Lam Kwok-tung and Others v. The Queen

CACC000219/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 219 OF 1974

Coram: Briggs, C.J., Huggins & Pickering, JJ.

Date of Judgment: 24 August 1975

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JUDGMENT

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1. The four appellants together with other persons not now before the court were convicted by the District Court of two counts of wounding with intent. On the first count they were each sentenced to 3 ½ years' imprisonment and on the second count to three years' imprisonment. The sentences were ordered to be served concurrently. All four appellants appealed against their conviction and in addition the second and fourth appellants appealed against their sentences. The fourth appellant abandoned his appeal against conviction.

2. In the event, the court allowed the appeal against conviction of the first and third appellants, but dismissed the appeal against conviction of the second appellant. The court allowed the appeals against sentence of the second and fourth appellants to the extent that the sentence of each appellant on each count was reduced to a sentence of 2 ½ years concurrent.

3. This case arose out of an incident which occurred at a restaurant in Hennessy Road, Wanchai, at about 4 a.m. on August 16th, 1973.

4. There were several persons using the restaurant at that time. As Tam Lai-keung and Sin Siu-yuen together with some other persons were leaving the restaurant they were confronted by a gang of persons who rushed into the restaurant. At least two of this gang were armed with long meat knives. Tam Lai-keung and Sin Siu-yuen were both struck with the knives and both suffered injuries. The first count of wounding refers to Tam Lai-keung, the second to Sin Siu-yuen. Of the two the wounds inflicted on Tam were the more serious.

5. One of the customers in the restaurant was a detective constable whose number is D.C. 7228. He tried to control the confusion which erupted in the restaurant upon the entry of the gang and in doing so he drew his revolver and shot the fourth appellant who was one of the persons holding a knife.

6. Originally, there were seven persons indicted in this case. The case for the prosecution was that all seven, including the four appellants, were members of the gang which erupted into the restaurant and that all of them were there with the common intent of wounding the victims and perhaps others as well. Two of the seven were acquitted in the District Court and one absconded during the trial.

7. We are therefore left with the four appellants. The whole matter turns on the question of identification. The incident took only a matter of a few seconds for the evidence was that everyone ran off as soon as the constable had fired.

8. The evidence of identification so far as the first appellant is concerned was insufficient to found a satisfactory conviction in our opinion.

9. At an identification parade, Tam Lai-keung, the victim of the first count, picked out the first appellant as being one of the invading gang. However, when giving evidence he said that he could not identify any of the attackers. He explained his positive identification at the identification parade by saying that he picked out certain persons, at the parade because it seemed to him that they were persons, not who attacked him, but whom he had seen on the evening of the attack.

10. The other victim, Sin, also picked out several of the accused including the first appellant at an identification parade. Finally, D.C. 7228 identified the first appellant and others at an identification parade. He identified one man wrongly, however, and so the trial judge found that it would not be safe to rely on his evidence as to identification without corroboration, apart from the evidence of Tam Lai Keung. The only evidence to corroborate that of D.C. 7228 was the evidence of Sin, the victim in the second count. Owing to the unsatisfactory nature of Sin's evidence of identification of the second and third accused in the court below, the trial judge thought it was unsafe to convict those two accused.

11. We think that the same reasoning applies so far as the first appellant is concerned. The evidence of identification - always a most difficult matter - was unsatisfactory and we think that it would be unsafe to allow the verdict to stand. We therefore allowed the appeal of the first appellant and quashed the sentence passed upon him.

12. The same reasoning applies to the conviction of the third appellant. The evidence of identification again came from Sin and D.C. 7228. There was some evidence that the third appellant and D.C. 7228 were known to each other and the trial judge seems to have accepted this. That evidence is not at all clear. We think that the conviction of this third appellant is unsafe and cannot stand.

13. This was a serious attack by a gang. The court was told from the Bar that the victims of the attack had been the aggressors a few hours previously. But though we have reduced the sentences of the second and fourth appellants it was not for that reason.

14. The record of the second appellant shows that he has no history of violence. There was no evidence that he was armed on the night in question. In addition, he has assisted the police on one occasion. We sent for a report on the fourth appellant whose background differs from that of the second appellant. The report was favourable. We also had the assistance of Mr. Sparrow on his behalf. It is true that the fourth appellant was armed with a knife but he did not use it. It was he who was shot through the body by D.C. 7228. He was not the ringleader and is only 16 years old.

15. We would like to have sentenced this appellant to detention in a training centre. Unfortunately, this is not possible because of the state of his health.

16. In the circumstances, as has been said above, the sentences of the second and fourth appellants were reduced to 2 ½ years on each count concurrent.

Representation:

Bernacchi Q.C. & K. Shean (K.C. Yung & Co.) for 1st appellant

Sanguinetti (Fordon Hampton & Winter) for 2nd appellant.

Sparrow (Hastings & Co.) assigned for 3rd and 4th appellants.

Barte, C.C., for Crown/Respondent.