The Queen v. Lau Kai-wing

CACC000204/1988

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BETWEEN

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

Date of Hearing:13th September 1988

Date of Delivery of Judgment: 13th September 1988

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J U D G M E N T

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Macdougall, J.:

1. This is the judgment of the Court.

2. The applicant, who was charged before His Honour Judge Evans in the District Court both with assault with intent to rob, and with being in possession of an offensive weapon in a public place, was found not guilty on the first charge but was convicted of the lesser offence common assault and on the second charge. He now seeks leave to appeal against both convictions.

3. The principal witness for the prosecution was a young lady who testified that as she was descending the staircase of a residental building, she noticed the applicant ascending it some six steps in front of her. Her attention was particularly attracted to him because although she had resided in the building since birth, she had never seen him before. Moreover, he was staring at her, and she sensed that he was up to something. She felt afraid and, as he came along side her, was preparing to quicken her step when he suddently caught hold of her around her neck with his left arm and pushed her into a sitting position against the staircase wall. She grasped hold of his arm and, as she could see down the staircase into the street below where pedestrians were passing by, shouted for help.

4. The applicant ordered her not to make any noise and attempted to stifle her cries by placing his right hand over her mouth. She attempted to pull his hand away with her free hand and, at the same time, bit his fingers. This caused him to release into her hand something he had been holding in his own hand while he was covering her mouth. She discovered that it was a knife. The applicant managed to disengage himself and ran down the staircase into the street with the young woman in hot pursuit. On reaching the street, the young woman momentarily lost sight of the applicant behind a hawker stall, but, on rounding it, found that he had been pressed to the ground by a male pedestrian who was grasping him by the collar. The police soon arrived and arrested the applicant. He made no response to the police officer who informed him of the reason for his arrest.

5. The applicant testified that he had been temporarily off work due to an injury he had sustained to his foot while jumping to the ground from scaffolding in the course of his job as a painter. On the day of the incident with which in this case is concerned, he was on his way to a teahouse to receive wages from his employer when, on passing a hawker stall, his foot suddenly became painful. He obtained permission from the hawker to sit on a stool in front of the stall.

6. After he had been sitting, there for about three minutes the young woman came up and said that she recognised his clothing and that it seemed he was the one who had robbed her. She then requested some passers by to watch him while she summoned the police. The applicant denied that he had been grabbed by the collar and pressed to the ground. He claimed, however, that he had told the police officer that he had not robbed the young woman.

7. It was not disputed that at the time of his arrest, the applicant was suffering from an injury to his foot. Although no explanation was offered by the young woman as to how he had sustained this injury, it is entirely possible that it may have occurred during his headlong fight down the staircase into the street or during the course of the scuffle with the passer by who had apprehended him.

8. The judge found the young woman to be a most impressive, reliable and honest witness who had clearly told the truth. He carefully analysed her testimony concerning her identification on the applicant as the man who had attacked her on the staircase. Notwithstanding that the lighting at that section of the staircase where the incident occurred was not particularly good - consisting as it did of reflected light from the landing on the first floor and of light from ventilation openings in the staircase wall - and that, due to an injury, the young woman was unable to see with her left eye, the judge was satisfied that she could clearly see the applicant. He accepted her testimony that she had a good look at the applicant's face for 5 to 6 seconds as he was approaching her and for a further 10 seconds or so during the course of the struggle.

9. The judge also bore in mind that there was no evidence of any injury to the applicant's fingers. However, apart from the applicant's testimony to that effect, there was no evidence that after his arrest any examination of his hand had revealed an absence of teeth marks or injury. The police officer who had handcuffed the applicant did not notice any marks on the applicant's fingers, but he did not specifically examine his hands with a view to looking for injuries. Moreover, the young woman had testified that she had recently had dental treatment necessitating the application of a temporary plaster to her teeth which would have had the effect of blunting her bite.

10. The judge stated in his Reasons for Verdict that he postively disbelieved the applicant. Being convinced of the young woman's truthfulness and reliability, he was left in no doubt that it was the applicant who had attacked her and that he was in possession of a knife at that time. However, as the applicant had neither announced that it was a robbery nor taken anything from the young woman, the judge rightly found that there was insufficient evidence on which to convict him on the charge of assault with intent to rob. Instead he convicted him of common assault, which by virtue of section 32 and the schedule to the Theft Ordinance, is an alternative verdict to one of assault with intent to rob.

11. The applicant has advanced in effect two broad grounds of appeal. The first is the standard ground chat the judge was prejudiced against him. Nothing the applicant has said or referred to in the record of proceedings persuades us that there is the slightest force in this allegation.

12. The second ground is a compendium of factors that the applicant contends should have thrown doubt on the testimony of the young woman. Among these matters are, first, the dimness of the lighting in the staircase; secondly, a supposed contradiction between her alleged testimony that the assailant had grasped her around the neck from the front, whereas in a statement she made at the police station she allegedly claimed that he had grasped her from behind; thirdly, a further supposed contradiction that she had claimed in the same statement that his hand was wounded and bleeding, whereas she had allegedly said in court that he had not been hurt; fourthly, that she had allegedly prevaricated in court about the condition of her left eye; and fifthly, an allegation that her testimony conflicted with that of the arresting officer as to the position the applicant was in when the police arrived, and whether he was handed over to them by a passer by.

13. We are satisfied that the judge properly considered the condition of the lighting and whether it was sufficiently bright to enable the young woman to see the applicant's features. It is true that in the course of cross-examination the young woman was asked whether she had told the police that the assailant had walked past her before he grabbed her by her neck. However, after she had denied that she had said this, the matter was taken no further. As to the other alleged contradictions and prevarication, we are unable to find anything in the record of proceedings that causes us to doubt the correctness of the judge's finding.

14. The applicant also complained that the police had "adopted improper procedures" by not cautioning him at the scene of his arrest, by not searching for witnesses to the incident and, on being told by the young woman that she had bitten the applicant's hand, by not examining it to see whether this was so.

15. First, it was not alleged that the applicant had made a statment at the scene or indeed at all. The absence of a caution is therefore irrelevant. Secondly, the arresting officer testified that he had made inquiries from the bystanders at the scene whether there were any witnesses to the incident but that no one was willing to come forward. Thirdly, assuming that the young woman had told the police at the scene that, he had bitten the applicant's hand, it was open to the applicant to show his hands to the police to demonstrate to them that they were unmarked, if that were so. However, the applicant failed to do this. We accept that the young woman denied that she had told the police at the scene that she had bitten the applicant, whereas the arresting officer testified to the contrary. However, we do not consider that this was a conflict of such importance as to undermine the judge's assessment of the young woman as a truthful, and reliable witness.

16. In expanding his grounds of appeal before this court, the applicant complained that although he had asked that the knife be tested for finger prints, there was no evidence at the trial as to whether this had been done. For the purposes of this appeal we gill accept that his finger prints were not found on the weapon, for if they had been, it is likely that there would have been prosecution evidence to that effect. However, the absence of his finger prints on the knife is by no means conclusive that he did not have the knife.

17. None of the matters raised by the applicant causes us to doubt the correctness of the judge's conclusion that the applicant was guilty of both offences of which he was convicted. The application for leave to appeal against conviction is therefore refused.

Representation:

Mr. I.G. Cross Crown Prosecutor for Crown.

Mr. LAU Kai-wing - applicant - in person.