HKSAR v. Wong Kin Fai

CACC 305/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 305 OF 2015

(ON APPEAL FROM DCCC 272 OF 2015)

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REASONS FOR DECISION

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Introduction

1.The applicant was charged with causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.  The charge alleged that on 2 January 2015 the applicant unlawfully and maliciously caused grievous bodily harm to Chan Shing Fong (“the victim”) with intent to do her grievous bodily harm.  The applicant pleaded not guilty to this charge and was tried before Deputy District Judge Ivy Chui (“the judge”).  On 30 July 2015 the judge convicted the applicant of this charge and on 1 September sentenced him to imprisonment for a period of 2 years.  The applicant has applied for leave to appeal against conviction. Pending hearing of that application the applicant has applied for bail.  At the hearing of his application for bail I refused it and said I would give my reasons for so doing at a later date.  This I now do.

Background to the offence

2.In July 2013 the victim, a divorced woman with a son aged 13, came to know the applicant.  In September 2013, they started dating and soon afterwards they became involved in an intimate relationship.  Around Christmas 2014 the relationship deteriorated. The victim decided to return to the applicant all his personal belongings which had been left at her home.  But, when she went to his flat she found he was not at home and so she left the applicant’s belongings on the handle of the metal gate of his flat.  These were apparently stolen before the applicant returned home and amongst them was a valuable Rolex watch.

3.The applicant was concerned at the breakdown in his relationship with the victim and on 2 January 2015 he invited the victim’s sister, Miss Chan Man Ha, who testified as the second prosecution witness at trial (“PW2”), and a cousin of the victim, known as Wei Lin, to come to his flat so that he could talk to them about his relationship with the victim. PW2 and Wei Lin arrived at the applicant’s home at about 2 am on 2 January 2015.  They were talking together and drinking beer and in the course of so doing drank a pack of 12 bottles of beer.  PW2 said the applicant also drank red wine.  Subsequently Wei Lin went and slept in the guest bedroom of the flat. 

4.At about 6 am on 2 January 2015 PW2 called the victim from the flat of the applicant.  She asked the victim to come over and apologize to the applicant so that the relationship between them would improve.  The victim agreed.  After making this phone call PW2 went to sleep in the master bedroom of the applicant’s flat. 

5.At about 7 am the victim arrived at the applicant’s flat.  She woke up PW2 and asked her to leave with her.  PW2 asked the victim to apologize to the applicant first.  The victim turned around and as she did so she suddenly lost consciousness.  She has no recollection of what happened to her at that time or thereafter. 

6.However, PW2 said that after seeing the victim turn around and leave the bedroom in which she, PW2, was sleeping she heard the sound of shouting outside the master bedroom.  When she went out of the master bedroom she saw the applicant shouting at the victim and kicking her with great force.  The applicant was lying on the floor and bleeding seriously on her head.  She said the applicant kept kicking the victim who appeared at the time to be unconscious.  PW2 said she immediately tried to stop the applicant but he kept on shouting and kicking the victim’s body. These kicks lasted 5 to 10 minutes.  At that time Wei Lin was awakened and she also tried to stop the applicant.  The two of them finally subdued the applicant and held him down on the bed. 

7.They said that the victim looked as though she was in a coma and so PW2 helped her to the ground floor.  There, PW2 saw a security guard, who was PW3 at trial, and asked that person to make a report to the police.  Thereafter an ambulance and uniformed police officers arrived.  The victim was taken to United Christian Hospital for medical attention and did not regain consciousness until a few days after the incident. 

8.It was not in dispute that when examined at the Accident and Emergency Department of United Christian Hospital the victim was found to have a two centimeter laceration to her right head, swelling on her head, swelling on the right chest wall back area, bruises and pain, and right side multiple ribs fracture and pneumothorax.  A whole body CT scan confirmed that the victim had fractures over the right 6 to 12 ribs with flail segment over 7 to 10 ribs, a small amount of right hemopneumothorax with a chest drain in-situ, a liver contusion and tiny laceration over posterior aspect of the right upper pole of the kidney with thin subcapsular hematoma.  The victim was not discharged home until 15 January 2015.  

9.It was not in dispute that prior to her arrival at the applicant’s flat the victim was in a healthy condition and not suffering from any of the injuries that were revealed in the medical reports.  Nor was it in dispute that the only persons in the flat were the applicant, PW2, and Wei Lin.  

10.The cousin, Wei Lin, did not testify as a prosecution witness as she was unavailable, having returned to the Mainland.  The applicant did not testify or call any evidence in his defence.

11.The applicant did not challenge the evidence of the victim and conducted his defence by trying to undermine the evidence of PW2, suggesting that it was not credible or reliable as PW2 was heavily intoxicated at the time of her alleged observations, parts of her evidence were inconsistent with the testimony of PW1 and also inconsistent with her witness statement and, it was said, it was apparent she had fabricated in her witness statement an assertion that the applicant had made a threat.

The Reasons for Verdict

12.Mr William Allan, who was counsel for the applicant at trial and who also appears on this application, made a submission of no case to answer.  This submission was put into writing and was also adopted by Mr Allan as his final submission, as supplemented by his oral remarks in court.  This submission contained a list of criticisms of PW2, the thrust of which was that her evidence was both unbelievable and unreliable.

13.In assessing the credibility and reliability of PW2 the judge addressed many of the issues raised by Mr Allan in his written no case submission.  The judge concluded that there were no significant discrepancies in PW2’s evidence that were so serious as to cause her to have a doubt on PW2’s credibility.  The judge found PW2 to be an honest and reliable witness.  She said that PW2 was simply acting as a peace maker between the victim and the applicant and was trying to help them.  She could not see any reason why PW2 would fabricate her evidence against the applicant and rejected the allegation that PW2 had embellished or fabricated her evidence. 

14.The judge then addressed the issue of whether PW2 was so intoxicated that she could not be regarded, at the time of the offence, as a reliable observer of events.  The judge noted that PW2 had denied in evidence that she was so intoxicated that she did not know what was happening.  She said she arrived at the applicant’s home sometime between 2 and 3 am.  She accepted that she was “paralytic” from alcohol between 3 and 4 am and at some time between 4 and 5 am she vomited.  She remembered giving the victim a call at about 6 am and said that by the time the victim arrived at the applicant’s premises she, PW2, felt only dizzy and sleepy.  She said that she had felt much better after having slept.  She maintained she was not in a state where she did not know what was going on around her.  She said she clearly saw the applicant shouting at the victim and kicking her body in the living room. 

15.After considering all the evidence the judge was sure PW2 had clearly remembered what had happened on the morning of 2 January.  She said she did not find PW2’s evidence to be inherently improbable or inherently incredible and neither did she find any of her evidence to be in material conflict with any other evidence.  

16.She also made an assessment of the victim’s evidence.  Although the victim’s evidence was not challenged the judge concluded that wherever it was different from the evidence of PW2 she preferred the evidence of this witness.  She said she accepted PW2’s evidence in its entirety.

The initial grounds of appeal

17.In his initial grounds of appeal Mr Allan has made three complaints.  The first ground of appeal is the judge erred in law in failing or omitting to direct herself properly or at all on the crucial and vital issue of the discrepancies, conflicts and contradictory testimony between the victim and PW2.  The second ground of appeal is that the judge failed or omitted to direct herself properly on the conflict and inconsistent evidence of PW2.  The third ground of appeal is that the judge failed or omitted to direct herself on the conflicts within PW2’s police witness statement which PW2 confirmed was true and accurate.

18.Each of these grounds of appeal is further particularised.  However, it is clear that they all relate, in one way or another, to the credibility and reliability of PW2.

19.At the hearing, Mr Allan further expanded upon his grounds of appeal by submitting that the judge had failed to address all the criticisms he made of PW2 and particularly his complaint that PW2 had fabricated a threat by the applicant.

The bail application

20.The application for bail is put on both the ground that the appeal is likely to succeed (the merits ground) and that the applicant will have served his sentence by the time the appeal is likely to be heard (the time ground).  The applicant’s release date is 3 May 2016.    

Discussion

21.In terms of the evidence this was a very straightforward case.  The only witness whose credibility and reliability was being challenged was that of PW2. Otherwise the prosecution evidence was not contested. 

22.As the judge noted in her Reasons for Verdict, the reality of this case, and a crucial contextual element, was that it was indisputable, indeed it was not contested, that the injuries which the victim sustained were caused to her inside the applicant’s flat.  That meant that only one or more of the three persons inside this flat could have caused these injuries.  It was not suggested in cross-examination of PW2 that either she or Wei Lin caused these injuries to the victim.  The defence simply put the prosecution to strict proof of its case, as it was undoubtedly entitled to do.  It was another contextual element that the applicant was upset at the way he had been treated by the victim, both in respect of his relationship with her and in respect of the way she had treated his personal belongings.

23.The judge was alert to the fact that the only direct evidence as to the author of these injuries was the testimony of PW2 and was aware of all the criticisms and complaints that Mr Allan made in respect of her evidence.  She spent the bulk of her Reasons for Verdict in addressing the issue of the credibility and reliability of PW2’s evidence. She addressed the main complaints raised by Mr Allan at trial in respect of PW2’s evidence and satisfied herself that it was both credible and reliable.  I can find nothing on the face of the judge’s reasons which indicated any error by her in her assessment of PW2. 

24.As to the alleged fabricated threat by PW2 the judge was alert to it.  She specifically mentioned it although she did not address it other than to say she had considered all the matters Mr Allan had raised with her.  However, the judge said she did consider whether PW2 might have fabricated her evidence against the applicant but rejected this possibility.

25.All the grounds of appeal relied on by Mr Allan effectively come down to the same issue, namely whether the judge erred in some way in the course of assessing the credibility and reliability of PW2.  In my view, Mr Allan has not been able to demonstrate that the judge erred in performing this task and so I do not see that the grounds of appeal, as presently formulated, are likely to succeed.

26.However, I accept that the applicant will have served a substantial part of his sentence by the time his appeal will be heard.  The applicant was convicted on 30 July and as of the date of the hearing of this application had still not applied for the transcript he needs for his appeal.  So part of the delay is due to his own inaction.  Nevertheless, the application for leave to appeal can be fixed for hearing once the transcript is available.  Hopefully, that is a milestone that can be reached before the end of this year.

27.The law is now clear[1] that a person will not be granted bail simply because he will have served the whole or a substantial part of his sentence before his appeal is likely to be heard.  His appeal must be at least reasonably arguable and have some prospects of success.  The threshold may be lower, but a threshold nonetheless exists.  I am not persuaded that the applicant has met that threshold. 

Conclusion

28.For these reasons I refused the applicant bail pending his appeal.

Mr Lenny Cheng PP, of the Department of Justice, for the respondent

Mr William Allan, instructed by Kent Tam & Co, for the applicant

[1]   See, for example, HKSAR v Lau Man Kin [2010] 1 HKLRD 336.