The Queen v. Coelho Jimmy and Another

CACC000180/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Yang, C.J., Silke, V.-P. & Macdougall, J.

Date of Hearing: 6th September 1988

Date of Judgment: 6th September 1988

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J U D G M E N T

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Silke, V.-P.:

1. The two Applicants, Jimmy Coelho - "Dl" - and Tommy Coelho - "D2" - were convicted after trial before His Honour Judge Wilson in the District Court on four offences of wounding with intent, contrary to section 17 of the Offences Against the Person Ordinance.

2. On 12th October 1987 in the early hours'' of the morning, a group of persons went to Shek O and were in the barbecue area there. They had with them, and collected more, beer and were drinking it. While there, there was a quarrel with a person, identified as D2, who was in a nearby blue van with a girl. D2 was assaulted by Hung Kwai Yuen (PW1), who eras the victim referred to in the 1st charge of wounding, and another man. There had first been a wordy quarrel between them. The blue van left. This was between the hours of four and five in the morning.

3. At 6:00 a.m., the blue van returned and two men got out of it. Both were armed with gurkha type curved knives. They exchanged words with the group. One of the men said "chop" and it was then the evidence of Hung (PW1) that he was chopped by D2. PW1's girlfriend, Miss Lui Yee Fung, the victim named in the second charge of wounding, shouted at the two men to stop. She was told not to be "nosey" and was chopped. PW1 attempted to protect her his attempt was described as "embracing" her and was chopped on his back for his pains. In the course of melee, both Tam Lik Chuen and Wong Chu Kin, the persons referred to respectively in the 3rd and 4th charges also received chop wounds.

4. Another member of the general group, Hau Pui Hung (PW5), had left in order to get some petrol before the 6:00 a.m. return of the blue van. When he came back he saw a man running out of the beach area and getting into the blue van. He sensed that something was wrong, did a U-turn and chased the van. He stopped it by overtaking it and coming to rest in front of it. He said that van was driven by D2. Two men got out, neither of them being D2. They approached PW5 both carrying knives. He identified one of those as D1. He became somewhat frightened and prudently drove away

5. PW5's vehicle was then chased by the blue van. He informed a motor-cycle patrol policeman of what was happening and that policeman tried to stop the van unsuccessfully. He joined the chase. The van's number was CZ6192. A little later, a police vehicle also joined in but the van eventually got away. The registered owner of that blue van was Dl.

6. At trial D2 gave no evidence nor did D1. The latter did call several witnesses to establish an alibi for which he contended. This being that he was with them on the night of the 11th crossing into the 12th of October until after the hour when the chopping took place.

7. It was clear from the general evidence and the Medical Reports which had been agreed and were before the trial judge that all four persons named in the charges were wounded within the meaning of section 17.

8. The issue at trial was the identification of Dl and D2 as the persons carrying out the attack.

9. Mr. Hatton, who appears for Dl in this Court, attacks the trial judge's consideration of the evidence of identification and urges upon us that, in any event,  the evidence itself was such as to be insufficient to make these convictions safe and satisfactory, He suggests that where the trial judge referred to the sightings of Dl by Miss Lui (PW2), Mr. Tam (PW3) and Mr. Hau (PW5), as being "not mere fleeting glimpses", he had not fully evaluated the circumstances and conditions under which the identifications were made.

10. The judge was aware of difficulties inherent in an event of this kind where various people are being chased and being chopped and said at page 4 of his Reasons for verdict:

"All identifications were made not in the most ideal of conditions - at the break of day and in the heat of the moment. On the other hand they were not mere fleeting glimpses."

11. It was also contended that the trial judge failed to considered in particular that which was said to be a material conflict between the evidence of Mr. Hung (PW1) and that of Miss Lui: namely that Mr. Hung said that he and Miss Lui were attacked solely by D2 whereas Miss Lui said the attacker of Mr. Hung was D1. It must be remembered that there were two attacks on Mr, Hung. He had said that the first one, a face to face confrontation, was perpetrated by D2, It is correct that Miss Lui in her evidence referred to the attacker on that occasion as being D1. On the second occasion the attack upon Mr. Hung was on his back and Miss Lui was quite definite then that he was attacked by two persons, Dl and D2. She would have been, if the position "embracing" was correct, looking directly at them. It is correct that there was a lack of identification on identification parades of D1. Mr. Tan (PW3) did not identify him in the clearest terms and he did not identify him in Court nor did Mr. Wong (PW4).

12. Had it been necessary for the trial judge to depend on the identification evidence of Mr. Tam (PW3) alone, then it is unlikely that he would have considered that particular identification as being sufficiently strong to implicate Dl. Though we note that Mr. Tarn said in the course of cross-examination when it was put to him that he was not sure:

"Was sure, almost the same."

Secondly. When asked "On 22nd you picked out person most similar, but were not sure?" He answered: "I picked person who was same person as far as my memory goes."

13. Mr. Hatton has urged upon us also that the unsatisfactory nature of Mr. Hau's (PW5) identification of the 1st Applicant was not properly considered. It was a simple blank identification and no more.

14. This and the other evidence as to identity was there for the trial judge to evaluate. He was the seeing and the hearing judge. He was entitled to bear in mind the overall evidence of identification and he showed himself to be aware of the general circumstances in which those identifications were made.

15. It was also urged by Mr. Hatton that the trial judge took into consideration as primary facts probative of Dl guilt that which he should not. First: that Dl and D2 were brothers; second: that DI was the registered owner of the blue van; third: the matter of the wearing by D1 of spectacles at the time of identification parade on 22nd October 1967; fourth: the "minor healing wound marks on Dl's forehead and right palm". Of this last it is submitted that they were not matters which necessarily emanated from the general attack even though the persons at the scene had attempted to retaliate and defend-themselves both with forks and with feet and fists.

16. The passage in the Reasons for Verdict which encompasses these matters is headed "The Evidence Against Al". The trial judge there was clearly setting out matters which were pertinent to the case which was being made out in respect of Dl. In our judgment, he was perfectly entitled to bear in mind that D1 was the registered owner of the van and that he was. the brother of D2 who had, been the victim of the original wordy argument and assault at Shek O beach. The judge took the view that the wearing of the spectacles was a factor for his consideration when D1, being aware that he was going on to an identification parade wore them when they were of no use in relation to sight for they had plain lenses. He was of the opinion that this militated against Dl in relation to the generality of the prosecution's case. He was entitled to take these factors into account. They would not by themselves be matters indicative of guilt but in the matrix of the facts they were matters which were properly for the considered of the trial judge.

17. The "deference" of D1 was that of alibi. Witnesses were called. The first of those witnesses was a young girl, Luk Wai Ying, the live-in girlfriend of Dl. At the conclusion of the evidence Mr. Hung  (PW1) said, obviously in answer to a question from counsel then appearing for the Crown:

"The girl with A2 I saw first, but not since then. But she is in court now."

And he indicated Miss Luk in the gallery. This evidence remained uncontested in cross-examination. She remained in Court throughout the proceedings.

18. The judge quite clearly was skeptical, and stated himself to be so, in considering the evidence of the alibi witnesses. He accepted that despite cross-examination, they had not been "broken down". He nevertheless came to the view - and again this was an assessment of witnesses whom he had seen and heard in the overall context of the case - that he did not believe them. It is difficult for this Court in those circumstances to say, unless there is something plainly wrong on the face of the record, that he was not entitled to come to that conclusion.

19. In respect of D2, Mr. Ong has adopted to an extent some of the arguments of Mr. Hatton. A joint complaint is that when the victims gave their first statements to the police they failed completely - and deliberately - to mention the original assault on D2. Of this the trial judge was fully aware. There was cross-examination. An explanation was given that they were afraid to mention that incident because they thought it might be suggested that they themselves had started the fracas. The trial judge considered the issue, evaluated it and cane to the conclusion that it did not detract to any great extent from the evidence they gave in Court. He has not been shown to be wholly wrong in his assessment.

20. Further, Mr. Ong urges us that there were differences between the witnesses as regards the actual details of the assault. There were. But then it must be remembered that each witness in a matter of this kind tends to see that which he himself sees and not necessarily what others see. These are not discrepancies which cause us to doubt the evaluation by the trial judge as to the credibility of the witnesses upon whose evidence the prosecution case was based.

21. The case against the Applicants was basically the identification evidence given by the witnesses. The manner in which those witnesses gave their evidence in Court was for the judge to evaluate. While we have considered the complaints made in relation to the judge's treatment of that evidence we do not think those complaints to be justified. There was ample evidence in respect of D2 upon which a tribunal properly directing itself could come to the conclusion that he was a participant in the offences charged. The identification evidence in respect of Dl was not of the same full strength but it was, on the same basis, sufficient to justify the judge in the conclusions to which he came.

22. In the circumstances, the applications for leave to appeal against conviction are refused.

Representation:

A.J. Hatton, Esq. (Simon M. Chan & Co.) for 1st Applicant.

Jack Ong, Esq. (Simon M. Chan & Co.) for 2nd Applicant.

I.G. Cross, Esq. for Crown/Respondent.