HKSAR v. Lau Wai Man

CACC000213/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 213
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 29 October 1998

Date of delivery of judgment: 29 October 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted of wounding with intent pursuant to section 17(a) of the Offences Against the Person Ordinance, Cap. 212 after a trial in the District Court before Deputy Judge Geiser. He now seeks leave to appeal against this conviction.

2. The offence took place in the early hours of the morning of 13 December 1997 at a Bar known as J. J. Bar at Sheung Shui. The victim and two of his friends were drinking at the Bar. The victim gave evidence that a man passed him on the way to and from the toilet which was near where he was. The man using foul language asked what he was looking at. The victim resorting to similar language told him that it was none of his business whereupon the man said that he was Lo Yeh one of the bouncers at the establishment.

3. Shortly after this the man returned with a group of his friends and dragged the victim outside the Bar. The man claiming to be Lo Yeh hit him with his fist and then broke a beer bottle over his head. He was kicked and punched by the other men while he was on the ground. The incident lasted two or three minutes. The police arrived and the men ran off.

4. The victim was taken to Fanling Hospital and thereafter transferred to the Prince of Wales Hospital where he was treated for multiple lacerations and abrasions.

5. Approximately three weeks later the Applicant was arrested by the police. He denied being at J. J. Bar on the evening in question or having any involvement in the matter. An identification parade was held and the victim identified the Applicant. Both the friends who had been with the victim gave a roughly similar description of the events which took place that night. Neither man was able to identify the Applicant.

6. The Applicant did not go into the witness box. He did however call the lady manager of the J. J. Bar who gave evidence that the Applicant was not at the Bar that evening. She also said that she had prior to the Applicant's arrest been approached by the victim who had asked her who the man was who had assaulted him. He had gone on to claim that the victim had said that he had a relative who was a station sergeant at a nearby police station. The Judge gave his reasons why he rejected this testimony.

7. As can be appreciated from this short summary of the evidence the crucial issue before the Judge was the victim's identification evidence. The Judge gave reasons why he accepted the victim's evidence.

8. The 1st and 2nd grounds of appeal are that:

"1. The learned Deputy Judge erred in failing to give himself a general warning about the dangers of mistaken identification (the Turnbull warning) in the present case which was substantially on identification evidence with virtually no other significant evidence against the Applicant: see Beckford & other v. R (1993) 97 Cr. App. R. 409; R Turnbull & another [1977] Q.B. 224.

2. When dismissing the possibility of PW1 simply being mistaken, the learned Deputy Judge erred in failing to remind himself of the special need for caution which should contain the exposing to himself the weakness and danger of identification evidence both in general and in the particular circumstances of the present case, in addition to a Turnbull warning: see Peter Paul Keane [1977] CA 247; R v. Tsang Pak Ming, unrep., Mag. App. No. 391 of 1988."

9. There is no merit in this ground. As has been indicated on numerous occasions there is no necessity for a professionally qualified Judge to spell out in detail all of the Turnbull criteria in his Reasons for Verdict. It is very clear from the Reasons for Verdict that the Judge was fully mindful of the dangers attendant upon placing reliance upon identification evidence. This ground fails.

10. Grounds 3A & 3B have been withdrawn by Mr. Yeung who represents the Applicant.

11. Ground 4 is that:

"4. The learned Deputy Judge also erred in excluding from his consideration all together the fact that PW1 did raise questions with PW2 and PW3 about who actually assaulted PW1; thus failed to consider the possibility of cross-pollination of evidence amongst the 3 prosecution witnesses on the sole issue in the present case, namely identification: See R v. Finley [1993] Crim. L.R. 50; R v. Gall [1990] 90 Cr. App. R. 64."

12. The simple fact of the matter is that neither PW2 or PW3 was able to identify the Applicant at the identification parade and their evidence at the trial was consistent with this. There was no need for the Judge to consider the possibility of cross pollination of the evidence of the three men.

13. Ground 5 is that:

"5. The learned Deputy Judge erred in failing to direct himself properly, adequately or at all to take the cautioned statement of the Applicant into consideration: see R v. HO KAM-SUM & LAI KWOK-WAH Crim. App. No. 695 of 1983; R v. CHENG CHIU (1980) H.K.L.R. 50."

14. There can be no doubt that the Judge would have been aware that the Applicant had denied any involvement in the offence when he was arrested. He would have weighed this matter in his mind in making the determinations that he did. There is nothing in any of these grounds.

15. This conviction was in no way unsafe or unsatisfactory and the application is dismissed.

Representation:

Mr. Albert Wong, S.G.C. (D.P.P.) for Respondent

Mr. Y.C. Yeung instructed by M/S Josip Ma & Co. for Applicant