THE QUEEN v. CHEUNG LEE PING

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J U D G M E N T

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Power, J .A.:

1. The applicant faced two charges, of wounding with intent. The first charged that she, together with persons unknown, on the 22nd of June 1987 at 272, Shanghai street, Kowloon, did unlawfully and maliciously wound KWOK Ping-kuen with intent no do him grievous bodily harm. The second charge was in the same terms except that the victim was a person named KWOK Ping-kwai. Having been found guilty, after trial in the District court, on both counts she now seeks leave to appeal against chose convictions.

2. The facts which were accepted by the trial judge are set out in his Reasons for Verdict as follows. He was satisfied that when the victims with others were in the premises in Shanghai Street at about 3.30 a.m. on the morning of 22nd June 1967 someone rang the doorbell and that, it being answered and the door opened, the defendant was seen with two men behind her; thereupon at least ten people rushed into the room, one of whom was armed with a long object in a billiard cue cover; none of the others were armed but once insider the flat some seized chairs or stools and used them as weapons. The judge was satisfied that the victims were assaulted and struck with the long object and also with fists and that they suffered wounds from these assaults and that the attack having lasted for several minutes ended when mention was made of calling the police.

3. The judge went on to find that, although the applicant

"did not take part physically in the attack.... she did give directions to the attackers and clearly she was not only present; but she influenced and encouraged the attack by her words and actions."

He returned to his matter later in his reasons saying:

"More than (mere presence) she also participated by directing the actions of those who carried out the physical attack. Clearly here was a common design and that was to inflict bodily harry on PW2 and his friends."

Further he stated when sentending, that the applicant "was in the forefront leading and inciting the attackers".

4. The appeal is upon the following passage in the Reasons for verdict:

"Grievous bodily harm must have been intended in my view or else the long lethal weapon would not have been brought and used, At the very least the attack was done if not maliciously, out of sheer recklessness. So I find the specific intent was established,"

5. Mr. McCoy, who appears with miss Corcoran, for the applicant argues, relying upon this passage that the trial judge erred in law in ruling that the speeific intent of the offence of wounding with intent was satisfied by a finding of recklessness.

6. The trial judge had found, as can be seen from the passage set out above, a specific intent but, it is suggested, this court must, be in doubt as to whether he was satisfied that it was a specific intent to inflict grievous bodily harm; i.e. the intent that had to be established to prove the offence, had been proved. Mr. McCoy goes further, saying that he passage upon which the judge relies shows that he wrongly considered that recklessness was sufficient to establish that intent and that the applicant should only have been convicted of unlawful wounding. He further submits that the application of the proviso would not be appropriate as there has been no finding as to a fundamental element of the offence. He cites the authority of KWAN Ping-pong⁽¹⁾and refers to tae passage from that judgment of Lord Diplock where he said, at p.6,

"A Misdirection as to the onus of proving an essential fact in issue at the trial seldom provides an appropriate case for the application of the proviso. In the instant case the misdirection was as to the onus of proving what was, in effect, the only issue in the case that was seriously contested. The guilt or innocence of the appellants depended on it. In their lordships' view a verdict of guilty based oh this misdirection cannot be other than unsafe and unsatisfactory."

7. It is Mr. McCoy's submission that what we have in the present case is the equivalent of a misdirection as to onus of proving an essential fact in issue. He, however; does concede that while this court is not debarred from applying the proviso it should, in such circumstances, be very slow indeed to do so.

8. It is true chat some confusion is displayed in the passage to which Mr. McCoy refers. Given what the judge had already said it may be that the words "at the very least the attack was done if not maliciously out of sheer recklessness" are surplusage and were intended to convey no more than that the attack was carried out with a recklessness as to who might be injured.

9. If, however, the passage was not surplusage this is, in our view, clearly a proper case for the application of the proviso. There can have been no miscarriage of justice as we are quite satisfied that any jury properly directed upon the facts must have come to a conclusion of guilt. We rely, when saying this, particularly upon the findings that a weapon was brought, that it was a weapon capable of inflicting wounds that it was used and that the applicant influenced, encouraged and directed those who carried out the attack by her words and actions. The application for leave to appeal against conviction is refused.

(1) (1979) H.K.L.R. 1