HKSAR v. LAM HUNG

CACC 206/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 206 OF 2008

(ON APPEAL FROM DCCC NO. 12 of 2008)

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J U D G M E N T

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

1.  On 8 May 2008, the applicant was convicted of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, following a trial before District Judge Whaley.  He now seeks leave to appeal against his conviction.

Prosecution's case

2.  The facts were not complicated but they need to be set out in some detail having particular regard to the 1^st ground of appeal.

3.  On 20 November 2007, Lam Wun-wing (the victim) went to a noodle shop to have breakfast with a friend.  A dispute arose with a waitress over whether, as the victim said, he had tendered a $100 note in payment or, as the waitress maintained, he had tendered a $50 note.  The victim asked for the ‘boss’ to be called.  In due course the restaurant owner, Chan Tam-kuk (Chan), arrived and eventually, or so it seemed, the dispute was settled. 

4.  Chan was not only the owner of the restaurant but also the vice-chairman of the Tung Chung Residents’ Association (the Association), of which the applicant was chairman.

5.  That evening, the victim was at dinner with a friend (PW2) when, at about 9.15 pm, he received a telephone call from someone known to him as Chan Him who asked him to come out for a drink.  The victim said that he would come when he had finished eating.  A short while later, Chan Him telephoned again and mentioned the dispute in which the victim had been involved earlier in the day.  Chan Him told the victim that it would be better if he came out to discuss the incident with Chan and that if he did not do so (as the English translation reads), not to “come crying at that time”. 

6.  The victim agreed to meet Chan Him.  He walked with PW2 to the Association’s premises which included a ground floor restaurant.  When he got there, the victim looked into the restaurant where he saw 20 to 30 people including Chan but, as there was no sign of Chan Him, he decided to leave.  However, as he did so, he saw the applicant with Chan Him and two other men waiting for him in the alleyway alongside the restaurant.  A table and some chairs had been placed there and the victim was allegedly told by the applicant to sit down and not to move.  Chan Him pushed the victim into a chair and accused him of refusing to come out to meet him.  Chan Him then punched the applicant under the right eye and again on his chest and mouth.  Then, one of the other two men, both of whom were unknown to the victim, punched the victim on the eye while the other drew out a knife and raised it to strike him.  When the victim raised his left hand to ward off the blow, he was cut between his thumb and index finger.  The applicant was allegedly present throughout the assault on the victim who received, in addition to the wound to his hand, minor facial injuries.

7.  At that point, the victim ran away and was chased by 6 or 7 people, some of whom came out of the building.  Various things were thrown at the victim which fortunately missed and, while he was running, he was able to call the police.  When the police arrived, the applicant was nowhere to be seen.

8.  The applicant was arrested on 21 November 2007 and denied any connection with the assault on the victim.

9.  The applicant explained to the police that he had been in a meeting of the Association lasting from 8.30 pm to 12.30 am, covering the time when this incident had occurred, although he had left the meeting at 10 pm to look for a friend downstairs in the restaurant and had noticed that police were present.  He then returned to the meeting.  The applicant accepted that he knew the victim but denied having a grudge against him.

10.  Three days after the assault, at a formal identification parade, the victim picked out the applicant although, at another parade, he was unable to identify anyone known to him as Chan Him.  The victim said that as all the people on the second parade had been wearing plastic caps, it was difficult for him to identify anyone.

Defence case

11.  The applicant chose not to give evidence but Chan, the owner of the noodle shop where the trouble had begun, gave evidence on the applicant’s behalf to confirm that both of them were engaged at a meeting of the Association during the time when the attack on the victim took place immediately outside the Association’s premises. 

12.  Chan confirmed that he had been involved in a dispute with the victim during the morning in which he said the victim had used foul language and had pushed him.  Chan produced a set of minutes which appeared to confirm that the meeting of the Association, which the applicant had asked him to attend, had taken place between 9.15 pm and 12 midnight on 20 November 2007.  He described how all the windows of the upstairs room where the meeting had taken place had been closed and that he had not even been aware that that evening the victim had been attacked.  He had, he said, been out on the balcony during a break for a smoke and had heard about a fight but, as he was not interested or concerned and had had nothing to do with it, he did not even find out if anyone had been injured.  Eventually, when he left to go home, he took a back-door exit and missed seeing signs where the police had cordoned off areas marking the place where the attack had occurred.

Grounds of appeal

Competence of trial counsel

13.  Four grounds of appeal were advanced by Mr Hoosen on the applicant’s behalf.

14.  We firstly dealt with the 4^th ground in order to enable trial defence counsel, Ms Corrina Tai, to be released as soon as she had given evidence in answer to the suggestion that she “failed, contrary to instructions, to cross-examine [the victim] on his previous convictions which would have seriously affected [the victim’s] credibility”, with the consequence that the applicant was “gravely prejudiced”.

15.  Mr Hoosen argued that as the whole case depended on the victim’s credibility, there being no support for his evidence at all, the failure to bring out his previous criminal convictions when counsel had been instructed to do so, amounted to flagrant incompetence on her part.  The convictions were, firstly, on 22 February 1983, when the victim was bound over at the Tsuen Wan Magistrates’ Court for 2 years in the sum of $1,000 for unlawful sexual intercourse and, in addition, was fined $500 for claiming to be a member of a triad society.  The victim’s only other appearance in court was on 19 December 1986, when he was convicted at Kwun Tong Magistrates’ Court of blackmail and fined $2,000.

16.  The applicant stated in his affirmation that Ms Tai explained to him the advantages and disadvantages of cross-examining the victim about his convictions, but he “decided to take the risk of [his] previous conviction being disclosed and therefore instructed Ms Tai to cross-examine [the victim] on his previous convictions” as they were “much more serious when compared to [his own] which was only in relation to gambling”.  More precisely, the applicant was convicted on 31 August 2007 at the Tsuen Wan Magistrates’ Court of operating a gambling establishment for which he was sentenced to 2 weeks’ imprisonment suspended for 2 years and fined $10,000.

17.  Ms Tai adopted the affirmation she had made in response to the applicant’s allegation.  In this, she set out the way she had explained to the applicant the possible effect of disclosing the victim’s previous convictions in that, if the applicant chose to give evidence himself, his own conviction might be revealed to the judge.  She did this, she said, in order to obtain the applicant’s consent to her possibly needing to introduce the victim’s convictions in cross-examination and, according to Ms Tai, the applicant agreed to the course she recommended, leaving the decision up to her.  At no stage, she said, did the applicant give “express instructions” that the victim’s convictions were to be introduced in evidence.  If he had done, she would have got him to sign a written record to that effect but there is nothing of that kind to be found.  Furthermore, at the conclusion of her cross-examination, her usual practice, she said, was to ensure that the lay client wanted nothing else put forward in cross-examination.  This is exactly borne out by the transcript towards the end of the victim’s evidence.  In any event, as the cross-examination of the victim was concluded on 5 May 2008, and the evidence in the trial continued until 7 May 2008 with the Reasons for Verdict being given on 8 May 2008, Ms Tai made the point that if the applicant believed she had omitted to carry out her instructions, it was rather odd that he did not mention it at the time instead of leaving this as a point to be taken on appeal a long time later.  In regard to this, as Ms Tai also stated in her affirmation, she was originally nominated by the applicant as the counsel of his choice to conduct this application, a fact which was not disputed.

18.  Ms Tai plainly had in mind that she would be able to deal with the victim’s evidence adequately by reference to the inconsistencies in the victim’s account which she had set out in detail in her affirmation as well as the possibly counter-productive effect of introducing convictions which were recorded against the victim over twenty years earlier.

19.  We are satisfied that Ms Tai acted properly in the carrying out of her duties and that there was no substance in this ground of appeal.  Indeed, this ground should never have been advanced.  It was utterly misplaced.

Speculation

20.  The 2^nd and 3^rd grounds of appeal can be taken together.  In these, it was submitted that the judge, having accepted that there was a meeting of the Association as recorded in the minutes, erred when finding that this did not preclude the applicant from being present at the attack and in rejecting the alibi evidence provided by Chan.  Furthermore, Mr Hoosen contended, the judge had “misdirected himself by making conjectures (against the applicant) so as to resolve the alibi evidence by surmising that the applicant rejoined the group in the restaurant after the attack and then held a meeting sometime later”.

21.  These points, which effectively suggest that the judge entered the realms of speculation, can be disposed of very briefly.  It was Chan’s evidence that he had been engaged in a meeting from 9 pm until midnight apart from a short break.  Yet when the victim went to speak to Chan Him, he saw Chan (DW1) inside the restaurant (before the attack) with a large number of other people.  The judge noted this evidence when saying:

“40.   Accepting, as I say, that some sort of a meeting or discussion took place involving the defendant and DW1 at some stage that evening in the residents' association building, that would not have precluded the defendant being just outside the building as testified to by PW1 at the time that he was assaulted.

41.     It is relevant to recall DW1’s evidence in this connection that he had felt aggrieved by PW1's conduct in the noodle shop that morning and he had told the defendant about that incident; furthermore PW1 did see DW1 in the restaurant when he went there to talk about the incident in the noodle shop.

42.     I am satisfied beyond a reasonable doubt that PW1’s testimony was truthful and reliable, including that he did see DW1 in the restaurant when he looked inside before the attack upon him took place; in particular that the defendant was, indeed, part of the group that was waiting for him outside the restaurant, and that the defendant did say to him, ‘Sit down, don't move’ immediately before PW1 was then assaulted and chopped by the other members of the group, during the whole of which incident the defendant remained with the group.”

22.  The judge later noted that the applicant’s disappearance after the incident meant that it was “highly probable” that he had returned to the restaurant and then had a discussion with the others mentioned in the minutes of the Association’s meeting.  This was, in our opinion, a perfectly reasonable inference for the judge to have drawn.

23.  These grounds were without merit.

Joint enterprise

24.  We turn now to the 1^st ground in which it was submitted that the judge erred in finding that the applicant was part of a joint enterprise the scope of which “included chopping [the victim] with a large knife”.

25.  The only references in the Reasons for Verdict on this aspect were, firstly, an assertion on the part of the judge that it was “clear on all the evidence that he [the applicant] was knowingly taking part in a joint enterprise, the aim and scope of which was to teach [the victim] a lesson by punching him and also chopping him with the large knife which was, to the [applicant’s] knowledge, carried by one of the young males with the intention of using it against [the victim]”.  Secondly, the judge said:

“47.   Since the defendant took part in this joint enterprise with full knowledge, as I have found, of what was intended, namely, punching and chopping PW1 [the victim], it follows that in law, the defendant is liable for the actions of the other members of the group which were perpetrated within the scope of the joint enterprise as if he had perpetrated them himself. I accordingly find the defendant guilty as charged.”

26.  As the applicant had denied any involvement in the attack on the victim, there was no admission to be taken into account against him that he knew the nature of the attack which it was intended to make on the victim.  Equally, there was no evidence, beyond the description of the attack itself, which was capable of demonstrating that the applicant knew that the attack would take a form which extended beyond the use of fists.  Chan Him and one of the unknown men with him both used their fists.  However, the use of a knife, whilst very possibly a part of the joint enterprise, clearly could not be established from direct evidence to have been within the applicant’s contemplation and we do not feel satisfied that it was possible to draw an irresistible inference that the applicant must have known of the presence of the knife and of its possible intended use in the attack.

Conclusion

27.  Accordingly, we shall grant leave to the applicant on the 1^st ground and treat the hearing as the appeal.  We quash the conviction and sentence for wounding but, pursuant to section 83A of the Criminal Procedure Ordinance, Cap. 221, we shall, having heard counsel’s submissions, substitute a conviction for assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance and we impose, by way of substituted sentence, a term of 9 months’ imprisonment.  To this extent, the appeal is allowed.