HKSAR v. KO WAI HUNG, JAMES

CACC 457/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 457 OF 2005

(ON APPEAL FROM DCCC NO. 601 of 2005)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

The Prosecution Case

1.  In the evening on 15 April 2005, Mr Ng Kwok-wa (“the victim”) met Ms Lam Yik-tun (“Ms Lam”) at the MC9 Bar on the second floor of Hai Xin Building in Hart Avenue in Tsimshatsui to have a drink.

2.  At around 2.30 am on 16 April 2005, the victim left MC9 Bar and met a friend – Chan. Whilst they were having some snacks at a nearby hawker stall, Chan had an argument with two other men, and suddenly six to seven men appeared with wooden batons to attack the victim.

3.  The victim retreated back to Hai Xin Building, but was pursued by the assailants to the lift lobby. The victim managed to push away the assailants before running up the stairs to the top of the building on the 16^th floor.

4.  The victim suffered lacerations to his head and required sutures. He was unable to identify any of the assailants.

5.  Ms Lam left the MC9 Bar shortly after the victim had left by taking the lift. When the lift door opened on the ground floor, Ms Lam saw a group of men fighting the victim and the situation was chaotic. She asked the people what was the matter and nobody answered.

6.  Ms Lam said the applicant – Ko Wai-hung, James, was one of the men in the attacking group and was moving his arms and hands. Ms Lam said she was ‘touched’ on her head, arm and hand and she tried to cover her head with her hands. She also said she closed her eyes and when the lift door closed, she could no longer see the attackers.

7.  Ms Lam retreated back to MC9 Bar and was followed by the group of attacking men, including the applicant. She found it necessary to hide behind the bar counter and when she did so, she heard the sound of glass breaking.

8.  Later Ms Lam left the MC9 Bar and went to the hospital. She was seen to have blood on her head and her finger was injured, but she declined treatment. Ms Lam told the police at the hospital that she could not recognise the assailants. She also stated in the written statement that she did not see the appearance of the opposite party and could not make an identikit for the police.

9.  The manager of the MC9 Bar confirmed that five to six unidentified men had caused a disturbance in the bar. Under cross-examination, he said the applicant was not one of them and by the time the police arrived, the men who caused the disturbance had left.

10.  The police, who arrived at the scene subsequently, found a number of wooden batons in a nearby building, and one of the batons was stained with the victim’s blood.

11.  There was an identity check at the MC9 Bar after the attack and the applicant was present during the check.

12.  It was agreed that at about 2.40 am on 16^th April 2005, two men dashed into the caretaker’s office of Hai Xin Building and warned the caretaker not to move. They then took away the CCTV tape that had recorded the earlier activities at the lift lobby.

13.  Ms Lam attended an identification parade on 11 May 2005 and identified the applicant as one of the assailants after viewing the parade for three minutes. She said that when she saw the applicant at the lift lobby, he appeared to be fighting as his arms were moving about.

The Charges and the Trial

14.  The applicant was charged with wounding the victim with intent and assaulting Ms Lam, thereby causing her actual bodily harm. The applicant pleaded not guilty to the charges and appeared before Deputy Judge Casewell in the District Court for trial.

15.  The judge heard evidence from the victim, Ms Lam and other witnesses. The only important issue was whether Ms Lam’s identification of the applicant was correct.

16.  Under cross-examination, Ms Lam said she had in fact seen the applicant more than once in the street prior to the incident in question. She was adamant that she had correctly identified the applicant.

17.  Ms Lam was also asked about her statement given to the police immediately after the event in question when she was in hospital, to the effect that she could not identify the assailants. She said, “At that time, I was still frightened and I was very tired. I just wanted to go home. I could not consider carefully before giving an answer.”

18.  The applicant did not give evidence and did not call any witness in his defence. It was suggested simply that Ms Lam had wrongly identified the applicant.

The Judge’s Findings

19.  The judge carefully analysed the evidence of Ms Lam, particularly the circumstances in which she claimed to have seen the applicant during and after the attack. The judge pointed out that the lighting at the lift lobby was adequate as there was a CCTV camera operating; that Ms Lam saw the applicant’s face within a few feet albeit it was not a full front view; that Ms Lam had seen the applicant in the street on more than one occasion within a year and that she also had seen him more than once in the evening in question.

20.  The judge pointed out that when Ms Lam was interviewed by the police at the hospital, she was injured, frightened, tired and was suffering from the shock of what she had witnessed, events that she was not used to.

21.  The judge opined that what she told the police at the hospital was not surprising. The judge emphasized that Ms Lam was very careful in her evidence and would have been careful in making her identification of the applicant.

22.  The judge said the undisputed evidence that the applicant was present during the identity check supported Ms Lam’s evidence that he had been present at an earlier stage.

23.  Insofar as the bar manager said the applicant was not one of the men who caused the disturbance, the judge pointed out that he was unable to identify any of the men and doubted his ability to make a proper observation of those men even though he said expressly that the appellant was not one of them. The judge did not find that his evidence had weakened Ms Lam’s evidence that the applicant was one of the men who made a disturbance.

24.  The judge was satisfied that the applicant was one of the men who attacked the victim with wooden batons. The judge convicted the applicant of the wounding charge and sentenced him to two years and six months’ imprisonment.

25.  However, as Ms Lam was unsure how she sustained the injuries and the “touching” on her could be accidental, the judge gave the applicant the benefit of the doubt and acquitted him of the assault charge.

26.  The applicant now seeks leave to appeal against conviction.

Grounds of Appeal

27.  Mr Neville Sarony SC, in his submission, attacks Ms Lam’s identification evidence and suggests that the judge had not dealt with such evidence properly and in accordance with the Turnbull direction. Mr Sarony submits that the quality of the identification evidence was poor and was so unreliable that the judge should have withdrawn the case at the end of the prosecution evidence.

28.  Mr Sarony said the judge was wrong to conclude that the applicant’s presence at the later stage supported Ms Lam’s identification of the applicant when it was never in dispute that the applicant had been in the MC9 Bar that evening and was still there when the police arrived. He said the judge erred in his failure to rely on the ‘unchallenged evidence’ of the bar manager that the applicant was not one of the men who had caused disturbance in the bar.

29.  Mr Sarony emphasizes Ms Lam’s statement to the police at the hospital and says that such statement was totally inconsistent with her evidence that she had seen the applicant in the street on more than one occasion. Mr Sarony also emphasizes that if the applicant’s face was familiar to Ms Lam, as she had seen him previously in the street, she would have mentioned it to the police at the hospital.

30.  Mr Sarony further suggests that the judge was wrong to rely on Ms Lam’s evidence that she had seen the applicant in the street when it had not been established properly whether she saw him prior to the incident or just prior to the identification parade. He said Ms Lam’s evidence was ambiguous and the judge failed to clarify the ambiguity.

Discussion

31.  There is, in our view, no basis for suggesting that Ms Lam’s evidence as to when she saw the applicant in the street was ambiguous.

32.  Defence counsel asked Ms Lam if the applicant was a stranger to her prior to the incident, and she said she had seen him in the street. Defence counsel then put to Ms Lam, “Isn’t it possible that because you have seen him around before the incidentthat you thought, mistakenly that he was one of the persons in the lift lobby on 16 April?” to which suggestion Ms Lam disagreed.

33.  Everyone accepted, as established by defence counsel under cross-examination, that it was Ms Lam’s evidence that she had seen the applicant more than once prior to the incident in question although she did not know him. It was on such understanding that the judge took up the issue and confirmed with Ms Lam that she saw the applicant more than once in the street before, but within the same year. When the judge used the word ‘before’, clearly it was referring to ‘before the incident in question’.

34.  A judge is entitled to accept or reject the evidence of any witness. A judge is also entitled to accept or reject the evidence of a prosecution witness when such evidence contradicts the prosecution case or that of the other prosecution witnesses.

35.  There was inconsistency between Ms Lam’s evidence and that of the bar manager when the bar manager said the applicant was not one of the five to six men who caused a disturbance in the MC9 Bar.

36.  We do not find it necessary to speculate why there was such inconsistency. However, the judge had carefully considered the evidence. The judge pointed out the bar manager’s mistake as to the time when Ms Lam returned to the bar and whether she was then accompanied by the victim. The judge observed that the bar manager had said that he was unable to identify any of the men involved in the disturbance.

37.  The judge was entitled to reject the bar manager’s evidence where his evidence seemingly contradicted that of Ms Lam and to conclude that his evidence did not weaken that of Ms Lam. As stated above, the judge had doubt over the bar manager’s ability to identify.

38.  Mr Sarony rightly emphasizes what Ms Lam told the police shortly after the incident; that she could not recognise the assailants; that she did not see their appearance and could not make an identikit for the police. Mr Sarony is also right in suggesting that if Ms Lam had seen the applicant in the street and had recognized his face, she should have mentioned to the police at the hospital.

39.  However, it is important to note that the attacking group consisted of six to seven men according to the victim and Ms Lam was asked to describe them shortly after the attack when she was in a state of distress. Ms Lam’s assertion that she could not recognise the assailants in such circumstances was, as the judge accepted, understandable.

40.  The judge was clearly concerned about the issue and had expressly dealt with it. The judge had carefully examined the circumstances in which Ms Lam made her statement to the police. The judge was entitled to accept Ms Lam’s explanation that she was injured, frightened, tired and shocked by what she experienced.

41.  It must be borne in mind that there was no motive, not even a suggested one, for Ms Lam to lie against the applicant. Indeed, Mr Sarony accepts that Ms Lam was an honest witness. The only issue was her reliability and Ms Lam was adamant that the applicant was one of the attacking men.

42.  The prosecution case turned entirely on the identification of the applicant by Ms Lam. However, it was not a case of the identification of a total stranger in a fleeting glance or other similar difficult situations. It was a case of the recognition of a face that Ms Lam had seen on previous occasions. It must also be remembered that in the evening in question, Ms Lam also saw the applicant both during and after the attack.

43.  The judge did not say that the applicant’s undisputed presence in MC9 Bar corroborated Ms Lam’s identification of the applicant. The judge was simply saying that the applicant’s undisputed presence was consistent with Ms Lam’s evidence that the applicant was one of men who returned to, and smashed glass in, the bar. The judge’s observation was correct.

44.  Contrary to Mr Sarony’s submission, we find the judge’s handling of the identification issue to have been impeccable. The judge clearly recognized the relevant Turnbull factors and dealt with them in a careful and comprehensive manner. He said in his Reasons for Verdict that it was necessary to consider the identification evidence given by Ms Lam “in detail”. The judge had examined closely the circumstances in which Ms Lam recognized and identified the applicant during, and subsequent to, the attack on the victim.

45.  On the prosecution evidence, the judge was entitled to conclude, as he did, that Ms Lam had correctly identified the applicant as one of the assailants who wounded the victim, particularly in the absence of any evidence from the defence to explain, contradict or undermine Ms Lam’s evidence.

Conclusion

46.  We do not consider that the conviction of the applicant on the wounding charge was unsafe or unsatisfactory. We dismiss the application for leave to appeal against conviction.