HKSAR v. YEUNG WAN HON

CACC 163/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 163 OF 2008

(ON APPEAL FROM DCCC NO. 818 OF 2003)

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REASONS FOR JUDGMENT

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Hon Beeson J (giving the judgment of the Court):

1.  On 2 April 2009 we dismissed this Applicant’s application for leave to appeal and advised that we would give our reasons at a later date.

2.  These are our reasons.

3.  The Applicant applied for leave to appeal out of time against his conviction by Judge Yau on 3 charges in the District Court.  They were Charge 1, wounding with intent; Charge 2, causing grievous bodily harm with intent and Charge 3, false imprisonment.  The Applicant had pleaded guilty to a fourth charge, failing to surrender to lawful custody.  The Applicant was sentenced to a total of 3½ years’ imprisonment on the four charges.

4.  The facts which emerged at trial were contained in the evidence of the sole prosecution witness, Mr Zhang Guoliang (PW1), who was the victim in Charges 2 & 3.  He was a mainlander visiting Hong Kong and he stayed with a man he referred to as “Uncle Chan” (the victim of Charge 1) in a hut at Tai Po, in the New Territories.

5.  The Applicant was alleged to have led a group initially of 2 or 3 men, which increased after a short time to about 20 men, to the hut to confront the victim and Uncle Chan over money that he accused them of having stolen from an illegal petrol station business.  When he denied theft PW1 was subjected to intermittent beatings inflicted with punches and kicks over a period of about 5 hours (Charge 2).  He was also hit on his back with a hammer through the thickness of a book, presumably to minimise bruises and marks.  As a result PW1 suffered serious injuries.

6.  Uncle Chan was also beaten by the group when he refused to admit having stolen the money; he too was injured (Charge 1).  The Applicant then arranged for PW1 to be driven by car to an illegal petrol station.  There PW1 was kept against his will, under threat of further violence from two men who followed the Applicant’s orders and who kept guard over him.  The police rescued PW1 at about 1:14 p.m. the next day after the son of Uncle Chan reported the incident to the police.

7.  The Applicant was arrested on 31 July 2003 and charged with these offences.  On 5 September 2003 he was remanded on bail to appear for trial on 23 October 2003 in the District Court.  He failed to answer his bail on the trial date and a warrant was issued for his arrest.  He surrendered to police on 24 October 2007 having attended for medical treatment at Princess Margaret Hospital.

8.  The Applicant did not give evidence or call witnesses at trial.  The basis of his defence was that PW1 had mistaken him for someone else.  The grounds of appeal, most of which related to the quality of the identification, are summarized below.

9.  It was alleged that the judge:

(1)     failed to reconcile material discrepancies and inconsistencies in PW1’s evidence making his identification unreliable;

(2)     wrongly allowed a dock identification and failed to stop the prosecutor from asking leading questions;

(3)     wrongly assessed the distance between PW1 and Uncle Chan during the period of the beating;

(4)     did not give himself a full Turnbull direction (see R v Turnbull [1976] 3 WLR 445);

(5)     erred in finding PW1’s attention was on the Applicant throughout the incident;

(6)     omitted to reconcile discrepancies, but nonetheless accepted PW1’s evidence as reliable.

10.  In his Reasons for Verdict the judge evaluated the evidence of PW1 with some care.  At paras 11 – 16 inclusive [B 15] he assessed PW1 as a simple man of rather limited intelligence, who genuinely was unable to understand all the questions asked of him; who at times became confused and gave contradictory answers, but who, once the import of a question was clarified, was able to convey his answer.  On the salient points of his evidence, in particular his identification of the Applicant, he was not shaken.

11.  We have read the transcript which supports fully the judge’s assessment of innocent confusion and misunderstandings by this witness.  It is not surprising that PW1 became confused.  Many questions put to him were unclear and his testimony was so peppered with interruptions to clarify questioning or answers, that at times he could hardly have known what was going on.  We wish to make it clear that, Mr Kwan Tong-lee of counsel, who represented the Applicant, was not counsel in the court below.

12.  Certain matters about which PW1 gave evidence were not mentioned in his witness statements and there were some errors in his witness statements which he corrected when examined, or cross-examined.  For example, in one witness statement he had stated that the Applicant was the first person to hit him and repeated that several times when giving evidence.  Eventually he changed that evidence by saying that two men had hit him first, after which the Applicant hit him.  Further, he gave emphatic evidence that the Applicant had driven him, or had been with him, in the car which took him to the illegal petrol station where he was imprisoned.  In cross-examination PW1 corrected that and told the court that the Applicant had instructed some men to drive him there.

13.  PW1 agreed that he had had to rely on his 4 witness statements for some details of the incident.  All those statements had been made within a short time of the incident.  As the events about which he was giving evidence had occurred in 2003, some 5 years earlier, it was not surprising that PW1 needed to refresh his memory.  Overall, the judge found PW1 to be an honest and reliable witness whose mistakes and omissions did not affect his credibility.

14.  The Applicant’s counsel complained that the judge was wrong to find PW1’s evidence was clear and unequivocal, when he acknowledged it contained mistakes and contradictions.  The judge’s Reasons for Verdict show that the judge examined PW1’s evidence carefully and assessed it properly.  While there were discrepancies in PW1’s evidence their effect was peripheral and did not detract from the essential elements which were the basis for the judge’s finding of guilt.

15.  The Applicant’s major point of appeal was that PW1 had mistaken him for someone else and wrongly identified him.  In that context it was submitted that the judge had erred in failing to give himself a full Turnbull warning, made necessary because the identification was made under difficult conditions.  However, the evidence showed that this was not a “fleeting glance” situation, nor were there serious difficulties with the conditions.  PW1 had had the Applicant in his sight over a period of about 5 hours.  For the first few hours he had been able to view the Applicant in daylight.  When darkness fell fluorescent light tubes and light bulbs attached to the hut and the shed provided what PW1 described as “bright” lighting for the area.

16.  The evidence of PW1 was that he had been beaten at intervals.  No doubt his attention was distracted from the Applicant at those times, but nevertheless he had had face-to-face conversations, at close quarters, with the Applicant during a 5-hour period, both in daylight and artificial light.  Further, the Applicant had visited him and spoken to him on two occasions at the illegal petrol station.  PW1 said he had kept his attention focused on the Applicant because he was the man he believed was directing events.

17.  PW1 gave evidence that he and the Applicant were about 2 metres apart during the 20 odd minutes when he witnessed members of the group beating Uncle Chan.  The judge in his Reasons for Verdict recorded that PW1 had said that 2 metres was the distance between himself and the Applicant during the whole of the 5-hour period.  That is a misleading paraphrasing of PW1’s evidence, but the error is not significant.

18.  PW1 said the beatings took place in a small open area outside Uncle Chan’s hut.  The photographs of the area [Exh. P1] show that it was not large.  It was bounded by the 3 steps up to and the patio area outside Uncle Chan’s hut; by a container shed nearby and also by the opening to the access road.  PW1 described his conversations with the Applicant as having taken place at a distance of 1 metre or less [T-PW1 page 32 N-P], or at a distance of two metres or less [T-PW1 page 43 M-P].  Throughout the period of his own and Uncle Chan’s beatings PW1 referred to his having witnessed events at a close distance.

19.  PW1 and the Applicant, whom he believed to be the leader of the group, or who, from his behaviour had acted as such, had spoken face to face during the 5-hour period.  At the illegal petrol station, at about 1:00 a.m. on 31 July 2003 and again at dawn the same day, he and the Applicant had spoken again at close quarters.  The judge was entitled to take those points of contact into account when assessing the reliability of PW1’s evidence about what he had seen and heard.  Overall, the nature of the assault and its length would mean that the attention of PW1 would have been directed to the Applicant.

20.  Five days after the events he described, PW1 attended a formal Identification Parade at which he positively identified the Applicant.

21.  It is quite clear that the judge, as a professional tribunal, was very much aware of the factors of which he had to be sure when he considered the quality of the identification.  At paragraphs 16, 17 and 18 of his Reasons for Verdict [B18] he set out specific findings on matters relating to the identification.

22.  Another allegation [Ground 3(b)] was that the judge had allowed PW1 to identify the Applicant in court.  From the tenor of his submission on this point, it appeared that counsel for the Applicant believed that this constituted an improper dock identification.  It was not.  It was an Admitted Fact [B11 – para 3] that PW1 had identified the Applicant at a formal Identification Parade and the prosecutor was entitled to confirm that in court.  The judge did not, as counsel put it, “fall into the arena by inviting the prosecutor to make an identification without laying a proper foundation.”

23.  A further complaint by Mr Kwan who appeared for the Applicant had greater substance.  This concerned a number of blatantly leading questions put to PW1 by the experienced solicitor, who prosecuted the trial; leading questions that flowed even in the face of objection by defence counsel and correction by the judge.  While we deplore this matter however, we eschew the suggestion by Mr Kwan that the judge had allowed the prosecutor to advance his case by that means.  The judge upheld all proper objections made on behalf of the Applicant and in certain instances forestalled leading questions being put by the prosecutor.  We have considered the questions complained of in the context of PW1’s evidence as a whole and have satisfied ourselves that the Applicant was not prejudiced by answers obtained as a result of such questions.

24.  The events described by PW1 were traumatic and continued for a lengthy period.  During that time the Applicant appeared to PW1 as de facto leader of the group.  For that reason his attention was directed, for the most part, to what the Applicant did and said.  The Applicant was present throughout the 5-hour period at the hut – then visited PW1 on 2 separate occasions after he had been taken to the place where he was detained.  Given those circumstances it cannot be said that this was a difficult identification.

25.  The judge had ample opportunity to consider and assess the quality of PW1’s evidence.  There is no substance in the Applicant’s contention that the judge erred in dealing with the identification evidence.  Nor can the judge be faulted for the manner in which he reconciled the evidential discrepancies.  Although PW1 became confused at times, ultimately he was unshaken on the salient points of his account.  He was adamant that the Applicant was present; that he had taken part in assaulting him; that he had directed the group of 15-20 men and had arranged for his imprisonment.

26.  Accordingly, this application for leave to appeal against conviction is dismissed.