance as they thought appropriate, that was sufficient to tell the jury that the witness' evidence, as with all other witnesses' evidence, had to be considered by them in the course of their deliberation.

7. The 3rd ground advanced by counsel is that the judge failed in her summing up to the jury to put properly, or at all, the applicant's case on the general issue to the jury for their consideration.

8. Mr Saw, SC, appearing for the respondent, submitted that this was a one issue case. The one issue was whether the statement which the prosecution was relying upon was made by the applicant, and if so, was it true? The police officers had given evidence about the circumstances under which that statement was obtained. The applicant had given evidence on that special issue. His evidence on that special issue was gone through in some detail by the judge in her summing up. His defence on the general issue was simply that he was not present at the scene of the attack, he was elsewhere. He was, however, unable to recollect with any precision where he was and what he was doing on the night of the incident. He did mention to the jury a routine which he said he would normally follow on a working day which was, if he was not at home, to go out with his girlfriend to a shopping arcade nearby.

9. We feel that it might have been helpful to the jury if the judge had mentioned that to the jury in her summing up. However, the applicant gave that evidence very shortly before addresses by counsel and before the summing up. That evidence would still have been very fresh in the jury's minds. The judge did deal with that evidence in a summary fashion when she said in dealing with his defence at page 28 line J :

"In the witness-box, the 2nd accused denied that he took any part in the chopping of the victim and that he never said the words contained in his first statement, ..."

10. We are of the view that the jury must have had at the forefront of their minds what the applicant's defence was to the charge. It must have been clear to them that his defence was that he never made that admission attributed to him and he was not present at the scene. In the course of the judge's summing up, it was made abundantly clear to the jury that the onus was fairly and squarely on the prosecution to prove beyond a reasonable doubt that the statement had not only been made by the applicant, but was also true. About that, there could have been no doubt in the jury's minds. We therefore feel that even though the judge had not mentioned to the jury the routine that the applicant said he had, in this particular case, it did not matter because as we said earlier on, that evidence must still have been very fresh in the jury's minds.

11. In the circumstances, we feel that that ground cannot succeed either. The application for leave is dismissed.