THE QUEEN v. TAM YAN CHUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 929 OF 1987

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J U D G M E N T

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1. The appellant was convicted of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212 (Charge A) and of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap. 200 (Charge B). On 6th October he was sentenced to 9 months imprisonment on charge A and 6 months consecutive on charge B. Both sentences were ordered to run consecutively to a three months sentence imposed on 2nd October for assaulting a police officer in the dock on 21st September after conviction on these charges. He appeals against both conviction and sentence.

2. The following facts were admitted :

Charge A The victim was driving his taxi outside the Lucky Dragon Restaurant, East Ocean Centre, Tsim Sha Tsui at about 2 a.m. on 22nd February, 1987, when he felt the taxi was struck by something. He alighted and was confronted by two men, one of whom appeared to be intoxicated. He was assaulted by one of the men and sustained facial injuries, for which he was treated at Queen Elizabeth Hospital.

Charge B A group of men entered the Joycoming Lounge, at 100 Granville Road last, at about 6.30 p.m. on 1st March, 1987 and used iron bars to damage some fittings, wine glasses and bottles of whisky.

3. At first blush there is no connection between the two charges, but in fact they are related.

The appellant was arrested on 21st March. He was cautioned in respect of these two charges and also another damage case at Kong Nam Tsuen Seafood Restaurant in Tsim Sha Tsui East on 28th January. He made the following statement, which was formally reduced to writing at the police station, the voluntariness and accuracy of which is not disputed :

"The taxi driver outside Lucky Dragon Restaurant was assaulted by me. At that time, I had drunk too much. The matter of 'So cheung' at Joy Coming Lounge was also done by me because it damned 'po chuen' stating that I assaulted the taxi driver. But (the incident) at Kong Nam Tsuen was not done by me. Ah Sir, you people are smart. You even know this den of mine. I will go with you to the police station before (I) say anything else."

4. In answer to questions he said he had forgotten who else was present when he assaulted the taxi driver. He had drunk too much. He only recalled that he had fought with the taxi driver and they had fallen to the ground.

5. Concerning charge 3, he said that by 'So Cheung' he meant he had smashed things inside the Joycoming Lounge. He had thrown the glass bottles and chairs to smash the glass on the wall. Only a man called 'Hak Chai' had helped him do this. He did not know where he lived and he had lost his pager number. 'Po chuen' meant making a secret report to the police. Finally he was asked about two wooden bars that the police had found beside his bed. He said they were hoe handles, which he intended to fix to hoes for digging the ground.

6. No one else was arrested in connection with these two offences.

7. The taxi driver attended an identification parade, attended by the appellant, but made no identification.

8. Two employees of the Joycoming Lounge also attended separate identification parades. They too failed to identify the appellant, although he was present at both parades. They had given the police the approximate age and height of the attackers.

9. Statements were taken from these employees. The officer in charge of the case was concerned about discrepancies between their statements and the appellant's confession of 21st March. The employees told the police that four men, not two, had smashed up the lounge and they had used iron bars.

10. As a result the appellant was interviewed again on 24th March and the discrepancy was put to him. This time the appellant denied taking part in the attack on the Joycoming Lounge. He said: "In fact, it wasn't done by me, therefore, I don't know what were used to break them. On 21.3.1987 I said that it was done by me because a few weeks ago, my friends told me that they would go to sweep and damage Joy Coming, my only way was to admit that it was done by me because I didn't want to betray my friends. However, I knew that it was an offence if I concealed the facts. Therefore, the only way I could do was to admit it. Later after I was given bail, I learnt that my friends went to Pik Uk Training Centre two weeks ago proved that it wasn't done by them. Therefore, I have no reason to admit that it was done by me."

11. He also denied hitting the taxi driver, but admitted he had known about this attack, as well as the Joycoming lounge incident. He was asked if he was in 'dissension' with the owner or staff of that establishment and replied "I'm not, but my friends always didn't pay at once when they went there to drink wine. Therefore, I don't know whether they are in dissension with the owner of Joy Coming."

12. The appellant did not give evidence or call witnesses.

13. Mr. Forrest, for the appellant, submits that his explanation for the initial confession and subsequent retraction is perfectly reasonable. He says the conviction is unsafe in the light of the failure of either the taxi driver or the two employees of the Joycoming Lounge to identify the appellant, in spite of ample opportunities to see his face.

14. As to the first submission, the magistrate resolved the matter in this way :"It was straining credulity to accept the Appellant made the admissions in Exhibit P.4 for the reasons given in Exhibit P.5. Exhibit P.5 is consistent with the Appellant desperately trying to repair the damage done by his admissions in Exhibit P.4. Rather than drivelling in Exhibit P.4 as the Appellant contended, he was wriggling in Exhibit P.5 because he very well knew the admissions of the assault upon P.W.2 and his involvement in the incident in the Joycoming Lounge in Exhibit P.4 were true and he had assaulted P.W.2 and been involved in the damage in the Joycoming Lounge. It was unrealistic to believe the Appellant would have made admissions so close to P.W.2's account of the assault simply because he knew such an event had happened and from a desire to protect someone else. It was similarly unrealistic to believe the Appellant would have admitted his involvement in the incident at the Joycoming Lounge in Exhibit P.4 for the reasons he gave in Exhibit P,5. That is taking friendship and loyalty too far. I am satisfied the only proper construction of Exhibits P.4 and P.5 is that the Appellant intentionally admitted his involvement in the incident at the Joycoming Lounge and attempted to minimise his role in that in Exhibit P.4 and attempted to resile from those admissions in Exhibit P.5 because he realised the paucity of the evidence against him by 24th March 1987. Exhibit P.5 did not assist the Appellant but underlined the truth of the admissions in Exhibit P.4."

15. There is, however, the discrepancy between the confession and the statements of the employees, which the magistrate regards as an attempt to minimise the appellant's role. There is no reason why the appellant should have admitted that he was in possession of iron bars or that there were more than two attackers.

16. The appellant's motive for resiling from his first statement is much more likely to have been his realisation, after he had survived the identification parades unscathed, that there was no other evidence against him, than the explanation that the magistrate found to be straining incredulity. In the absence of any evidence from the defence in support of this story, the magistrate was perfectly justified in taking this view.

17. The magistrate does not deal with the opportunities that may have existed to identify the appellant. However they can be disposed of briefly. In his evidence the taxi driver said he lost his spectacles when he was grabbed from behind prior to the assault. Before that, he only had a brief glimpse of the two men after he alighted from his taxi. It was quite dark. He was shortsighted. He regained consciousness in hospital. In these circumstances it is hardly to be expected that he would recognise his assailant a month later.

18. If the lounge employees had been responsible for informing the police about the taxi driver's assault, that would explain their failure to identify him. Alternatively, while they were able to calculate the. approximate ages and heights of the men, they may not have had sufficient opportunity in the confusion to get a good look at their faces.

19. I am satisfied, in the light of the full confession by the appellant that failure to identify him at the identification parades does not render these convictions unsafe.

20. The appeal against conviction is dismissed.

21. The appellant has three previous convictions. He has been fined, detained in the Training Centre and bound over. He is now 20. He is clearly a violent young men. The magistrate rightly took the view that the only way to deal with him now was to send him to prison.

22. Mr. Forrest does not disagree that a custodial sentence is proper, but submits that, for a young man, 15 months is too long. His wife is pregnant. There is really nothing else to be said in mitigation.

23. These sentences are within the normal range for sentences on such charges and I am not prepared to interfere with the magistrate's discretion.

24. The appeal against sentence is also dismissed.