HKSAR v. WONG CHI WAI RICKY AND ANOTHER

CACC 29/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 29 OF 2008 

(ON APPEAL FROM DCCC 875 of 2007)

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J U D G M E N T

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  The applicants, Wong Chi-wai, Ricky (“Wong”) and Kwan Kin-wai (“Kwan”) appeared before Deputy Judge William Lam in the District Court on an indictment consisting of the 1^st charge of attempted robbery and the 2^nd charge of assault occasioning actual bodily harm. The applicants pleaded guilty to the 2^nd charge, and were also convicted of the 1^st charge.

2.  In respect of the two charges, both applicants were sentenced to the respective terms of 21 months’ and 12 months’ imprisonment to run concurrently.

3.  Represented by Mr Clive Grossman SC and Mr Jackson Poon, the applicants sought leave to appeal against conviction in respect of the 1^st charge, and against sentence in respect of the 2^nd charge. We refused their applications and these are the reasons.

The Facts

4.  The victim, Mr Cheung Chun-tung, 49 years of age, was at the material time the proprietor of two restaurants, both situated in Kowloon City. At about 3.55 a.m. on 1 October 2006, Mr Cheung was on his way to work when, at Nga Tsin Wai Road, he came across the applicants who tried to bump into him.

5.  Mr Cheung, feeling apprehensive, tried to go to a 7-Eleven store, but was pursued by the applicants. He met a friend who was a butcher and spoke to him briefly outside the 7-Eleven store, and after “the butcher” left, he saw the applicants again at the opposite side of the road.

6.  Mr Cheung tried to avoid the applicants, but was caught up by them. The applicants then assaulted the victim in front of the Bank of China in Nga Tsin Wai Road by punching and kicking his head, chest, face and other parts of this body. Mr Cheung suffered redness on the chest, haematoma on the lips, loosening of teeth and an abrasion on the right forearm.

7.  Mr Cheung said that the injuries on his lip and his left hand were so painful that he was unable to consume solid food or use his left hand for half a month.

8.  A police van happened to pass by and police officers on board, having witnessed the assault on Mr Cheung, chased and eventually arrested the applicants. Wong had $2,147 on his person and Kwan had to retrieve his wallet from his girlfriend who was having a drink at a nearby “Sum Ching Bar”.

9.  The police officers, when attending to Mr Cheung, saw his expensive Tudor watch unbuckled and hanging loosely on his wrist. Mr Cheung complained that Wong had tried to snatch his watch and Kwan had tried to snatch his wallet.

10.  When asked by an officer what had happened, Wong initially kept quiet, and after a pause said someone had tried to steal from them. Under caution, Wong further said that Cheung had tried to steal things from him and so he hit him, but he did not steal anything from Mr Cheung.

11.  Kwan was injured on his right wrist and knee. When asked by a police officer how he sustained those injuries, Kwan said he did not know.

The Prosecution Allegation and Evidence

12.  The assault on Mr Cheung was admitted. The prosecution also alleged that the applicants assaulted Mr Cheung because they wanted to rob him.

13.  According to Mr Cheung, in the course of the assault, his expensive Tudor watch was targeted; as a result, it unbuckled and was hanging loosely on his wrist. Mr Cheung said Wong had tried to remove his watch, but was unsuccessful as he struggled.

14.  Mr Cheung also said he felt Kwan trying to take his wallet from his left trousers pocket, but as he was moving his body around and the pocket was buttoned up, Kwan did not succeed.

The Defence Case

15.  Wong denied the allegation of attempted robbery and testified in his defence. He said he had been drinking at the nearby Sum Ching Bar with Kwan, their girlfriends and others when they ran out of cigarettes. He then went to a nearby 7-Eleven store to buy cigarettes, when he suddenly felt a bump on the right side of his body and someone putting a hand into his trousers pocket where his wallet was.

16.  There was then no one on his right but Mr Cheung was at his left side. Wong said he had an argument with Mr Cheung before returning to the bar to inform Kwan of the incident, saying that he was not sure if someone “had snatched things”.

17.  The applicants then went outside to look for Mr Cheung to confront him, and having found him, Kwan scolded him and chased after him. Wong said that Mr Cheung then attacked them first by pushing Kwan onto the ground. Kwan got up and together with Wong; they assaulted Mr Cheung until the police van arrived.

18.  Wong said he was gainfully employed with a good income, and had no financial difficulty. There was no reason for him to commit robbery.

19.  Kwan did not give evidence in his defence, but called his employer, his girlfriend and her mother to give evidence with a view to showing his good character and that he was also gainfully employed with a decent salary. Kwan did not cross-examine Wong, an indication that he had adopted the same defence as Wong.

20.  Wong had a clear record and Kwan only had a conviction for possession of dangerous drug, for which he was fined $1,000 in June 2006.

The Judge’s Findings

21.  The judge listed the defence’s criticism of Mr Cheung’s evidence, but rejected the suggestion that Mr Cheung was untruthful or unreliable.

22.  The judge concluded that there was no motive for Mr Cheung to lie to wrong the applicants, when they did not know each other.

23.  The judge pointed out that when the police arrived, they immediately saw Mr Cheung’s watch unbuckled and hanging loosely around his left wrist, and that Mr Cheung immediately alleged that the applicants had tried to take his watch and wallet.

24.  The judge found Mr Cheung and the police witnesses to be truthful and reliable.

25.  The judge rejected Wong’s evidence, saying that it was illogical for him to behave the way he did, when he was unsure if Mr Cheung had snatched anything from him and when his wallet was actually still in his pocket.

26.  The judge pointed out that it was Wong who volunteered the word “steal” before any such allegation was put to him by the police. The judge suggested that Kwan’s injuries could have been caused during his attack on Mr Cheung

27.  The judge opined that if the applicants truly believed that Mr Cheung had stolen from Wong and that Mr Cheung had initiated the attack, they would not have fled when the police arrived, but would have invited the police to arrest Mr Cheung for trying to steal from Wong and for attacking Kwan.

28.  In response to the defence’s suggestion that the applicant had been drinking socially shortly before the incident, and “so the scene was not typical of a street robbery”, the judge made the following comments at paragraph 9 of the “Verdict”:

“What is a ‘typical street robbery’ is a question of opinion, but in any event the Defence cannot have it both ways, because if D1 (Wong) says he had felt angry about PW1 (Mr Cheung) having been trying to snatch from him, for him to get D1 (Kwan) to ‘help teach PW1 a lesson, not only by beating him up, but also by snatching his things in return’, if this intention had only arisen at the spur of the moment, if only this angry idea had come to him as he was walking back to the pub, or when he had caught up with PW1, then because of his anger he decided to leave his girlfriend then went with D2 to carry out his intent of ‘giving PW1 a dose of his own medicine’, i.e. attack him and snatch his things, this is indeed Robbery.”

29.  In the end, the judge rejected the defence case and concluded that the applicants did try to snatch Mr Cheung’s watch and remove his wallet.

30.  The judge, therefore, convicted the applicants of the 1^st charge as well.

Grounds of Appeal

31.  Mr Grossman suggested that the judge erred in paragraph 9 of the “Verdict” when he appeared to be saying that Wong said he intended to “snatch things” from Mr Cheung when it was not the defence case at all.

32.  Mr Grossman submitted that Mr Cheung was not a reliable witness because:

(1)    he told the police that before the assault, the applicant had scolded him by using foul language whereas he said in evidence he said there was no conversation at all, and the judge had failed to resolve such inconsistency;

(2)    his description in court of how Wong tried to snatch his watch and how Kwan reached his hand to his pocket was different from the contents of his statement to the police;

(3)    contrary to what the judge found, he did have a motive to exaggerate the incident into an attempted robbery after the applicants assaulted him;

(4)     he refused to give particulars of “the butcher” who could have given evidence favourable to the defence;and

(5)    he was a difficult and obstructive witness when he refused to answer questions relating to his previous convictions, his restaurant business and the identity of “the butcher”.

33.  Mr Grossman contended that the evidence of Mr Cheung in support of the 1^st charge was vague when, according to him, the attempt to take his watch only lasted 1-2 seconds and when he did not actually see the hand, but only felt it reaching to his pocket to get his wallet.

34.  Mr Grossman suggested that the judge should not have relied on “flight” to convict the applicants, when the applicants were caught in the act of assaulting Mr Cheung and therefore the “flight” was not probative of the attempted robbery charge.

35.  On the whole of the evidence and particularly bearing in mind the applicants’ background, Mr Grossman argued that there was a doubt about the applicants’ guilt when there could be mistake or misunderstanding on the part of Mr Cheung and the police officers, and when the injuries on Kwan’s right wrist and right knee, which were consistent with the defence, had not been properly accounted for.

Discussion

36.  The judge had not misunderstood the defence case. In his “Verdict”, the judge set out the defence case succinctly; that the applicants did not try to rob Mr Cheung and that they only approached Mr Cheung because they thought he might have “snatched things”.

37.  Paragraph 9 of the “Verdict” was unnecessary. However, the judge was dealing with the defence submission and he simply stated that it was not even open to the defence to argue that the applicants only tried to snatch things from Mr Cheung in return because they were angry that Mr Cheung had tried to snatch things from Wong.

38.  Mr Cheung might not be a perfect witness. There were discrepancies in his evidence and the contents of his statement to the police on collateral matters. Mr Cheung said it was shortly after he was violently beaten up by the applicants that he gave the statement to the police when his hearing and memory were impaired. The judge was aware of those discrepancies and Mr Cheung’s explanation.

39.  Some of the attacks on Mr Cheung’s evidence were, with respect, completely unjustified.

40.  At the outset of his cross-examination, Mr Cheung frankly and willingly revealed his previous convictions. Yet in connection with his previous conviction for employing a person who was not lawfully employable, Mr Cheung was repeatedly, and quite unnecessarily, asked questions about whether he pleaded guilty to the charge to cover up for others.

41.  Mr Cheung stated clearly that because of the assault by the applicants, he was injured and was unable to run one of the restaurants, leading to its closure. Mr Cheung was reluctant to reveal too much about his business and the identity of “the butcher” and he had explained why.

42.  Mr Cheung was clearly apprehensive for his own safety and that of “the butcher”. He said they were “in the service industry and I’m worried that people may seek revenge”.

43.  In any event, Mr Cheung made it clear that “the butcher’ was merely someone he recognized because they frequented the same area and he did not even know “the butcher’s” name. Mr Cheung also said “the butcher” did not witness the attack and was therefore not in a position to give any relevant information.

44.  Yet defence counsel made use of those matters, which were hardly relevant to the issues that the court had to resolve, to provoke Mr Cheung by repeatedly dwelling on those matters. Mr Cheung eventually refused to provide any particulars of “the butcher” and this refusal formed one aspect of Mr Grossman’s attack on the credibility of Mr Cheung before us.

45.  We were not persuaded that the matters referred to by Mr Grossman had in any way undermined the credibility or reliability of Mr Cheung as a witness.

46.  Mr Cheung, understandably, was unable to be precise as to what had happened during the attack. After all, for no apparent reason, two strangers fiercely attacked him early in the morning, resulting in serious injuries to him. The attack happened suddenly and quickly, and only stopped when the police van unexpectedly arrived. Mr Cheung throughout was worried about his own safety.

47.  However, Mr Cheung was adamant that in the course of the attack, Wong was aiming at his wrist by repeatedly hitting the watch that he was wearing until it unbuckled, and then tried to remove it. Mr Cheung was also clear that Kwan had tried to reach his hand to his trousers pocket and attempted to get his wallet. Mr Cheung frankly admitted that he was unable to see what Kwan did, but he felt that was what Kwan was trying to do.

48.  To some extent, as pointed out by the judge, Mr Cheung’s account was supported by the evidence of the police officers who saw his watch was unbuckled and hanging loosely on his wrist when they arrived at the scene.

49.  With respect, the nature of Mr Cheung’s evidence, properly understood and analysed, clearly suggested that he was a truthful witness, trying his best to give an accurate account of what had happened to him.

50.  The judge did not rely on “flight” to convict the applicants. The judge was simply saying that the applicants’ “flight” was inconsistent with their case that they assaulted Mr Cheung because Mr Cheung had earlier attempted to “snatch things” from Wong, and had attacked Kwan first.

51.  Indeed, the defence case was highly unconvincing, if not outright absurd. If Mr Cheung had, as suggested by Wong, tried to snatch his wallet, he no doubt would have tried to ascertain if he had lost anything and then, if so, would confront Mr Cheung on the spot. Instead, he said he left Mr Cheung alone, went back to the bar and then returned with Kwan to confront Mr Cheung, without even trying to ascertain if he had lost anything.

52.  The suggestion that Mr Cheung, a 49 year-old man, would take the initiative to attack the applicants, two young men in their twenties, in the circumstances as they had described was equally unconvincing.

53.  It was not disputed that Kwan’s right wrist and right knee were injured.

54.  Such injuries could easily be explained by the fact that Mr Cheung put up a fierce struggle when the applicants attacked him, as pointed out by the judge.

55.  A judge, in deciding a criminal case, is obliged to give adequate reasons for his verdict. The judge should state those reasons so as to inform the parties how and why the particular verdict was arrived at and in such detail as will enable an appellate court to properly perform its duty.

56.  What are adequate reasons will of course depend on the facts of the case, as well as the nature and extent of the dispute.

57.  The issues that the judge had to resolve were simply; (1) whether the defence’s case was or could be true; (2) whether Mr Cheung was a truthful and reliable witness when he said the applicants not only assaulted him, but in the course of the assault also tried to remove his watch and his wallet; and (3) if Mr Cheung was a truthful and reliable witness, whether his evidence could lead to the only reasonable inference that the applicants had tried to rob him. The issues rested purely on the credibility of the witnesses.

58.  The judge, who had the benefit of hearing and seeing the witnesses in court, was in the best position to resolve the issue of credibility. An appellate court will not, save in the most exceptional circumstances, interfere with findings, which depend on the assessment of the credibility of witnesses.

59.  There was no conceivable reason for Mr Cheung to lie in his evidence about the applicants. The suggestion that he had fabricated and/or exaggerated his evidence, by falsely alleging that the applicants tried to take away his personal property because the applicants had assaulted him, was unconvincing.

60.  The judge was correct to say that it was unthinkable that Mr Cheung, in an injured state, would have fabricated the attempted robbery by unbuckling his watch within seconds of the police’s arrival.

61.  There was no suggestion that any of the police officers was lying, as confirmed by Mr Grossman.

62.  Almost every point urged before us had been dealt with by the judge. The judge, having carefully evaluated the evidence, rejected the defence case, and accepted that of the prosecution. The judge was entitled to reach those conclusions. On the facts he found, the judge was also entitled to infer that the applicants did try to rob Mr Cheung.

63.  When reaching his decisions, the judge was fully aware of the applicants’ background, including Wong’s clear record and Kwan’s single, minor, conviction.

64.  We had considered the evidence and counsel’s submission carefully. In the end, the real issue was whether the judge could believe and accept the evidence of Mr Cheung. We could not find any good reason to say that the judge erred in so doing.

65.  We were firmly of the view that on the facts as found by the judge, the decision to convict the applicants of the charge of attempted robbery was a correct one. The conviction was neither unsafe nor unsatisfactory.

Conclusion

66.  The application for leave to appeal against conviction was therefore dismissed.

67.  Having had their application for leave to appeal against conviction in respect of the 1^st charge dismissed, the applicants indicated, through Mr Grossman, that they would abandon their application for leave to appeal against sentence on the 2^nd charge.

68.  The application for leave to appeal against sentence was accordingly also dismissed.