HKSAR v. Lo Tak Chi

CACC000269/1999

CACC 269/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 269 OF 1999

(ON APPEAL FROM DCCC NO. 152 OF 1999 )

Coram: Hon Stuart-Moore, V-P, Mayo and Wong, JJA

Date of Hearing : 26 November 1999

Date of Delivery of Judgment : 7 December 1999

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J U D G M E N T

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

Background

1. The Applicant was convicted after trial before His Honour Judge Wilson of one charge of causing grievous bodily harm with intent. He was sentenced to a term of imprisonment for two years. He seeks leave to appeal against his conviction.

Prosecution case

2. The prosecution case was that on the night of 3 November 1998, the victim (PW1) went to a karaoke "for fun" with two of his brothers and some friends. Having been ushered into a room, they were served by five hostesses. PW1 was served by a hostess by the name of Cherry. Together they sang, drank and played finger guessing games. As they were having fun, sharp words were suddenly exchanged between PW1 and Cherry who objected to PW1 squeezing her breasts. PW1 told Cherry to go and before she left she uttered some words to the effect "You had better be careful." PW1 took no notice of it and was served by another hostess. The group continued to sing, drink and play finger guessing games into the early hours.

3. At one point of time, another hostess (PW2) asked PW1 to go outside for a night snack. PW2 led him to a rear staircase where he saw Cherry standing there. When they were about to descend the staircase, the Applicant rushed up, punched him and pulled him downstairs where the Applicant and a group of 8-10 men beat up PW1 with fists and a stool. PW1 lost consciousness after the beating. He was taken to hospital.

4. The Applicant and Cherry were arrested several days later. Both were charged with causing grievous bodily harm with intent. Cherry who was D2 at the trial was convicted of the lesser offence of assault occasioning actual bodily harm while the Applicant was convicted of the offence as charged.

5. The Applicant did not give evidence and called no witness nor did D2. The judge found PW1 and PW2 to be reliable and truthful witnesses and accepted their evidence. A video tape from the karaoke's security video system also depicts the Applicant punching PW1 on the staircase.

Grounds of Appeal 1, 2, 3 and 4

6. There are a total of 6 grounds in the Perfected Grounds of Appeal. The first two grounds relate to discrepancies between the oral testimony of PW1 and PW2 and the discrepancies between their written statements and their oral evidence. There is no substance to these grounds as the evidence of the Applicant beating up PW1 was overwhelming. In any event, the discrepancies set out in the grounds can only be regarded as minor and insignificant ones which are to be expected from witnesses giving evidence of observations of events and recounting them from memory after the lapse of many months. These grounds fail.

7. Ground 3 complains that the judge failed to consider PW2's role in the assault. She was asked by D2 to lure PW1 to the rear stairs. There is no evidence whatever to suggest that she knew of any plan that PW1 was going to be beaten up. Even if she was an accomplice, and there is no evidence to this effect, it did not alter the fact that there was strong evidence that the Applicant assaulted PW1.

8. Ground 4 says :

"that the learned judge erred in deciding that the injuries received by PW1 were, in fact and in law, grievous bodily harm."

9. PW1 was medically examined and treated on 4 November 1998 and the medical findings were :

"multiple bruise marks and abrasions over head, face, right perriorbital region and back; a small cut wound over right side of tip of the tongue and suturing wound of tongue was done : X-ray of skull, chest, cervical spine and orbit revealed no fracture."

A tooth was chipped. He lost consciousness as a result of the beating. The judge found the injuries suffered by PW1 to be grievous bodily harm without apparently having fully considered whether the nature of the injuries amounted to really serious bodily harm. In saying this, it is to be noted that the judge said :

"D1 and his companions attacked PW1 causing injuries and those injuries, I find, to be grievous bodily harm. I find that D1 had an intent to do really serious injury and it is merely fortunate that PW1 was not in fact more seriously injured."

Grievous Bodily Harm

10. It has been held that to constitute grievous bodily harm, it is not necessary that the injury should be either permanent or dangerous, if it be such as seriously to interfere with comfort or health, it is sufficient, R v Ashman (1858) 1 F & 88. In the decision of the House of Lords in R v Smith [1961] A.C. 290, Viscount Kilmuir said at p.334 that "grievous means no more and no less than really serious" and that "bodily harm" needs no explanation. In R v Saunders [1985] Crim. L.R. 230, it was held that a broken nose was, on any view really serious bodily harm. R v Purcell (1986) 83 Cr. App. R. 45 was a case decided on intent rather than the meaning of grievous bodily harm. Purcell pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm. The prosecution accepted the plea as an alternative to attempted murder. There the victim was hit on the back of the head by Purcell with a hammer and she lost consciousness after Purcell had tried to strangle her. She received severe bruising and four cuts on the head which required suturing. The Court did not have the benefit of legal argument as to whether the nature and extent of the injuries amounted to grievous bodily harm.

11. The last case cited to us by Mr Zervos for the Respondent is R v Brown and Stratton [1998] Crim. L.R. 485. The issues there were whether the injuries amounted to grievous bodily harm or actual body harm and if the injuries did amount to really serious harm, whether the defendants intended to cause it. In that case, the victim had gross facial swelling, three missing teeth, a fracture of the nose, widespread lacerations and bruising. There was also evidence from a consultant that three teeth had been broken off and concussion suffered. The Court of Appeal (Criminal Division) in England quashed the convictions of causing grievous bodily harm with intent and substituted a verdict of inflicting grievous bodily harm on the basis of the misdirection by the judge on the issue of intent.

12. It has caused us much concern as to whether the injuries of PW1 could be properly described as grievous bodily harm. Having fully considered the matter and reviewed the authorities, we are not satisfied that they were, even though it is apparent that the Applicant's intention was to cause such harm to his victim.

Grounds 5 and 6

13. In view of our decision on this ground, it is unnecessary to deal with the remaining grounds in any detail. The fifth ground reads :

"that the learned judge erred in deciding that the injuries were caused with the necessary intent."

14. As we have already indicated, there was ample evidence of intent.

15. The sixth ground is that the judge erred in finding that PW1 had been hit with "chairs". There is no substance to this ground. Whether PW1 was hit with one chair or more than one chair is neither here nor there. There is clear evidence that PW1 was hit by the Applicant and he suffered injuries as a result of the beating. This ground also fails.

Conclusion

16. Accordingly, leave is granted and treating the hearing as the appeal, we allow the appeal and substitute a conviction for assault occasioning actual bodily harm, contrary to Section 39 of the Offences Against the Person Ordinance, Cap. 212.

Sentence

17. Following the result of the judgment which we have just delivered, we grant leave to the Applicant to argue the question of sentence.

18. We have heard submissions from both Mr McGowan and Mr Zervos and bear in mind that there was at the beginning of the trial an offer by the Applicant to plead guilty to assault occasioning actual bodily harm contrary to S. 39 of the Ordinance. The offer was rejected by the prosecution and rightly so because the facts which the Applicant was prepared to admit were quite different from those relied upon by the prosecution. We are also not impressed by the submission advanced by Mr McGowan that there was a disparity between the sentences imposed on the Applicant and the 2nd Defendant as their roles in this matter were different. This is a bad case of an offence under S. 39 and the injuries suffered by the victim were not insubstantial.

19. Treating the application for leave as the hearing of the appeal, we grant leave and allow the appeal. The sentence of 2 years is reduced to one of 18 months' imprisonment.

Representation:

Mr Kevin P Zervos, Acting SADPP for DPP/Respondent

Mr James McGowan instructed by Messrs Wong, Packwood & Co. for the Applicant