HKSAR v. GURUNG SWATANTRA

CACC 126/2017

[2018] HKCA 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 126 OF 2017

(ON APPEAL FROM DCCC NO 746 OF 2016)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  The applicant faced a single charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 200. On 16March 2017, following a trial before HH Judge Casewell (“the judge”), the applicant was convicted and, on 5 April 2017, sentenced to 30 months’ imprisonment.

2.  On 4 May 2017, the applicant filed a Notice of application for leave to appeal (Form XI), and he now seeks leave to appeal against both his conviction and sentence.

The trial

The prosecution case

3.  In the early morning of 1 January 2015, PW1 and his friends were celebrating at a Club frequented by Nepalese called “Volt” in Lan Kwai Fong in Central, Hong Kong (“the Club”).  At shortly after 4 am that day, a group of about eight or nine young Nepali and/or South-Asian males including the applicant entered the Club.  They approached PW1, who is also originally from Nepal and was a customer at the Club, and insulted him with foul language.  PW1 was then slashed on the side of his face with a bladed object and stabbed in the back near the shoulder by two people.  The group, which included the applicant, then assaulted PW1 by kicking and hitting him. After the attack, which took a very short time, the gang of men left the Club.

4.  The prosecution’s case was that the applicant was one of the group and had participated in a joint enterprise to wound PW1 with intent to do him grievous bodily harm.  It was not disputed that the applicant had been present with a group of men at the material time.  CCTV recordings showed him waiting for the lift at the ground floor of the Club, together with “a group of five or so other South Asia males”[1]. The applicant was also seen at this stage to be holding a long shiny object and hiding it within his clothing[2].  When the group departed from the Club, CCTV recordings captured the applicant taking out the long shiny object and striking the door of the lift with it[3]; he was further seen to be brandishing the object in order to prevent others from entering the lift[4].

5.  PW1 testified that he had seen the applicant before the attack at parties in Lan Kwai Fong and at the Club itself.  Although the lights of the Club were dim at the time, PW1 said he was able to look directly at the face of the applicant during the attack and recognise him as someone with whom he was on “nodding terms”[5]. PW1 was subsequently able to find the applicant’s photograph from a social media platform and hand it to the police.  He later identified the applicant as one of his assailants at an identification parade held in October 2015. However, PW1 could not identify the applicant at court because of the lapse of time since the incident.

6.  As a result of the attack, PW1 suffered “a deep 10 centimetre facial laceration with active spurter surrounding the right pinna and 1 centimetre laceration to the right shoulder”[6], for which he received a total 11 stitches.

The defence case

7.  The applicant elected not to testify at trial. The defence case, however, was that PW1 was mistaken about the applicant’s involvement in the attack due to the dim lighting, the generally confused situation, and the violence and shock of the attack.  It was also put to PW1 that he had consumed alcohol that night and had therefore somehow confused the applicant’s acknowledged presence inside the Club with participation in the attack.

8.  The issue in the case, therefore, was whether PW1’s identification of the applicant as one of his assailants was sufficiently reliable to discharge the standard of proof in a criminal case.

9.  In his video recorded interview with the police, the applicant admitted his presence at the Club at the material time.  He also admitted that he entered the premises with a group of men shortly before the assault took place.  The applicant, however, denied participating in the fight, although he had tried to mediate.  He said he did not know how PW1 was injured[7].  At the time, he was talking with a friend of PW1’s and, on seeing the ensuing fight, the applicant went over to separate the parties.  However, he admitted that he had been given a stick after the fight, which he subsequently threw into an alleyway near the Club.

Reasons for verdict

10.  The judge, having identified the issue as one of the correctness and reliability of the identification, warned himself that the recognition of friends or acquaintances could be convincing but nevertheless mistaken.  He noted the need to examine closely the evidence in support of the identification.

11.  The judge reminded himself that the lightning conditions in the Club were dim and that the incident happened in the early hours of the morning, occurred over a short period of time and involved multiple persons.  Accordingly, the situation was confusing and PW1’s opportunity to identify anyone limited.  He bore in mind that PW1 had subsequently been unable to recognise anyone in court.

12.  Having considered the whole of the evidence, the judge found that PW1 was an honest and reliable witness.  He accepted that PW1 had failed to identify the applicant, given the significant time which had elapsed since the incident.  He considered that PW1 recognised the applicant and was able to look directly at his face during the assault.  It was entirely possible to make a positive identification in such circumstances.  In addition, the applicant had made admissions that he was with other men inside the Club at the time, and was also seen on CCTV to arrive at, and leave, the premises carrying a weapon resembling a knife.  The judge considered that when these factors were taken together, they supported the correctness of PW1’s identification.

13.  Of the assertion made by the applicant in interview that he had tried to separate the parties during a fight, the judge noted that PW1 made no mention of any such thing in his evidence.

14.  The judge found that the evidence clearly showed that the applicant was present and was involved in the assault and wounding of PW1, which was clearly done with intent.  He actively participated in a joint enterprise to assault and wound PW1 with weapons.

Mitigation

15.  The applicant was 23 years of age at the time of sentence.  He was single and living with his mother and siblings in Hong Kong. He had one previous conviction for selling/supplying liquor without a licence in 2015, for which he was fined HK$500.  He had completed his secondary education in Nepal in 2009 and migrated to Hong Kong in 2011.  Thereafter, the applicant had been in gainful employment, first as a construction worker and, since 2003, as a scaffolding worker earning up to HK$20,000 per month.

16.  It was submitted that the applicant had on the evidence played only a supporting or encouraging role in the attack by using fists and kicks.

Reasons for sentence

17.  The judge indicated that there were no guidelines in respect of sentence for the present offence, but noted that the general sentencing range would fall between 3 and 12 years’ imprisonment after trial depending on various factors such as the nature of the assault, the weapon(s) used, the injuries sustained by the victim, whether the injuries resulting in any residual disability, and the role of a defendant.

18.  In determining the appropriate sentence, the judge noted that there were features which would aggravate the sentence, namely “the use of weapons capable of cutting the skin”[8] and the fact that the attack was carried out by a group of men[9], which was more serious than an attack perpetrated by an individual.  Having considered the aggravating features as well as the mitigation put forward, in particular the fact that the applicant played a “supporting and encouraging” role and was not the one who actually inflicted the wounds[10], the judge imposed a sentence of 30 months’ imprisonment.

Grounds of appeal against conviction and sentence

19.  In his Form XI, the applicant did not advance any substantive grounds of appeal.  In a subsequent undated letter filed with the Court on 26 September 2017, the applicant simply expressed his request for legal aid and that he has to help his mother to look after his younger sister and brother.  In addressing me this morning, it is apparent that the applicant’s main concern is the length of his sentence.  He has continued to advance no grounds of appeal against conviction.

The respondent’s reply to the grounds of appeal

(Conviction)

20.  Mr David Chan, on behalf of the respondent, submits that the judge correctly and adequately warned himself in accordance with the guidelines in R v Turnbull[11]. Furthermore, the judge correctly approached the issue of identification by considering the totality of the evidence in order to see if there was evidence which supported, or detracted from, the identification.

(Sentence)

21.  In relation to sentence, Mr Chan submits that the judge was correct in identifying the factors relevant to the determination of a proper sentence.  Although the judge appeared to accept that the role of the applicant was one of supporting and encouraging the group rather than inflicting injuries with a weapon, he contended that this should not have any bearing on sentence, since the courts draw no distinction between those who actually wound the victim and those who take part in a joint enterprise by encouraging others to inflict such violence.

22.  Mr Chan further submitted that the judge did not take into account, as he should have done, that this was clearly a premeditated attack in which a gang had grouped together in order to enter the Club with weapon(s).  It was not, on the judge’s findings, a fight which erupted on the spur of the moment and then got out of hand, with the participants resorting to nearby objects which they then used as weapons.

Consideration

23.  It is clear from the way the judge addressed and dealt with the various circumstances bearing on PW1’s identification of the applicant that he had in mind the general concerns about identification evidence expressed in R v Turnbull.  It is, however, worth remembering that the Court in R v Turnbull was in fact dealing with three different cases which raised the same point in a consolidated appeal.  Having set out the principles which should govern judges and juries in cases which depend wholly or substantially on identification evidence, the Court said, at 229:

“When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal …”

However, the Court added:

“unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification…” (Emphasis supplied)

A little later, in explaining what might amount to supporting evidence, the Court said:

“In our judgment odd coincidences can, if unexplained, be supporting evidence.”

24.  When the Court then proceeded to examine the facts in the three individual appeals before it, the Court found, at 234, that the quality of the identification in Turnbull’s case “could not be said to have been good”, but there was supporting evidence which clearly went “to support the correctness of [the officer’s] identification of Turnbull”.  The appeal was accordingly dismissed.

25.  In the second appeal, concerning a man called Roberts, the Court found, at 236, that:

“…the quality of the identifications was not good, indeed there were notable weaknesses in it and there was no evidence capable of supporting the identifications made.” (Emphasis supplied)

The Court accordingly held the verdict to be unsafe and unsatisfactory and allowed Roberts’s appeal.

26.  In the third appeal, involving a man called Whitby, the Court found, at 238:

“Clearly the quality of the identifications in this case was very poor.”

But it then immediately went on to ask:

“Was there any supporting evidence?”

Having then assessed each piece of potential supporting evidence, the Court concluded, at 239:

“In the result we think that the quality of the identification evidence in (Whitby’s) case was very poor and that there was no evidence of the nature to which we have referred put before the jury which could be said to support the correctness of the identifications.”

Whitby’s appeal was accordingly allowed.

27.  Thus, it is clear that if there is a weakness in the identification evidence in a particular case, judges are enjoined to examine whether there is any supporting evidence capable of supporting the correctness of the identification.  The Court in Turnbull also said, at 230, that:

“The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.”

28.  In the present case, the judge considered all the evidence in order to determine whether PW1’s identification was reliable.  He found that there was other evidence which supported the reliability of PW1’s identification, notwithstanding that he had failed to follow up his positive identification at an identification parade by identifying the applicant in court.  In that analysis, his admissions to the police plainly put the applicant at the scene, while the CCTV recordings depicted him with an implement which could have been used as a weapon both before and after the incident.  The judge found that these and other factors “taken together support PW1’s identification and description of the defendant’s actions that evening”[12].

29.  The further point to note is that the applicant did not give evidence in circumstances which clearly placed him at the scene in a compromising position.  That too was a circumstance which supported the correctness of PW1’s identification.  As the Court in Turnbull said, at 230:

“…odd coincidences can, if unexplained, be supporting evidence.”

Despite the compelling nature of the case against the applicant, there was no evidence from him to explain it.

30.  I can see no reasonably arguable grounds of appeal against conviction.  Leave to appeal against conviction is accordingly refused.

31.  In respect of sentence, the applicant was found guilty of wounding with intent to do grievous bodily harm.  Given that he was part of a gang of men who deliberately formed together and then went up to the Club, that when he did so, he was armed with an object capable of being used as a weapon, which he later used to brandish and dent the lift door, and that serious wounds were caused to the victim’s face less than 2 inches from his eye, notwithstanding that the applicant was only found to have played a supporting role in hitting and kicking the victim, I have to agree with Mr Chan that the sentence of 30 months’ imprisonment was very lenient indeed.  On those facts, the applicant could not have complained had the sentence been one of 4 years’ imprisonment.

32.  The applicant’s personal circumstances come nowhere near providing mitigation for someone who was prepared to involve himself in a gang attack with dangerous weapons on a defenceless person in a place to which the public had ready access, in an area which is frequented by locals and tourists alike in large numbers.  The primary consideration in sentencing for such an offence must be public deterrence.

33.  I can find no reasonable grounds for the appeal against sentence.  In view of the compelling nature of the evidence against the applicant and my remarks about the sentence he received, I should give the applicant this warning.  He has the right to renew his application for leave to appeal against either conviction or sentence or both to the full Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of either or both applications.