The Queen v. Cheung Ping Kwong

CACC000149/1989

Headnote

No necessity for District Judge to give himself Turnbull direction. He should, however, indicate in his Statement of Findings that he has been mindful of the considerations to which Turnbull makes reference.

BETWEEN

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Coram: Hon. Silke, V.-P., Kempster & Power, JJ.A.

Date of Hearing: 5 January 1990

Date of Judgment: 5 January 1990

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JUDGMENT

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Power, J.A.:

1. The applicant, who is represented by Mr. Michael Ko Chun in his application for leave to appeal against conviction, faced two charges. The first was inflicting grievous bodily harm contrary to s.19 of the Offences Against the Person Ordinance. It was charged that he together with one HUI Hong-nin, on the 7th of July 1988, at Tai Po, together with other persons unknown, unlawfully and maliciously inflicted grievous bodily harm on one SO Chi-fai. The 2nd charge, which he also faced with HUI Hon-nin, was one of wounding with intent and it particularized that he and Hui, together with other persons unknown, unlawfully and maliciously wounded SO Kwok-fai, with intent to cause him grievous bodily harm. He pleaded not guilty to both of those charges and was, after trial, convicted on the 1st charge and acquitted on the 2nd. He was ordered to be detained in a Training Centre pursuant to his conviction on the 1st charge. He now appeals against both conviction and sentence.

2. The evidence of the Crown witnesses revealed a typical gang attack. The victim was in a group which included at least one girl. The group had been walking past the Kwong Lai House in the Kwong Fuk Estate at about 23.13 hours on the 6th of July 1988 when the victim had words with members of another group who were standing about outside Kwong Lai House. His group then went on to a place known as the helicopter depot and sat there and chatted until 2.30a.m. At that point ten males who included members of the first group among whom were the applicant and Hui attacked the victim with poles. After some time, about 15 to 20 minutes, he jumped into the sea and made good his escape.

3. The vital identification evidence came from a boy named SO Wai-tak (PW2) and from a girl named YUNG Miu-ling (PW3). PW2 said that at the time of the attack the lights at the helicopter depot were not too bright and not too dim and that he could see the faces of the people attacking clearly. He said that the attack lasted about 20 minutes and that during it his view was not blocked. At an identification parade held on the 18th of October 1988, some months later, he identified the applicant and he identified him again when giving evidence in court.

4. In his cross-examination he agreed that they were not too bright and not too dim and said it was like highway lighting. One feature of his cross-examination which is of some importance is that when asked how far away he was from the victim at the time of the attack he said "beside him". His evidence then, in summary, was that he was standing beside the victim when he was attacked, that the attack took about 20 minutes, that he was able to see the attackers clearly and that the light was, to use his words again, "not too bright and not too dim".

5. PW3 said that on the way to the helicopter depot she had spoken with the applicant and with the man Hui. She said in cross-examination that she had known these two for about six months. She said that later several people with poles came to the helicopter depot and that the applicant and Hui were in that group, that the applicant did not say anything but he hit SO Chi-fai with the pole, that she was not sure how many times, about five times, on the arms and the legs. It was her evidence that she was about 15 feet away from the victim and that the area was lighted by street lights. She also said that she had identified the applicant at an identification parade on the 18th of October.

6. In cross-examination she said that the attack lasted for about 15 minutes.

7. The appeal rests, in the main, upon the submission that the trial judge failed to give himself a Turnbull direction. It is further submitted that even if he had given himself such a direction, and heeded it, he must have found the evidence to be of such poor quality that it made out no case to answer against the applicant.

8. It is also submitted that there was no evidence to establish the ingredient of grievous bodily harm.

9. The first matter raised is whether it is incumbent upon a District Judge sitting without a jury to set out in his Statement of Findings a specific Turnbull direction. It is to be noted that in the case of PW3 this was not an identification case but a recognition case and that this was by no means, in the case of either of the identification witnesses, a "fleeting glance" situation.

10. Lord widgery, C.J. in R. v. Turnbull (1977) Q.B. 224 said at 228:

The Lord Chief Justice then went on to indicate a number of considerations to which, in appropriate cases, the trial judge should make reference when directing the jury. He then went on to say:

"Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger"

11. We have here, as I have already said, a case which was dealt with by a District Court Judge. We are satisfied that a District Judge is not necessarily called upon to be seen to give himself an explicit warning in the terms of Turnbull. He should, however, show that he has been mindful of the considerations to which Turnbull makes reference.

12. The trial judge said when assessing the evidence of PW2:

"PW2, So Wai Tak, described the attack on So Chi Fai in detail. The lighting which he described as not too good or not too dim, did not prevent him from seeing the faces of the attackers clearly. The attack lasted for about twenty minutes. During this time he was watching. At an identification parade at Tai Po Police Station on 18.10.88 he picked out both defendants as being two of the gang who beat So Chi Fai."

13. When dealing with the evidence of PW3, he said:

"Yung Miu Ling described the attack on So Chi Fai which lasted for about 20 minutes. She knew both of the defendants in court. They were friends of hers having got to know them about six months ago. She had a discussion with them during which time they enquired when she was having them out to tea. Later that night they came back with a group, they had poles and beat up So Chi Fai. She witnessed this assault from a distance of about 15 feet. D2 apologized to her for having to beat one of her friends whom he alleged said some wrong things. At an identification parade held at Tai Po Police Station on the 18.10.88 she identified both defendants."

14. He said when referring to the evidence of both PW2 and PW3:

"I am satisfied that these witnesses were honest and truthful and put the facts as they saw them before the court. I have no hesitation in accepting their evidence. They had  ample opportunity to see the defendants during this twenty minutes."

15. The trial judge was, we are satisfied, clearly mindful of the Turnbull considerations. He took into account, as the passages I have read show, the lighting at the scene, the opportunity to observe, the length of observation and, in the case of PW3, her prior acquaintance with the applicant. He was satisfied, to paraphrase the words of Turnbull, that the quality of the identification evidence was good and remained good at the close of the accused's case.

16. One further matter raised was the suggestion that the judge failed to give proper consideration to the weight of the evidence as to the lighting at the scene. We see nothing in this. The weight of the evidence established, we are satisfied, that the lighting at the scene was as the judge found it to be - not too good and not too dim but not such as would prevent the witnesses, who were able clearly to see the faces of the attackers, from making a positive identification.

17. The trial judge showed himself to have been mindful of all material factors there is, therefore, nothing in the first two grounds.

18. I turn to the third ground which was that there was not sufficient evidence to establish the element of grievous bodily harm.

19. Mr. Bruce for the Crown concedes that the evidence was not sufficient to establish grievous bodily harm. He submits, however, that there was clear evidence which the trial judge must have accepted to establish actual bodily harm. We are satisfied that the trial judge must on the facts have been satisfied that the appellant was guilty of an assault and that the assault resulted in actual bodily harm to the victim.

20. We call into play, as Mr. Bruce has urged us to do, s.83A(2) of the Criminal Procedures Ordinance as applied to the District Court by s.83 of the District Court Ordinance. By virtue of the provisions of that section we allow the application and substitute a verdict of guilty of an assault occasioning actual bodily harm under s.39 of the Offences against the Person Ordinance for that of inflicting grievous bodily harm.

21. This Court having, under s.83A(2), substituted the verdict of assault occasioning actual harm for the original verdict of inflicting grievous bodily harm is now required to pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for this other offence, not being a sentence of greater severity. The applicant, who appears for himself in his appeal against sentence, has urged that the hardship to his family is such that we should, taking a compassionte view, order his immediate release from the Training Centre. We are satisfied that the order for detention in a Training Centre was entirely appropriate and nothing that he has said occasions us any doubt as to the propriety of ordering that such detention be continued. We are satisfied that the interests of the applicant require that he complete his period of training. We order that he be detained in a Training Centre.

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent.

Mr. Michael Ko Chun (D.L.A.) assigned for the Applicant on Conviction.

Applicant in person on Sentence only.