R. v. SINGH DHALINER and Others

IN THE COURT OF APPEAL

1995, No. 15
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

INTRODUCTION

1. This case comes to us from a trial before Deputy Judge W. Leung in the District Court late last year.

2. Six men of Indian extraction, whose ages ranged from the early 20's to the mid 30's, were on trial.

3. The charge sheet contained two charges: the first of wounding with intent and the second of simple wounding.

4. Both victims were also men of Indian extraction. We will refer to the wounding with intent victim as the "first victim" and to the simple wounding victim as the "second victim".

5. All six accused faced the first charge. By his verdict delivered on November 28 last year, the judge convicted all six of them on that charge.

6. The second charge was against the 1st and 6th accused only. By that verdict, the judge convicted both of them on that charge, too.

7. Before us now are applications by the 1st, 3rd, 4th, 5th and 6th accused for leave to appeal against their convictions.

8. Mr Christopher Grounds of counsel appears on behalf of the 5th and 6th accused. The 1st, 3rd and 4th accused are in person.

9. The 2nd accused is not before us.

THE PROSECUTION'S CASE: EYE-WITNESS EVIDENCE OF THE VICTIMS

10. Shortly stated, the prosecution's case ran thus. On August 7, 1993, there had been an altercation between the first victim and a man by the name of Kumar. In the course of that altercation, Kumar slapped the first victim and the first victim slapped Kumar back.

11. Things did not end there. On the night of the 11th of that month, the 2nd accused - he is the one, it will be remembered, who is not before us - went to where the two victims lived in Kowloon City. He asked them to go downstairs for what has been described as a "settlement talk" with Kumar.

12. The victims did so. And in the street they found a group consisting of the other five accused, being the ones now before us, and Kumar himself.

13. The 1st accused was armed with a shovel, while the 6th accused was armed with a bicycle chain.

14. Acting in concert, the group attacked the first victim. He was beaten with the shovel, the bicycle chain and fists.

15. When the second victim tried to stop the attack on the first victim, he was himself attacked. The attack upon him was by the 1st accused using the shovel, the 6th accused using the bicycle chain and Kumar using his fists.

16. In the course of the attack upon the first victim, he was stabbed in the back by a member of the group.

17. After a time, all the accused and Kumar fled: leaving both victims wounded, the first victim very seriously.

18. In due course, the six accused were arrested and found themselves in the dock. We do not know what has become of Kumar.

19. Both victims gave eye-witness evidence against all the accused.

20. With one exception, the judge acted on each victim's evidence against each accused in convicting each of them as charged. The one exception was this. The first victim had failed to mention the 6th accused in his first statement to the police and had failed to pick him out at an identification parade, making a mistaken identification of one of the "actors" on the parade. So the judge ignored the first victim's evidence against the 6th accused (against whom he made only a "dock" identification).

THE DEFENCES: ALIBI

21. At the trial, the 2nd accused - who is not before us - neither gave nor called evidence. All the accused now before us gave evidence at the trial, each running an alibi defence.

22. In addition, the 3rd accused called his wife to give evidence in support of his alibi. And the 5th accused called two witnesses. One was his supervisor to support his alibi. The other was a man named Balkar Singh.

THE FIRST VICTIM GOES LEAVING THE SECOND ONLY

23. Balkar Singh's evidence was relied upon in support of what the judge described as a "general defence for all the [accused]".

24. The judge summarised Balkar Singh's evidence in this way:-

"On 26th September 1993, [the first victim] asked him to pass a message to [the 5th accused] to the effect that if [all the accused], who had already been charged with the present offences could give him $100,000, he would not mention their names at the trial and he would leave for India immediately."

25. The first victim denied that he had behaved in that fashion.

26. But the judge never said that he was satisfied that the first victim had not behaved in that fashion. Indeed, it would appear that the judge thought that there was something in what Balkar Singh said. That is because he said this about Balkar Singh's evidence:-

"This piece of evidence produced by [the 5th accused] was intended to discredit [the first victim] but I find it also established a vague link between [the first victim] and [the 5th accused]."

27. If the judge had been satisfied that there was nothing in what Balkar Singh said, then he could not have found - as he did find - that it established a vague link between the first victim and the 5th accused.

28. It appears, therefore, that the judge left unresolved the issue of whether the first victim had behaved as Balkar Singh said that he had.

29. With that issue unresolved, the judge's reliance on the first victim's evidence is too seriously flawed to be supported.

30. But the judge did not convict any accused before us on the first victim's evidence alone. In convicting the 1st, 3rd, 4th and 5th accused he relied also on the second victim's evidence. And in convicting the 6th accused he relied only on the second victim's evidence.

31. There is no such distinction between the 6th accused and the others as would support the notion that the judge might not have been prepared to convict the others as well on the evidence of the second victim alone.

32. Naturally, identifications based on the evidence of only one witness are not as strong as identifications based on the evidence of two witnesses. Nevertheless, we do not regard the flaw in the judge's reliance on the first victim's evidence as of itself fatal to any of the convictions.

GRUDGE ETC.

33. There is one further point which is relevant to all the accused before us. It is Mr Grounds's point that the judge failed to consider the danger that the victims had some motive, such as a grudge, for falsely implicating the accused in the attack upon them.

34. Looking at the reasons which the judge gave for his verdict, there may be some room for saying that he could have given a clearer indication that he had considered that danger. But it would be surprising indeed for any judge wholly to ignore so important a consideration.

35. There may well have been certain undercurrents in this case. But we do not think that we would be justified in overturning any of these verdicts on that basis without more.

36. And that is an end of the applications of those accused before us who are in person, namely the 1st, 3rd and 4th accused: who, apart from (impliedly) adopting Mr Grounds's arguments in so far as they covered their position, did nothing more than make bare assertions that their convictions were wrong.

37. What remain are the applications of Mr Grounds's clients, the 5th and 6th accused. The arguments to which we now turn apply only to the two of them.

CHARACTER

38. Those two accused, the 5th and 6th, were of good character. The other accused were not: all having previous convictions for, among other offences, ones of violence. Balkar Singh also had a conviction for an offence involving violence. And as far as the two victims are concerned, while they had clear records at the time of the attack upon them, by the time of the trial each had an assault against a police officer on his record. Moreover, by that time the first victim was on remand on a charge of murder: which, as we are given to understand, is still the position.

39. In those circumstances, the 5th and 6th accused, who were aged 29 and 30 respectively, were entitled to place heavy reliance on their good characters in meeting the charges brought against them.

40. That they were of good character made it less likely than would otherwise be the case that they would misbehave as the prosecution alleged and increased the weight to be given to their evidence denying such misbehaviour. In lawyer's shorthand, their good characters were to their advantage in regard to propensity and credibility.

41. In his Reasons for Verdict, the judge referred to the 5th and 6th accused's clear records and good characters, saying that they would be given due weight.

42. Then in the final paragraph of those Reasons, he gave this insight into his approach:-

"In this trial the characters of all witnesses were put in issue and their criminal records were revealed. This evidence is only relevant to witnesses' characters and credibility and not propensity."

43. Counsel for the prosecution asks us to treat that as referring only to the two victims. We cannot do that. If the judge had meant the two victims he would have said "V1 and V2" (which is how he referred to them). "All witnesses" means all witnesses. That includes the 5th and 6th accused, both of whom were witnesses.

44. Each of them was entitled to have his good character taken into account as something which made it less likely than would otherwise be the case that he would, in the company of violent men, carry out a vicious attack upon two men. They were erroneously deprived of the same. That error was fundamental and fatal.

45. For what it deprived the 5th and 6th accused of was of primary importance to their defence in putting real distance between themselves and the undeniably violent men with whom it was alleged that they had carried out such an attack. The offence charged was one of violence. The other accused's records showed them to be men of violent disposition. By the time they came to give evidence, it had been established that the victims, too, were men of violent disposition. And Balkar Singh, whom the judge seems to have thought had or may have been used as a messenger by the first victim in an attempt to obtain money for not giving evidence, was also a man of violent disposition. Unlike all those others, neither the 5th nor the 6th accused had a violent past.

46. The importance to an accused's defence of his good character varies widely from case to case. Here, the 5th and 6th accused's good characters were of primary importance to their defence. They were entitled in law to the full benefit of the same. But, erroneously in law, they did not receive that.

47. Even on that basis alone, their convictions cannot stand.

ADDITIONALLY

48. But we would add this. As far as the 5th accused is concerned, the judge's findings as to the times and distances relevant to the 5th accused's alibi so seriously undermine his rejection of that alibi as to render such rejection, and consequently the 5th accused's conviction, unsafe and unsatisfactory.

49. As regards the 6th accused, the prosecution case, summarised by the judge in his Reasons for Verdict, was very thin. It hung on the second victim's alleged recognition of the 6th accused: someone he had allegedly known for about three months before the attack. The 6th accused said however that he did not know the second victim. There had been no identification of the 6th accused at an identification parade. The issue - whether the 6th accused and the second victim knew each other - was not explored: at least, that was not apparent from the judge's Reasons. The judge seems to have accepted the second victim's story, and impliedly rejected the 6th accused's story, purely on demeanour. This adds to our anxiety concerning the verdict on the 6th accused.

RESULT

50. For the reasons which we have given, this is the result.

51. The 1st, 3rd and 4th accused all fail. They are refused leave to appeal against their convictions. So their convictions, and consequently their sentences, stand.

52. The 5th and 6th accused both succeed. The hearing of their leave applications are treated as the hearing of their appeals. Their appeals against conviction are allowed. So their convictions are quashed and their sentences are consequently set aside.

[Application for retrial refused.
Costs of appeal to the 5th and 6th accused.]