R. v. NGAI KWONG CHIM

IN THE COURT OF APPEAL

1995, No.458
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. On June 20 last year, before Deputy Judge Line in the District Court, this applicant, a man in his early 30's, was convicted on the one charge which he faced, which was of affray, and was sentenced to three years' imprisonment.

2. He now seeks leave to appeal against conviction and sentence.

3. Three men were charged that on September 28, 1993, at the podium of Kwong Fuk Estate in Tai Po, they, together with other persons unknown, unlawfully fought and made an affray.

4. This applicant was the 1st accused. He alone was convicted. No evidence was offered against the 2nd accused. As for the 3rd accused, he was acquitted at the end of the trial.

5. The applicant was convicted on the strength of his admissions to the police when they interviewed him for the second time. Those admissions are contained in a written and signed record of interview.

6. They are to this effect. The affray was one involving a number of men chopping each other with beef knives. The applicant was one of the men chopping and being chopped. He got into that situation in this way. Being the worse for drink and angry with certain men, he armed himself with a beef knife. When he saw those men, he chopped one of them. They retaliated in like manner.

7. Being sure of the voluntariness and truth of those admissions, the Deputy Judge convicted the applicant on the strength thereof.

8. Three perfected grounds of appeal against conviction have been lodged. The read:

"1. The learned Trial Judge failed to fairly assess the Applicant / Appellant's evidence in that the learned Trial Judge took into consideration the postulation which is not supported by evidence that young men who frequented late night cafe society had ready access to stores of weapon (line 13, page 15 of Appeal Bundle) when reconciling the evidence of PW1 with the admissions of the Applicant / Appellant.

2. In assessing the weight to be put on the admissions made by the Applicant / Appellant, the learned Trial Judge failed to fully consider the evidence given by PW1 that it was D2 and D3 who had gone to retrieve what appeared to be two beef knives to chase another man ( last paragraph, page 14 of Appeal Bundle). In the Applicant / Appellant's admissions, it was a fight between the Applicant / Appellant and another man, both using knives.

3. In the premises, the conviction is unsafe and unsatisfactory."

9. As to who PW1 was, that may be taken from this passage in the Reasons for Verdict:

" The only eye witness called for the prosecution was PW1. He was an auxiliary policeman who heard the noise and looked down from his window on the 16th floor. He saw people running about and chasing each other and what he took to be two beef knives. He was not able to see any actual fighting from his viewpoint. He was able to describe the build and clothing of some of those below but was not able to identify any particular person as a participant."

10. One then moves on to this passage in those Reasons, from which passage the matters relied upon in grounds 1 and 2 are drawn:

" A further attack was made on the weight of the interview by seeking to contradict its contents by reference to the evidence of PWI . PW1 said that he saw two men go to a place behind a bush and retrieve what appeared to be two beef knives. The prosecution did not seek to identify these men but cross examination by Dl's counsel adduced evidence to support the inference that it was D2 and D3. Whether the evidence proves that for sure is not an easy question, but I will presume in favour of Dl and for the purposes of this argument that it does so. PW1 testified that he saw these two men with two others chase a man from the scene.

Thus what [counsel for the 1st accused] argues is that the action of D2 and D3 in arming themselves, their chasing a man from the scene, and the cut on the back of Dl's shoulder combine to give support for Dl's evidence and to diminish the weight of the admissions. Are these matters inconsistent with those admissions? I have carefully compared them and the evidence of PW1. I do not find significant inconsistency or inconsistency to a degree that makes me doubt the truth of what was admitted by Dl. D1 says he started the violence with a knife. He said that someone of the other party then used a knife and that they chopped each other. PW1 had been attracted to the window by noise of a kind that indicated fighting and had seen chasing and heard swearing before he saw the two fetch the knives and rush back to what was taking place. The evidence fits together and is not mutually contradictory. It fits together in a way that requires both sides having ready access to stores of weapons, but that causes me no qualms as the criminal courts too often hear of such being available to young men who frequent late night cafe society.

As regards the chase there was no evidence from PW1 to suggest that the person he saw being chased was D1. The evidence tends to suggest that it may not have been him, as D1 had by then taken off his shirt and was naked to the waist, which was something that PW1 did not relate of the fleeing figure though he did relate it of others. Even if it was D1, his failure to set that out in his interview was not particularly significant as by then he had done his chopping and been chopped in return. On his own story D1 was drunk at the time.

The evidence of PW1 did not support the story D1 told me, nor did it diminish the force of the admissions. That was the case on the most favourable view of PW1's evidence, identifying people to suit his argument. The application of Turnbull criteria to his testimony must leave such identifications in grave doubt."

11. As we see it, the Deputy Judge did consider and assess all the evidence before him. And, as we see it, he did not stray beyond the evidence. Using one's common sense and experience in assessing evidence is not straying beyond the evidence.

12. There is nothing in any of the grounds of appeal against conviction. The conviction is neither unsafe nor unsatisfactory. Leave to appeal against conviction is refused.

13. That leaves sentence. The perfected grounds of appeal against sentence lodged read:

"1. The learned Trial Judge failed to take into account the injuries sustained by the Applicant / Appellant, that the affray was not premeditated, and that it occurred at a time when nobody was around.

2. In the premises, the sentence of 3 years' imprisonment is manifestly excessive."

14. What the Deputy Judge said in passing sentence was this:

" A beef knife is a terrible weapon. In drink you went wild with one. You started the violence. The man you attacked received a fractured and lacerated skull. That is grave conduct which must be met with a substantial sentence of imprisonment.

I remember that by your admissions you provided the evidence to convict yourself and that others may have shared your fate if they had been equally frank. On the other hand you have shown no remorse and cannot claim the credit earned by a guilty plea.

There is no mitigation to be found in your character: you have been before the courts on six previous occasions, each time for an offence involving violence.

In your case nothing reduces the sentence of three years' imprisonment that this crime warrants. That is the least sentence I can pass for this kind of attack."

15. It is true that the Deputy Judge did not there make any reference to the injuries sustained by the applicant. But he would not be unaware of them. For example, in his Reasons of Verdict he spoke of the applicant having "received significant injuries."

16. All things considered, we are of the opinion that the Deputy Judge passed a severe but nevertheless warranted sentence.

17. In those circumstances, leave to appeal against sentence is also refused.