HKSAR v. GURUNG NIRAJ AND ANOTHER

CACC 635/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 635 OF 2002

(ON APPEAL FROM DCCC 917 OF 2002)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1. On 4 December 2002, following a trial in the District Court before Judge Christie, the Applicants (D1 and D2 respectively) were jointly convicted on two charges of wounding with intent and three charges of attempting to cause grievous bodily harm. They each now seek leave to appeal against conviction on all charges.

2. The facts were very simple. In short, the prosecution alleged that the two Applicants were part of a group of five Nepalese men who, on 15 April 2002, attacked the five victims identified in the charge sheet. Allegedly, D1 used a baseball bat and D2 used a knife from amongst the weapons brought to the scene in a guitar case albeit the judge's findings were not so specific as that. All the victims (PWs 1-5) sustained some form of injury. After the attack, the Applicants and their accomplices were alleged to have fled the scene in a taxi taking their weapons with them.

3. The motive for the attack was said to have been a grudge which was held by D1 against PW1 who was thought to have caused D1 to lose his job.

4. The defence case was that although D1 and D2 were at the scene where the fight occurred, the parts they played were minimal and in any event passive. Whilst the fighting was going on, they escaped from the scene in a taxi.

5. The Applicants were arrested on 11 July 2002 and they were charged on 8 August 2002.

6. Against this background, Mr Ross, on behalf of the Applicants, has advanced four substantive grounds of appeal. In the first of these, making the best sense out of it that we can, he alleged that the trial judge had made "findings of fact in the alternative" which were used to render D1 and D2 guilty of taking part in the joint enterprise. The principal "alternative findings" were said by Mr Ross to be that:

(i) several baseball bats were brought to the scene by the Applicants or by those with them;

(ii) at least one knife was brought to the scene by or with the knowledge of the Applicants;

(iii) the Applicants "caused" the bats and a knife or knives to be brought to the scene for the purpose of attacking PW1.

7. Plainly, this ground is without foundation. The judge made two fundamental findings. D1 and D2 knew of the baseball bats and at least one knife when they acted in concert with others with the intent alleged in the charges. Their guilt had nothing to do with who was physically responsible for bringing the weapons to the scene but rather depended on their participation in the armed attack which the Applicants' group launched on the victims.

8. The second ground of appeal also fails. This alleged that the judge had found that an act by D1 made him party to a joint enterprise on all the charges "without making a finding as to how that act had any bearing on the commission of each offence in each charge". We have already said that the facts were very simple. When the judge found as a proved fact that there had been participation in the assaults which took place, there was no need, as an experienced judge, to give himself a full direction on joint enterprise as he would have needed to give to a jury if this had been a trial by jury. Plainly, in the context, D1 was guilty of participation in the joint attack bearing in mind that weaponry, of which he was aware, was used. The judge in his Reasons for Verdict said that :

"23. What is most striking is that all of the prosecution witnesses' evidence is consistent in this respect; that the two defendants were there at the beginning. They took part in the assault upon the other group and they left the scene with the other assailants at which time the whole incident had ended, that is to say there was no further attack by other persons. As to the two defendants' evidence to the contrary, their evidence does not explain how the prosecution witnesses came to be injured. Their suggestion that this could have happened as a result of a second unrelated attack by other persons carrying weapons, which the witnesses then blamed on the defendants, is simply not plausible. ..." (Appeal bundle p.17)

A little later the judge went on to say :

"26. ... I make no finding as to whether that knife was carried to the scene in a guitar case or otherwise but I find that PW1 and PW2 were each injured with a knife or knives. I find that five assailants, and there were at least five including the two defendants, left together in a taxi for Yuen Long and one carried a bag which originally contained the baseball bats and might have also still contained them."

27. As to the roles of the two defendants in this concerted attack, the overwhelming weight of the evidence, even allowing for the discrepancies within the prosecution witnesses' evidence, is that the two defendants caused the bats and the knife or knives to be brought to the scene for the purpose of attacking (PW1) and any others with him." (Appeal bundle p.18)

9. In the fourth ground, Mr Ross alleged that the judge had failed to assess the reliability of PW1 and PW5 in relation to the charge against D2 that he had stabbed PW1 in the stomach.

10. Leaving aside the rather obvious fact that even if this ground had been properly made out, it would have provided little benefit to D2 because of the finding that D2 was party to a joint enterprise with D1 and others, the judge dealt in sufficient detail with the discrepancies which had inevitably arisen from the testimony of the prosecution's witnesses for the purposes of enabling him to reach a judgment about their credibility and reliability.

11. Lastly, in his third ground of appeal, Mr Ross complained of the alleged "non-disclosure" by the prosecution of PW2's criminal record. It has been accepted that the prosecution served on the first representatives of the defence, on 29 August 2002, a number of documents including a print-out of PW2's convictions. There is no dispute that these documents were provided to the Duty Lawyer Service at their office in Tsuen Wan, which was then responsible for the Applicants' defence, and that their receipt was acknowledged by a chop on the list of documents supplied.

12. Thereafter, on 11 September 2002, the Applicants appeared in the Tsuen Wan Magistrates' Court. After their case had been transferred to the District Court, they appeared there, on 27 September 2002, unrepresented. The judge, before whom they appeared, directed that they should obtain legal representation. On 18 October 2002, when they were again before the court, this time with representation on legal aid, a trial date was fixed. The trial took place between 28 November and 4 December 2002.

13. Mr Ross submitted that the service of PW2's criminal record on the Duty Lawyer Service's representative was not an "effective" disclosure of this material. This was, he maintained, because the prosecution served the defence with a further bundle of witness statements and other documents which did not include PW2's criminal record. Mr Ross argued that this, as it were, lulled the defence into a false sense of security by allowing them to believe that this was a full set of document which, in turn, had the effect of nullifying the earlier disclosure. We are told by him, and we accept, that the practice of the Duty Lawyer Service is to provide the prosecution's papers with which they have been supplied when the Department of Legal Aid requests to have them. In this case, there was apparently no request for the Duty Lawyer Service's papers.

14. We cannot agree with the submission that what occurred, when the prosecution served further papers on the defence, nullified the earlier disclosure of PW2's record. It may be that it was expedient for the prosecution to serve for the second time on the defence all the evidence they were proposing to call but their duty to disclose the bad character of one of their witnesses had already been fulfilled.

15. The position which had arisen is not unlike that which often occurs when one firm of solicitors for the defence is replaced by another. Whilst the prosecution may attempt to assist by serving on the second firm of solicitors some or all of the documents they have already served on the first, there is no duty on them to do so unless perhaps, in the unlikely event that the first documents have been lost, destroyed or deliberately withheld by the first solicitors, it is clear that the defendant can no longer obtain access to them.

16. The prosecution has an onerous task to fulfil in ensuring that its solemn obligation, in all but very exceptional cases such as those where there are public interest considerations to be borne in mind, to make full disclosure to the defence of material in its possession which may be regarded as relevant. It would be quite unreasonable for this court to say that, having once fulfilled that duty, the prosecution should be responsible for ascertaining whether all documents which they have served have been passed from one legal adviser to the other whenever a change of lawyers has occurred.

17. Of course, if defence counsel, who it appears in this case was unaware of PW2's record, had enquired during the trial as to whether any of the prosecution's witnesses had convictions, and had then been misled into believing that none of them had a record, that would have been quite another matter. However, there is no suggestion that defence counsel ever made such an enquiry. He apparently proceeded on the basis that, as he had not been informed of PW2's record, none existed.

18. In our opinion, the disclosure of PW2's record when the case papers were served on the Applicants' representatives, while the matter was still at the Magistrates' Court stage, had not been negated by the subsequent service of case papers on the defence when their legally aided representatives replaced the Duty Lawyer Service. Regrettable though it may have been that defence counsel was unaware of PW2's background, no criticism can properly be levelled at the prosecution on this ground. In this regard, the case is different to the circumstances which pertained in Ching Kwok-yin v. HKSAR [2000] 4 HKC 164, where the prosecution had failed altogether to disclose the criminal record of their only witness on whom, it goes almost without saying, the whole case depended.

19. The matter does not quite end there, however, as the effect on the defence was the same, whether or not there had been disclosure. We should add, therefore, that if we had felt that the Applicants' trial had been prejudiced by defence counsel's apparent failure to enquire into whether any of the prosecution witnesses had any previous convictions, or that the fairness of the proceedings had in some other way been compromised, we would plainly have had to consider interfering with these convictions. In our view this was not so. PW2's record showed that, on 26 March 1999, he had been convicted of obstructing a police officer in the execution of his duty and possessing an offensive weapon for which he was ordered to do a total of 100 hours' community service. Although it was submitted by Mr Ross that this material could have been used, together with the salient facts associated with that case, to undermine PW2's credibility, clearly this could not have had any material effect on the verdicts. The case against the Applicants was very strong, and having regard to how little of PW2's evidence was eventually accepted by the judge, his evidence took the prosecution's case little further forward. The judge expressly said that all he could take from PW2's evidence was that there had been a confrontation between PW1 and D1, that weapons were taken up by D1's side and that in the course of this, PW2 was cut. There was ample evidence of all these matters without PW2 being called to testify in support of them.

20. We are satisfied that the verdicts were neither unsafe nor unsatisfactory. Accordingly, although we propose to grant leave, treating the hearing as the appeal, we dismiss both appeals.