HKSAR v. Au Koon Yip and Others

CACC000168/2003

CACC 168/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 168 OF 2003

(ON APPEAL FROM DCCC 1238 OF 2002)

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Coram: Hon Stuart-Moore VP, Woo VP and Cheung JA

Date of Hearing: 27 February 2004

Date of Judgment: 27 February 2004

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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):

Background

1.On 28 March 2003, the Applicants (D1, D2 and D3 respectively) were convicted in the District Court following a trial before Judge Toh of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212. They were each in due course sentenced to four years' imprisonment.

2.The Applicants now seek leave to appeal against conviction.

3.The circumstances of the attack, which left the victim badly injured, were relatively straightforward. The victim described how he had been playing snooker in the Viking Recreation Club in Fanling just before he was attacked by four or five men. Some of them were carrying knives. As he ran out of the club into the street, he bumped into three or four people and fell down. These people helped him to his feet and were quite separate from the group who had used knives to cut him a few moments earlier.

4.Just prior to the attack, which occurred on 25 May 2002, Mr Lam (PW2) had been outside the bar of the club when he saw a taxi stop outside. Three or four men, according to him, got out of the taxi and went into the club. Two or three minutes later, PW2 saw the victim and was asked to call the police. At about that time, PW2 saw three or four men getting into the taxi he had seen earlier. He was not sure if they were the same men but he noted the registration number of the taxi in his mind and in due course passed this on to the police.

5.The taxi, registration number KB 3545, was eventually located by the police. D1 sat in the back of the taxi with bloodstains on his clothes and when he was asked why there were stains on his clothes, he made no reply. D2 was in the front passenger seat and when he was asked to get out of the taxi, he tried to escape. He was arrested and cautioned and replied: "It was not done by me, I came to have a meal". D3 was in the back of the taxi and also tried to make his escape.

6.The immediate area around the taxi was searched and a white knife sheath (Exhibit P.13) was discovered on the roadside to the left of the taxi. In due course, this was established to have the victim's blood on it. Later, three knives with blood from the victim on them were found in the vicinity together with gloves, two black knife covers and two caps.

7.A forensic scientist, Dr Cheung, gave expert evidence about the bloodstains on the clothing of each of the Applicants. The T-shirt taken from D2 (Exhibit P.24) was found to have blood on the back and the front. The description of his evidence given by the judge in her Reasons for Verdict was as follows:

"8. .... Dr Cheung was able to tell that the bloodstains on the front of the T-shirt showed an impact pattern and this impact pattern was caused, he said, when the blood source in front of (D2) received a blow of force resulting in the random dispersion of the blood. He said it could be a beating because the circular bloodstains could be formed when the blood travelled towards and hit the front of the T-shirt horizontally and perpendicularly. He said this indicated that the impact site could be close to and in front of the left of the T-shirt when (D2) was standing or sitting upright.

9. On his right shoulder was a cast-off pattern of bloodstains which extended to the back of the T-shirt and he said that this could have been when a bloodstained object was swung backward over (D2's) shoulder which resulted in the blood droplets cast or thrown off from that moving object.

10. His conclusion was that it was likely that (D2), who is the wearer of that T-shirt, had hit a blood source in front of him by swinging an object over his right shoulder.....

11. The next exhibit that was examined, P25, is D2's trousers which he was wearing at the time of arrest. Bloodstains were found on the front of the right leg of the trousers which suggested that the blood droplets had travelled from a position above and in front of the trousers when D2 was in an upright position." (Appeal bundle pp. 27-28)

8.The judge went on to deal with the clothing which bore bloodstains worn by D1. In his case, his jeans (Exhibit P.28) were found to have a "cluster of bloodstains" on the front of the left leg. The shape of the bloodstains suggested that the blood had travelled downwards from above when D1 was in an upright position. Dr Cheung's conclusion was that this did not appear to have been caused from an impact on the blood source.

9.D3 was also wearing a pair of jeans which were bloodstained at the front. The conclusion arrived at by Dr Cheung was, in the words of the judge:

".... the size of the stains would suggest that it could have come from an impact on a blood source close to the jeans and impact could be that of a beating." (Appeal bundle p. 29)

10.The only major issue to be decided at trial was whether the Applicants were in the group who took part in attacking the victim. None of the Applicants chose to give evidence but it was apparent from the cross-examination of the expert, Dr Cheung, that the case presented on their behalf was that the victim had accidentally bumped into them as he was making his escape after he had been subjected to several very serious knife wounds.

11.In her findings, the judge stated:

"22. Having considered all the prosecution evidence, I am left in no doubt that the only irresistible inference I can draw from the evidence is that these three defendants were the assailants who chopped PW1 (the victim). I have also no doubt that in accepting Dr Cheung's evidence, (D2) was one of those who wielded a knife that chopped PW1 causing the pattern of bloodstains on his T-shirt as observed by Dr Cheung. I also have no doubt that the knife sheath, P13, was thrown from the taxi by one of the defendants when they were stopped by the police." (Appeal bundle p. 30)

12.The evidence of the victim's blood being found on the clothing of each of the Applicants was an important part of a wider picture. The blood pattern on D2's clothing was particularly significant and would have justified in itself, had it stood alone, the finding that D2 had been wielding a knife.

13.The judge also found, as she was entitled to do, that the knife sheath had been thrown out of the taxi by one of those in the Applicants' group. This, again, was strongly indicative that the Applicants were part of the group who had attacked the victim. It is true that the three knives found in the vicinity could not directly be connected to the Applicants. However, these were plainly associated with the crime as each of the knives had the victim's blood on them.

14.The evidence of PW2 was also significant in that he witnessed a group of men arriving at the club before the attack and a group of men leaving in the same taxi just after it. In the circumstances, the flight by the three Applicants who were discovered in the taxi when police stopped it was hardly consistent with innocence and gave rise to a strong inference, as the judge stated, that they were the guilty culprits.

Grounds of appeal

15.The first ground of appeal made on the Applicants' behalf by Mr Wong Man-kit, SC, raised the complaint that the judge was in error when she said:

"There is no evidence before me that these three defendants were the people whom (the victim) had bumped into on his flight from his assailants because (the victim) was not able to see who these persons were." (Appeal bundle pp. 30-31)

16.Mr Wong, in support of this ground, referred to the evidence given by the victim that the "three or four" people the victim had allegedly bumped into after the attack were not amongst the same "four or five" people who had attacked him. Furthermore, when cross-examined in the court below as to whether the three Applicants had been his assailants the following dialogue took place:

"(Defence counsel): And I suggest to you that those three or four persons (who tried to help) were actually three people and it was these three persons in the dock. Is it possible? Have a look.

A: No.

(Defence counsel): They weren't the three that assisted you?

A: No. Because at that time it was very dark. I did not know the appearance, their face.

(Defence counsel): Let me suggest to you that these three were not the ones that assaulted you.

A: I agree.

(Defence counsel): Thank you." (Appeal bundle p. 45)

17.Prosecuting counsel then took up the matter in the passage which follows:

"(Prosecuting counsel): Mr Cheung, you told us earlier that you were not able to -- now I just want to clarify that earlier that you were not able to tell the appearance of the three assailants inside the snooker hall but then when this counsel asked you as to whether these three were those who assaulted you or wounded you, you were able to say they were not. So can you perhaps clarify that for us? How could you be able to say now that they were not the three assailants?

A: Sorry, your Honour. It is difficult to tell ....

(Prosecuting counsel): Just perhaps explain why you say 'difficult to tell'?

A: I don't feel they were.

(Prosecuting counsel): So you mean that it's just your feeling...

Court: Well, that's what he said.

(Prosecuting counsel): ...or...

Court: I don't think you can lead him in re-examination....

(Prosecuting counsel): So perhaps can I perhaps clarify with you that, are you sure that you were able to tell the appearance of those who assaulted you or not?

Court: No, I won't allow that. How does that arise in cross-examination?

(Prosecuting counsel): Your Honour, then I have no more questions." (Appeal bundle pp. 45-46)

18.Here, the matter was left, with the victim effectively having said that he did not "feel" the Applicants, who were then sitting in the dock, were the men who had knifed him in circumstances where it had been "very dark". All of this was encapsulated by the judge in her Reasons for Verdict, where this evidence was faithfully summarised.

19.Mr Wong went on to criticise the judge's decision to prevent further re-examination. Whilst we are a little surprised that the judge disallowed the last of prosecuting counsel's questions, which did not appear to have been in leading form, nevertheless we observe that defence counsel did not apply to cross-examine further.

20.This ground fails.

21.In the remaining ground of appeal, Mr Wong submitted that in arriving at the conclusion that the Applicants were guilty, the judge "failed totally to consider or even to mention the discrepancy" between what appeared in the admitted facts that one of the assailants had worn a "dark green short-sleeved T-shirt" and further admitted evidence that on arrest, D1 and D3 each wore a "black T-shirt" and that D2 was wearing a "grey T-shirt". It was submitted, therefore, that this supported the contention of the defence at trial that the Applicants may not have been the assailants but were instead the people who the victim bumped into as he ran away from his attackers.

22.A reading of the admitted facts, so far as they are relevant to this ground of appeal, shows that:

"MAK Tak Chuen (PW5) was the owner of Viking Recreation Club (a snooker hall) located at ground floor, No. 42 Luen Cheong Street, Luen Wo Hui, Fanling, New Territories ('the premises'). At about (11.00 pm) on 25.5.2002, he was attending the premises. At that time, there were only two customers on the premises namely, Cheung Kam Wah (PW1) and Yuen Ho who were playing snooker at the first table near the front door. There was no one else inside the premises. After 10 odd minutes, PW5 suddenly saw 3 men come into the premises from the front door. They were armed with long knives. The first one wore a dark coloured cap, a dark green short-sleeved T-shirt and dark trousers. They approached PW1 (the victim) and started chopping him. (The victim) and (Yuen Ho) tried to flee by the back door of the premises but without success. They then turned to flee by the front door. The 3 assailants chased after them and rushed out. PW5 then closed the premises. During the whole incident, PW5 sat by the cashier next to the front door and was so afraid that he dared not move or look but to take a glance at times only.

Meanwhile, Yuen Ho also saw 3 men armed with knives come into the premises. As he was running to the back door of the premises to escape, he noticed that (the victim) only was the target, as he was not attacked. He escaped through the front door and ran away from the scene. (Yuen Ho) recalled that one of the men was aged about 22 to 24, wore a dark cap and a pair of spectacles with round fronts." (Appeal bundle pp. 12-13)

23.From these facts, it is plain that there were two witnesses, namely PW5 and Yuen Ho, who saw three men armed with knives attacking the victim. One of the attackers was wearing, according to PW5, a dark green short-sleeved T-shirt.

24.However, this was not, of course, the entire picture which emerged from the evidence taken as a whole. The victim referred to "four or five" people running into the club to chop him with a knife.

25.In addition, PW2, whose evidence we have referred to earlier, had referred to "three to four men" getting out of a taxi and going inside the club. Importantly, however, later he again referred to "three to four men" getting back into the same taxi but when police located the taxi very soon afterwards, it is plain that the only passengers inside it were the three Applicants.

26.Whilst it is possible, therefore, that there were more than three men in the group that attacked the victim, on the whole of the evidence it was highly improbable based upon the eye-witness accounts of the participants involved coupled with the finding of three knives and three sheaths. Bearing in mind the dreadful injuries to which the victim was subjected, it is likely that his account as to the details of what happened, including how many men had been in the group which attacked him, was the least reliable of all.

27.The judge had not altogether overlooked the evidence given by PW5, saying that he had witnessed an assault by three men with knives. She did not, however, go on to make any reference to the account he had given, admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221, that one of the assailants had been wearing a dark green short-sleeved T-shirt.

28.Section 65C(1) and (3) provide for proof by formal admission, stating that:

"(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.

(2) ....

(3) An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial)."

The effect of this section was considered in R v Chan Chun-man [1986] HKC 261 where, at 266, Roberts CJ said:

"Section 65C provides that any admission tendered under that section in the proper manner shall be 'conclusive evidence' of that evidence.

We think that the section must be strictly construed. If it is not, its value will be lost. It is likely to happen, from time to time, that evidence which contradicts, or is inconsistent with, the contents of an admission, is given during a trial. If this occurs, the admission must prevail since it is conclusive."

29.It appears that the omission on the part of the judge to refer to this evidence was an oversight. This is not at all surprising as the point appears to have entirely escaped the attention of counsel as well. At no stage, did counsel for the defence make any reference to this point in his closing speech. Nevertheless, specific consideration had to be given to the important admission because, on the face of the admission under section 65C, it exculpated the Applicants' group, none of whom had been wearing a T-shirt of the description given by PW5. As this was admitted by the prosecution as having been worn by one of those in the attack-group, it was conclusive evidence that one of the attackers had been so attired, whatever compelling evidence there may have been which contradicted the admission.

30.The argument, advanced on the Respondent's behalf by Ms Anthea Pang, was that the evidence related to the colour of one of the T-shirts paled into insignificance against the remaining evidence in the case. Ms Pang submitted that the prosecution had presented powerful material from which an irresistible inference could be drawn that the three men found in the taxi when it was stopped by the police were part of the group, if not indeed the whole of the group of attackers. In the circumstances, she contended that this was a suitable case to allow the conviction to stand and, although she did not directly address the proviso, she suggested by her argument that the proviso could be applied.

31.On this ground of appeal, we consider that there was a material irregularity in the trial. It would appear that this important piece of evidence, admitted by the prosecution, had been overlooked by the judge in arriving at the verdict. Indeed, if it had been considered, despite the cogency of the other evidence in the case, it is difficult to see how the judge could have convicted.

32.No doubt this admitted fact had been inadvertently introduced by the prosecution under section 65C when it should have been admitted, if at all, under section 65B of the Criminal Procedure Ordinance as a written statement of a witness, who was as liable as any other witness in the case, to have been wrong in what he had stated as his belief. Section 65B(1) provides that:

"(1) In any criminal proceedings, other than committal proceedings, a written statement by any person shall, subject to the conditions contained in subsection (2), be admissible as evidence to the like extent as oral evidence to the like effect by that person."

Conclusion

33.We are satisfied, as the result of the reasons we have given, that the convictions were unsafe and unsatisfactory. A fundamental error in admitting evidence under section 65C instead of section 65B meant, in the particular circumstances of this case, that the prosecution had fatally undermined its own case.

34.Accordingly, we shall give leave. Treating the hearing in each case as the appeal, the appeals are allowed and the convictions are quashed.

35.Having regard to the terms of section 65C(3) of the Criminal Procedure Ordinance which we have set out earlier, a retrial would in all the circumstances be pointless as the prosecution's specific admission under section 65C(1) of the Criminal Procedure Ordinance, namely, that one of the attackers had been wearing a green T-shirt, wholly undermined its case that these Applicants, none of whom was wearing such a shirt, formed the group which had attacked the victim. In this context, it is right to add that section 65C(4) provides that "an admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter", but we consider that the nature of the victim's evidence, in which he deliberately appears to have attempted to exculpate the Applicants, makes a retrial undesirable and unrealistic. Accordingly, we shall not order a retrial.

Representation:

Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent.

Mr Wong Man-kit, SC, leading Mr Sammy W.C. Ho, instructed by Messrs Francis Kong & Peter Lau, for the Applicants.