HKSAR v. Chow Benjamin also known as Tseng Wesle

CACC 118/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 118 OF 2017

(ON APPEAL FROM DCCC NO 650 OF 2016)

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Before:  Hon Macrae JA in Court

Date of Hearing: 1 December 2017

Date of Judgment:  11 December 2017

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JUDGMENT

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1.The applicant faced a single charge in the District Court of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212. He was convicted of the charge after trial by HH Judge Casewell (“the judge”) on 10 March 2017, and sentenced to 15 months’ imprisonment on 7 April 2017.

2.On 25 April 2017, the applicant filed a Notice of application for leave to appeal (“Form XI Notice”) against both conviction and sentence.  He subsequently abandoned his application in respect of sentence, which was formally dismissed on 15 August 2017.

The prosecution case

3.The applicant and PW1 were neighbours on 9/F of Mei Choi House, Shek Kip Mei Estate in Sham Shui Po: the applicant lived at Room 910; PW1, at Room 906.  Prior to the offence, PW1 had complained for some time that the applicant had made an excessive amount of noise in his unit, which led him to make complaints to the Housing Authority and, it was claimed, to the police. Indeed, it appears that each party had made complaints about the other.

4.Shortly after noon on 22 April 2016, PW1 and PW2 (his Thai girlfriend) were inside Room 906.  PW1 had opened a can of beer.  At that time, PW1 thought that the applicant was making an unreasonable amount of noise in his unit, which was just along the same corridor on the same floor.  Accordingly, at about 2 pm, PW1 went to Room 910 to ask the applicant to stop making such a loud noise.  The applicant said it was none of PW1’s business and picked up a knife from the floor, saying “Do you believe I will stab you?”  PW1 then returned to Room 906.

5.However, the applicant opened the grille of PW1’s unit and walked quickly towards PW1, holding the knife in his right hand. Thereafter, the applicant said “I am stabbing you” and stabbed him in the waist, before slashing him upwards from left to right across the chest.  PW1 immediately picked up an iron pipe to defend himself and PW2.  However, PW1 was unable to push the applicant away with the iron pipe, which was snatched away by the applicant who then used it to hit PW1, causing him to fall to the floor.  The applicant then sat on PW1, using the knife to stab at his face and head, chest, armpit and shoulder.  When he had finished, the applicant returned to Room 910.

6.Feeling aggrieved, PW1 came to Room 910 to remonstrate with the applicant.  PW2 then intervened, pulled PW1 away and took him back to Room 906, where they called the police.

7.It was an admitted fact that, as a result of the offence, PW1 had a 30 cm horizontal laceration over the anterior chest, a wound over the right side of his chest and further lacerations to both shoulders, nose and cheek[1]; while the applicant suffered injuries to his right index and middle fingers, forehead and left forearm[2].

8.Both PW1 and PW2 were called to give evidence at trial.  It was not disputed that both of them had previous criminal convictions, as did the applicant; those of PW1 being far more extensive than those of the applicant, including offences such as robbery, theft, blackmail, possession of imitation firearms, possession of an offensive weapon in a public place, wounding or inflicting grievous bodily harm, assaulting a police officer, disorderly conduct and fighting in a public place; in respect of which convictions he had served considerable periods of time in prison, the longest sentence being 9 years’ imprisonment.  PW2 had prior convictions for using unlawfully obtained travel documents and causing fraudulent misrepresentations to be made to an Immigration officer, for which she had been sent to prison for 8 months.  The applicant had two previous convictions for disorderly conduct and common assault, in respect of both of which convictions he had been fined.

The defence case

9.The applicant gave evidence at trial, claiming that he had acted in self‑defence.  He said that when he was leaving Room 910 at about 2 pm, he came across PW1 who used an iron pipe to attack him on his forehead.  He therefore went back into his flat where he picked up a Swiss Army knife, the blade of which was not folded, in order to protect himself. Thereafter, PW1 again hit him on the head with the iron pipe.  The applicant managed to push PW1 out into the corridor and he returned into Room 910.  PW1 then dashed forward again to hit the applicant with the iron, landing a blow on his right arm, resulting in wounds to the index finger of his right hand.  As he retreated, he wielded the Swiss Army knife from right to left at the level of his breast.  During that process, he felt the knife come into contact with PW1’s body.  That, he testified, was how the injuries to PW1 were caused.  PW1 continued to attack him with the iron pipe.[3]

10.The applicant also said that he had been insulted by PW1 earlier that day at about 1:30 pm.  PW1 had come over to Room 910, kicked his iron grille and said “Shut up, moron”, before returning to Room 906.

Reasons for Verdict

11.The judge explained that the primary issues in the case turned on the credibility of the witnesses[4].  In this connection, he noted that the respective versions of PW1 and PW2 as to the background of the assault differed in part.  Whilst PW1 denied insulting the applicant with the words “Shut up, moron”, PW2 confirmed that she had heard PW1 say so[5].  Furthermore,PW2 had deposed in her witness statement that after PW1 was stabbed, he picked up the iron pipe and went to Room 910[6]; this was in contrast to the account of PW1 that he picked up the iron pipe to defend himself when initially attacked by the applicant.

12.The judge said that the attack on PW1 was “sustained, forceful – possibly one could characterise it as a frenzied – attack”[7]. As to how PW1’s injuries were caused, the judge said[8]:

“There can be, on the evidence I have heard, no dispute that the only way these injuries could have been sustained is by the use of this Swiss Army knife. It is a folding knife which was, on the admission of the defendant, in his hand at the time.

I found, having assessed the evidence objectively, that it would not be possible for these kind of injuries to have been caused by the actions evidenced to and displayed by the defendant.  My view is the defendant’s explanation was an attempt to exonerate himself with a self-serving explanation which clearly did not accord with the known and undisputable medical facts.  Furthermore, it is clear that the injuries sustained by PW1 are consistent with the actions of the defendant that PW1 testified to in his evidence.  This clearly bears on that issue of credibility which is the main issue that underlies the resolution of dispute of the evidence in this case.”

13.As regards certain contradictory aspects of PW2’s evidence, the judge said[9]:

“Her statement did differ from her evidence. But firstly, that part of the statement concerned what had happened after the defendant had stabbed and slashed PW1 and set upon him, sat on him and stabbed him. PW2 says that after that, he was able to pick up the iron bar and go to the defendant’s flat, so it did not, in effect, deal with the main thrust of the prosecution’s case and PW1’s evidence that he, PW1, was attacked by the defendant with the knife at the outset of the incident.

Secondly, PW2 says she was confused when she made the statement and that her account was filtered through a double translation from Thai to English and Chinese.  She seemed entirely genuine when she said this.”

14.In respect of the previous criminal convictions of PW1 and PW2, the judge said[10]:

“I consider that the fact of PW1’s history of violence towards others did not mean that he could not be believed or be the victim of violence himself. Nor did I find that PW2’s previous convictions for false statements meant that she should not be believed on this issue. In essence, I found both these witnesses were consistent and unshaken as to how PW1 sustained his injuries as a result of the attack by the defendant.”

15.In rejecting the evidence of the applicant and his account of how his own injuries were caused, the judge said[11]:

“I also found the defendant in this matter to be basically untruthful. His evidence was clearly not consistent with the known objective facts, and contained elements that lacked credibility. The only way for the PW1’s injuries to have been sustained was by the use of that Swiss Army knife, yet the defendant’s account of how he used the knife could not have caused the plethora of injuries sustained by the PW1, the multiplicity and extent of those injuries, especially the stab wound to the chest that required draining and surgical intervention. Furthermore, the slash up across the chest, together with the lacerations on the face and shoulder, could not be accounted for in his account, but they certainly were consistent, certainly the injuries on the head and shoulder, with PW1 having been sat on and stabbed.

His explanation also relies upon the knife, which is a folding knife, being left open, which appears to me to be a highly unlikely possibility for storage of such an item, especially left open on a cabinet near the entrance. This account by the defendant appeared to me to be contrived to suggest that the defendant picked up a weapon of opportunity rather than deliberately sought out and activated by unfolding the weapon of attack.

I did note the defendant had sustained some relatively minor injuries compared with PW1. These injuries in fact appear to be ancillary to the use of the Swiss Army knife; for example, the cutting injuries to the fingers. The bruise and scratch to his forehead is more consistent with PW1’s use of the iron bar to fend off the defendant himself, rather than the sustained assault that the defendant says he was subjected to.

I found the defendant to be fundamentally untruthful.  His account was contrived and exaggerated.  I had no hesitation in dismissing it and rejecting his evidence.”

16.The judge said that the injuries of PW1 no doubt amounted to grievous bodily harm[12]. Of the applicant’s intent to cause that harm, the judge said[13]:

“From the findings I have made, it is clear not only did the defendant inflict the wounds sustained by PW1, but also such wounds must have been inflicted with an intent to cause grievous bodily harm. The use of the knife in this way must lead to that irresistible inference that such an intent existed.”

The grounds of appeal

17.In his Form XI Notice, the applicant complained that “the trial judge inappropriately accepted (the) two prosecution witnesses to be honest and reliable witnesses”.

18.On 4 October 2017, the applicant filed a set of homemade written submissions, for which an English translation has been provided to me.  In his submissions, the applicant has raised a number of points, the more salient of which may be summarised as follows:

(i) If the attack happened in the way described by PW1, his injuries would be different from the findings in the medical reports.  For example, there would have been a lot of bleeding and stab wounds to PW1’s chest, as well as injuries to his head.  There was, however, no evidence of such wounds/injuries;

(ii) The judge wrongly accepted the evidence of PW1 that he had no chance to attack the applicant with an iron pipe.  If that was correct, there could be no reasonable explanation for the applicant’s injuries on his forehead;

(iii) The evidence of PW2 was incredible and should not be accepted.  In particular, PW2 did not have a clear criminal record; her evidence in court was substantially different from that in her witness statement; she might have collaborated with PW1 in order to give evidence which was consistent with his; and the judge should have borne in mind that she and PW1 were in an intimate relationship;

(iv) The judge had not properly stated the evidence of PW1 in relation to the final stage of the attack (vide paragraph 8 of his Reasons for Verdict).  The applicant said PW1’s evidence was that the applicant rode upon his waist and used the knife to “stab, stab, stab…” his chest (as opposed to the applicant sitting on PW1 and using the knife to stab his face and head, chest, armpit and shoulder);

(v) The judge wrongly rejected the applicant’s defence of self‑defence.  The infliction of serious injuries could be the result of, and was still consistent with, the act of self‑defence and was not suggestive of an intentional attack;

(vi) The applicant had no intent to attack PW1.  If he had had such an intention, he would not have used a folding knife with a 2½ inch blade.  The brandishing of such a knife would be consistent with causing irregular slashes at different parts of the body, which was consistent with the medical evidence;

(vii) PW1 should not have been found to be a truthful witness because of his previous criminal convictions.  He further elaborated on the reasons why PW1’s evidence was incredible;

(viii) The offence had not been proved beyond reasonable doubt.

I emphasise that the above is a summary of the more significant points made by the applicant in his written submissions. They do not purport to be exhaustive.

19.At the hearing of the leave application, I also heard further argument from the applicant, elaborating upon the above, and other, matters.  I should say that he had initially applied for an adjournment of the leave hearing in order to find a private lawyer, having been refused legal aid and the pro bono services of the Hong Kong Bar Association.  I refused the application, bearing in mind that his earliest date of release will be 23 December 2017.  In the event, the applicant showed that he was more than capable of engaging the Court in argument and putting forward the points he wished to make in support of his appeal.

The respondent’s submissions

20.Mr Daryanani contends that all of the applicant’s complaints were adequately dealt with by the judge.

Consideration

21.The issue in this case was classically a question of fact for the judge to decide.  In this particular case, that assessment depended essentially on the credibility of the witnesses, as confirmed or undermined by the objective medical evidence.

22.The applicant complains that the judge should not have accepted the evidence of PW1 and PW2 because of their previous convictions, the discrepancies between PW2’s evidence and her witness statement and the possibility of collusion between them.  I have to say that I have been concerned by the extensive and serious criminal record of PW1, as against the relatively minor record of the applicant.  However, it cannot by itself be determinative that the victim of a serious wounding has himself previous convictions for violence, even where they are far greater in number and gravity than the previous convictions of the defendant on trial.  What is necessary in such a case, where the complainant has a bad criminal record of previous convictions for violence, is that the judge or jury approach his evidence with caution, mindful that he may be casting himself as the victim when he was in fact the aggressor.

23.It seems to me that, although the judge did not specifically express any particular need for caution in evaluating PW1’s evidence, he was nevertheless alive to, and effectively addressed, this concern in his Reasons for Verdict.  He said that PW1’s history of violence, as well as PW2’s previous convictions for making false statements, were relevant to the issue of credibility[14], and that he had borne them in mind when assessing their evidence[15].  Also relevant to the issue of credibility were the criticisms that could be made of the testimony of PW1 and PW2[16]. However, he found that the way they said PW1’s injuries were inflicted was consistent with the objective medical evidence.  The judge found[17]:

“… it is clear that the injuries sustained by PW1 are consistent with the actions of the [applicant] that PW1 testified to in his evidence. This clearly bears on that issue of credibility which is the main issue that underlies the resolution of dispute on the evidence in this case”.

24.In respect of the discrepancies in PW2’s evidence, the judge clearly considered whether they impacted on his assessment of her credibility.  As for the suggestion of collusion, the judge noted that PW2’s evidence was not the same as that of PW1: for example, she confirmed the insult uttered to the applicant by PW1 at about 1:30 pm, which PW1 had denied.

25.In respect of the complaint that the medical evidence did not support PW1 and PW2’s account, the judge found, as I have just mentioned, that it did support the way they said the injuries had come about. Furthermore, he found that the applicant’s account was inconsistent with the “plethora of injuries sustained by PW1, the multiplicity and extent of those injuries”[18]. Moreover, the injuries to the applicant himself were “more consistent with PW1’s use of the iron bar to fend off the [applicant] himself, rather than the sustained assault that the [applicant] says he was subjected to”[19].

26.The judge further analysed the applicant’s evidence.  He gave reasons why he did not accept it.  And, viewing the applicant’s evidence against the injuries inflicted on PW1, he found his account inconsistent with the medical evidence.  I can see no reasonable grounds for saying that the judge may have been wrong to reject the applicant’s evidence.

27.The judge heard and saw the witnesses, which is an advantage an appellate court does not have.  As the Court in R v Li Chun Yue[20] put it, in the concluding paragraph of its judgment:

“In substance, this Court is asked to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the judge who heard and saw the witnesses at trial. This is not an exercise that this Court can undertake unless it is shown that the judge in some way failed in his duty. We must ask, has the judge’s evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way?”

28.I can at this stage see no obvious error, omission or flaw in the judge’s reasoning as to why he ultimately accepted the evidence of PW1 and PW2 and rejected the evidence of the applicant.  Indeed, it would perhaps have been surprising if the judge had accepted that the applicant had inflicted the catalogue of extensive and serious injuries found on PW1 in self-defence, when the applicant’s injuries were by comparison so minor, and when they were inflicted, at least on PW1 and PW2’s account, inside PW1’s own home.

29.I have considered the points made by the applicant in his written submissions, which I have summarised above, as well as in his oral remarks before me.  However, none of them, either individually or cumulatively, seem to me at this stage to provide reasonable grounds of appeal in a case which was essentially about credibility; an issue which appears to have been properly addressed by the judge.

30.The application for leave to appeal against conviction must be refused.  The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person