HKSAR v. HARJANG SINGH

CACC 622/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 622 OF 1999

(ON APPEAL FROM DCCC 678 OF 1999)

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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):

Introduction

1. On 3 November 1999, the Applicant (D2) was convicted in the District Court following a trial before Judge Sweeney on a charge of wounding with intent which he had faced jointly with three others (D1, D3 and D4), all of whom were acquitted. The charge sheet alleged two other offences of assault occasioning actual bodily harm on which all of the defendants, including the Applicant, were acquitted. The Applicant now seeks leave to appeal against conviction on the charge of wounding.

Prosecution's case

2. The charges arose out of an attack by one group of four or five men, which allegedly included the Applicant, on another group of four men who were called on behalf of the prosecution as witnesses to the incident (PWs 1-4 inclusive). It took place at about 8.30 p.m. on 7 June 1999 in Ma Tau Kok Road. The prosecution alleged that the Applicant's group used wooden poles and fists during the attack but that the Applicant, having had a pole taken from him, then produced from his rear waistband a chopper or knife and used it to chop PW1 on his right shoulder.

3. PW1, together with the rest of his group, fled to a building in the vicinity and called police. Two officers were making their way to the scene when they saw D1 (Palminder Singh) running barefoot along the pavement. He was eventually caught after a long chase.

4. The Applicant was not arrested until 7 a.m. on 10 June 1999. On 16 June 1999, the Applicant was identified in a series of identification parades by PWs 2-4 inclusive as the man who had wielded the knife during the incident. The Applicant was well known to PW1 and PW1 gave evidence of recognition of the Applicant rather than identification.

Application to adduce additional evidence under section 83V

5. Before turning to the grounds of appeal, Mr Grossman, SC, on behalf of the Applicant, submitted that this court should receive fresh evidence under the terms of section 83V of the Criminal Procedure Ordinance, Cap. 221.

6. The evidence in question related to D1 (Palminder Singh) who, about six months after the conclusion of the trial, gave an affirmation on 10 May 2000 setting out the matters in respect of which he could provide testimony. The affirmation essentially boiled down to an assertion that he happened, by pure chance, to notice the incident, the subject matter of this case, in which a group of people were fighting. Palminder Singh saw people running away but he recognised two of the men in the group who had been attacking others, some of whom were holding wooden sticks. In particular, he knew one of the men by the name of Ali, and all of those in Ali's group appeared to be Pakistanis. He knew the Applicant extremely well as a close friend and he affirmed that if the Applicant had been amongst that group he would have recognised him easily. His affirmation stated that the Applicant was not present at the scene.

7. This affirmation has to be viewed in its full context. Palminder Singh was acquitted on the charges he faced. He did not give evidence in his own defence during the trial and, for this reason, was unable to provide the evidence on behalf of the Applicant which is now contained in his affirmation. Although he was competent to give evidence for the Applicant, he was not a compellable witness by virtue of section 54(1)(a) of the Criminal Procedure Ordinance.

8. No application was made on the Applicant's behalf in the court below for his trial to be severed from some or all of the others in order to enable him to call Palminder Singh on his behalf.

9. On the first day of the trial, the Applicant served a notice of alibi on the prosecution which was in these terms:

"At the time of the alleged offences on 7 June 1999, the 2nd Defendant (the Applicant) was at his work place at Stanley Main Street."

10. It is plain from the notice that the Applicant was unable to identify anyone who could support his alibi. The Applicant himself did not give evidence at his trial and he did not seek to support his alibi with evidence from any other source.

11. For the purposes of reaching a determination on the application to call fresh evidence, we have considered the relevant parts of section 83V of the Criminal Procedure Ordinance which are as follows:

"(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

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(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."

12. Subsection (2) relates to fresh evidence which might have been called during the trial itself whereas subsection (1) gives the court a wider discretion in certain circumstances to receive evidence, even though the evidence could not have been called during the previous proceedings. For example, we often hear challenges being made in this court which concern the competence of counsel's handling of the defence in the trial court below. Evidence is then tendered under subsection (1) to support or deny the contention that there has been incompetence.

13. Mr Grossman submitted that the Applicant had fulfilled the twin requirements of subsection 2(a) and (b) and, in the alternative, he invited the court to receive the evidence under the broader basis of subsection (1)(c).

14. The proper approach to these two subsections was set out in The Queen and Tam Chung-shing [1989] 1 HKLR 42 at p. 47G, where Silke VP observed that:

"Subsection (2) imposes a duty upon the court to receive further evidence, if the conditions of the subsection are met, but, of itself, does not restrict the discretionary power of the court under subsection (1) to receive further evidence if the interests of justice require. The conditions in subsection (2) are not imported into subsection (1) but a court should, in the exercise of its discretion, have regard to them without treating them as decisive in that exercise. The court will not receive inadmissible evidence nor will it receive evidence under subsection (1) if it is satisfied that it 'would not afford any ground for allowing the appeal' or it is unlikely to be credible for there must be some curb on the reception of fresh evidence to avoid the indefinite prolongation of the legal process."

15. Taking, firstly, the provisions of section 83V(2)(a), the court has looked at whether the evidence which we are asked to receive is "likely to be credible". This needs to be set into the context of all of the evidence because we do not consider that it can or should be looked at in isolation.

16. There was a wealth of evidence against the Applicant. Firstly, PW1 knew the Applicant well and he gave evidence that it was the Applicant who led the assault by firstly grabbing hold of him and then slapping him across the ear. The attack became more serious when the Applicant picked up a pole from a table nearby and proceeded to use it by hitting PW1 on various parts of his body until PW1 managed to get hold of it. It was at this stage that PW1 saw the Applicant produce a vegetable chopper, or something of that description, from his waistband which he used to chop PW1's shoulder.

17. In addition, PWs 2, 3 and 4 each identified the Applicant as the principal assailant who eventually resorted to the use of the chopper. They had not previously encountered the Applicant but were able to identify him without difficulty nine days after the incident on the identification parades.

18. The Applicant, in common with his co-defendants, did not, as we have said, give evidence. His defence was advanced by his counsel on the footing that PW1 and his friends had deliberately framed the Applicant as the result of past bad feelings which had built up between the Applicant and PW1. In furtherance of the Applicant's defence, it was suggested that the victim's injuries had been self-inflicted, motivated by a desire to obtain "settlement" money from those he accused of attacking him.

19. Having regard to the evidence which the judge found was reliable, in the sense that it was truthful and accurate, we have concluded that the evidence we have been invited to receive is not likely to be credible. The same considerations apply to the alternative application which was made under section 83V(1)(c) and accordingly we do not consider it either necessary or expedient in the interests of justice to receive the evidence. In these circumstances, we rejected the application to receive further evidence and proceeded to hear the leave application relating to conviction.

Grounds of appeal

20. Although three grounds of appeal have been put before us, they are closely related and can be dealt with together. Mr Grossman submitted that the conviction was unsafe and unsatisfactory because, in summary:

(1) the judge was not sure about certain aspects of the evidence given by the prosecution eye-witnesses in a number of specified ways, which resulted in various important discrepancies emerging from their evidence;

(2) the judge ignored the value and significance of PW1's "evidence pertaining to 'settlements out of court' and 'offers of settlements out of court'"; and

(3) the judge found that PW1's evidence was consistent with the injuries recorded in medical reports although this was contradicted by PW1's changing testimony as to which parts of his body were assaulted.

21. In reality, the third complaint was an example of one of the many contradictions referred to by Mr Grossman when he was advancing his arguments today.

22. We do not need to consider the evidence in great depth in order properly to consider these grounds. As PW1 and the Applicant were very well known to each other and the remaining eye-witnesses had positively identified the Applicant as the culprit who held the chopper, the judge was satisfied that the attack, in general terms, occurred in the circumstances described by the prosecution's witnesses.

23. Mr Grossman has criticised the judge's findings in regard to this Applicant by focusing his argument to a large extent upon the fact that eleven out of the twelve verdicts recorded by the judge were acquittals despite the positive evidence, to be gleaned from the testimony given by PWs 1-4, that the four defendants were all jointly involved in the three offences alleged against them. He submitted that the judge had isolated the evidence which identified the Applicant as the guilty culprit on the wounding charge, without giving proper regard to the reservations the judge had expressed on other aspects of the testimony given by the same four eye-witnesses.

24. We disagree with this proposition. It is plain that the judge did give the closest attention to the evidence in the trial and, having done so, was satisfied that no mistake had been made about the role played by the Applicant which was wholly distinct from the roles played by his co-defendants. Regarding the parts played by the others in his group, the judge said that he was not satisfied to the required standard that they had assisted the Applicant in the attack on PW1 and the other two victims of assault. His justification for this is to be found in three passages which read as follows:

"Although the other three witnesses did not know D2 (the Applicant) before this incident, they would all have been concentrating on him and his appearance during this dramatic confrontation and before the chaos of the general free-for-all that followed ...........

As already stated, all eyes would have been on D2 just before the general free-for-all, and after that the situation must have been chaotic ............

I find that in the chaos that ensued after PW1's friends had intervened, I cannot be satisfied beyond reasonable doubt that this defendant did intentionally assault either of the two victims named as distinct from them being assaulted by his companions, whoever they were."

25. Obviously there was considerable suspicion which attached to all of the co-defendants, particularly D1 (Palminder Singh) who was arrested as he ran away from the scene in bare feet. However, far from failing to heed the detail of the case which the judge has been criticised for doing, he could not have looked with greater care at the evidence in arriving at his conclusions. These, in some respects, can be regarded as having been generous in relation to the Applicant's co-defendants.

26. In the course of giving his Reasons for Verdict, the judge referred to evidence given by PW1 to the effect that he had previously engaged in "settlements" of cases. There is no justification for the contention made on behalf of the Applicant that the judge had ignored the importance of this aspect of the case. On the contrary, in a case where it had been suggested that PW1 was motivated to frame the Applicant in the hope of settling out of court for a monetary sum, it was plainly a crucial aspect of the way the defence was being run. It is apparent from the Reasons for Verdict that the judge had this very much in mind.

27. Finally, with regard to the inconsistencies arising from PW1's evidence, particularly relating to his injuries when compared to the medical reports about his condition, these were taken into account by the judge. They were generally, in any event, of peripheral significance and, if the defence of a "frame-up" had any substance to it at all, it might well have been expected that the evidence would have been rehearsed so as to iron out any potential inconsistencies. One example concerned an alleged injury to PW1's left or right ear about which he was inconsistent. The judge covered the inconsistencies in a passage taken from his Reasons for Verdict in the following way:

".... the very number of differences, omissions and discrepancies point the other way. People who conspire together to invent a story are generally very consistent with each other in the final product. By way of contrast, the way this story has emerged in court, after a detailed examination, is consistent with honest witnesses doing their best to recount the truth. Of course, the giving of evidence in court is not a memory test but a test of the truth. I am certain that this attack took place and that it took place in general terms as described by the four prosecution witnesses. I do not for a moment believe that they have put their heads together to concoct this story or that PW1 self-inflicted the wounds found upon him on examination at Queen Elizabeth Hospital."

Conclusion

28. There was, we are satisfied, nothing in the reasoning of the trial judge which can properly be criticised. His findings were entirely justified on the evidence and we have not been given any good reason to disturb the verdict which was recorded against the Applicant.

29. Accordingly, the application is dismissed.