Cheng Kwan Sang v. R.

CACC000252/1994

IN THE COURT OF APPEAL

1994, No. 252
(Criminal)

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Coram: Hon Macdougall, V-P, Ryan J., and Stuart-Moore, J in Court

Date of hearing: 15 November 1994

Date of delivery of judgment: 15 November 1994

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J U D G M E N T

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Ryan, J.:

1. The applicant faced three charges of wounding with intent, contrary to s.17 of the Offences against the Person Ordinance, Cap. 212. He was tried along with two others before H.H. Judge Whaley and at the conclusion of the trial was convicted in respect of two of the charges of wounding with intent. The remaining charge was reduced to unlawful and malicious wounding and he was convicted. He now applies for leave to appeal against those convictions.

2. The brief facts were that on 12th November 1992, PW1 and his two sons, who were PW2 and PW3 in the trial, were followed home by a person who was the 3rd defendant in the trial. That person accused PW3 of having stared at him and after using abusive language he departed. A short while later the wife of PW1 went to put out some rubbish. PW2 went to see that all was well and while doing so, he was attacked by a group of young men. PW1 and PW3 came out to give PW2 assistance and with the use of mop handles and buckets, they managed to drive off the attackers and to apprehend one of them.

3. A group of persons then approached the prosecution witnesses and demanded that they release their friend. Some of this group were armed with poles, some with water pipes, some with knives and some were unarmed. When the prosecution witnesses refused their request the group attacked them. PW1 sustained multiple abrasion wounds on his upper right arm, on his chest and head. PW2 sustained a 4 cm cut wound on his left shoulder and PW3 a deep and long cut wound to his left upper arm, extending to below his elbow. When the prosecution witnesses called for help, the assailants ran off.

4. The applicant was arrested sometime later and under caution made a statement. The admissibility of the statement was challenged at the trial. The applicant did not give evidence in the voire dire and on the evidence that the judge had before him, he was satisfied that the applicant's statement had been made voluntarily and he admitted it into evidence.

5. In the statement, the applicant is recorded after caution as having said that he took no part in chopping people, but that he had gone there and that he was the last one to do so. In response to questions from the interviewing officer, he said that at about 7:00 p.m. he had heard a noise outside his hair-dressing salon where he was working and he had gone out to see what was happening. He saw a friend Sze Mui who told him that a group of his friends were quarrelling with other persons upstairs and he asked him to give assistance. He and Sze Mui went to the 8th floor where they saw a fight taking place. He saw a person fall to the ground and he ran up and kicked that person twice before leaving and going downstairs. In the statement he is also recorded as having said that he saw a knife being held but that he didn't know who was holding it. He said he had agreed to go with Sze Mui to give assistance because they were friends.

6. The applicant did not give evidence in the trial but he called an alibi witness, his employer, a Mr Lam who said that at the time of the fight he had the applicant within his sight, and that the applicant could not therefore have been a participant in the fight.

7. The judge in his Reasons for Verdict said:

"It is an irresistible inference that he saw the wooden poles and knives and water pipes with which the group of friends were attacking the complainants, and indeed he admitted in his statement that he saw someone holding a knife."

The judge considered the alibi evidence and rejected that as being untrue. He was satisfied that the contents of the statement made under caution were true and on the basis of this evidence said:

"It is clear beyond reasonable doubt that he made common cause and acted in concert with Sze Mui and the others whom they ran up and joined on the 8/F, who were fighting with the complainants. Seeing them armed with poles, pipes and at least one knife, he joined in the attack at the least (on his own admission) by giving two kicks to someone whom he saw falling (who on the evidence of the complainants was PW1).

He is in law liable for the actions of the whole group whom he thus joined and participated with."

8. The Judge was satisfied that when the applicant joined in the assault he must have foreseen that his friends, armed as they were with poles, water pipes and at least one knife might do what they did.

9. On the basis of the evidence that he had before him, the judge said that he was not satisfied that the group had intended to cause grievous bodily harm to PW1 and in respect of the 1st charge which related to PW1, he convicted the applicant on the lesser charge of unlawful and malicious wounding, contrary to s.19, Cap. 212. In respect of the other two charges, he was satisfied from the weapons used and the injuries sustained that the group had intended to cause grievous bodily harm to PW2 and PW3 and he accordingly convicted, in respect of those persons, as charged.

10. In his home made grounds of appeal, the applicant complains that he was not identified by any of the complainants at identification parades. It was never suggested at the trial that he was and the Crown relied upon the contents of the statement made under caution. He also complains that the 1st defendant at the trial was discharged, which is true. The 1st defendant gave evidence in the voire dire and made allegations of assault in respect of the police officers. The judge was not satisfied beyond reasonable doubt that that statement had been made voluntarily and he did not admit it into evidence, from which it followed the 1st defendant was discharged.

11. As I have said the applicant did not give evidence in the voire dire. On the evidence that the judge had before him, he was satisfied that in respect of the applicant the statement had been made voluntarily and that was a decision he was entitled to come to.

12. A further ground of appeal is that the employer of the applicant had testified to his having been at the hairdressing salon at the material time. The judge had properly considered that evidence and was satisfied that it was not true and he rejected the employer as a credible witness.

13. The grounds of appeal therefore fail and the application to appeal is refused.

Representation:

Mr D.G. Saw, Crown Prosecutor, for Crown

Applicant Cheng Kwan Sang in person