R. v. Chee Yan Fat

CACC000296/1995

IN THE COURT OF APPEAL

1995, No. 296

(Criminal)

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Coram: Hon Litton, V-P, Mortimer and Ching, JJ.A.

Date of hearing: 15 August 1995

Date of judgment: 15 August 1995

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J U D G M E N T

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Litton, V-P, giving the judgment of the Court:

1. The applicant was convicted after trial in the High Court on 31 May 1994 on two counts: 1) wounding, contrary to s.19 of the Offences against the Person Ordinance, and 2) possession of a firearm at the time of committing an offence, contrary to s.17(2) of the Firearms and Ammunition Ordinance.

2. These convictions arose from an incident which occurred in the early hours of 2 March 1992 at the Library Karaoke Lounge on the first floor, Houston Centre, 63 Mody Road, Kowloon when a young woman Miss Chow Chui-ling was shot in the right shoulder. The applicant now seeks leave to appeal against conviction.

The facts

3. The facts are these:

1) In March 1992 Miss Chow worked as a hostess at the China Palace Nightclub.

2) At about 4:15 a.m. on 2 March 1992 Miss Chow went to the Library Karaoke Lounge together with another hostess Miss Chan Suk-ling and a man called Tai Hou. The three of them sat at table no. 7.

3) Shortly after that a man came into the room where Miss Chow Miss Chan and Tai Hou were sitting, brandishing a gun. The gun was pointing in the direction of table no. 7. A group of about five or six people were trying to restrain the gunman. Two shots were fired. One hit the ceiling, the other hit Miss Chow in the right shoulder. Only one spent bullet was recovered, that extracted from Miss Chow's shoulder. The bullet was not deformed, which suggests that it had not ricocheted from a hard surface like the ceiling.

4) Among the persons who witnessed the incident was a Miss Lam Sau-chun who worked at the Library Lounge as a disc jockey, cashier and hostess. Miss Lam had at one time an intimate relationship with the applicant who was known by the nickname 'Har Luk'.

5) After the shooting, Miss Chow was taken to hospital in a taxi and everyone left the Library Lounge except for Miss Lam, Miss Au Yuk-ling the owner of the lounge, Tai Hau and the bartender Mr Giang. The gun had been left behind by the gunman and Miss Au (who apparently was drunk at the time) gave the gun to Miss Lam who wrapped it up in a towel and threw it into a flower-bed at the back of Houston Centre.

6) The applicant left Hong Kong for China through Lo Wu at 7:15 a.m. on 2 March 1992. He returned on 2 June 1992, three months later.

7) When interviewed by the Police on 2 June 1992 the defendant admitted having been at the Library Lounge on the night of 2 March but he said he had got there at about 12:00 midnight and left at 3 a.m. to go home. He got home he said at about 3:15 a.m., in Hennessy Road, Wanchai.

8) When Miss Lam was interviewed by the Police later that day, 2 March, she lied to them. She told them that no shooting had taken place at the Library Lounge that night.

9) Over a year later, on 17 June 1993, Miss Lam attended an identification parade at the ICAC headquarters. She identified the applicant Har Luk as the man who had fired the shot at the Library Lounge on the morning of 2 March 1992.

Identification

4. At the trial the three principal witnesses were Miss Chow, Miss Lam and the barman Mr Giang. Only Miss Lam identified the applicant as the gunman. Miss Chow and Mr Giang made no identification. The applicant did not testify at his trial. That was his right but it meant that there was no evidence from him to contradict Miss Lam's testimony that he had shot Miss Chow.

Quality of Miss Lam's evidence

5. As regards Miss Lam's eye-witness account, counsel for the applicant makes the following points:

1) Miss Lam was an accomplice after the fact: she had taken the gun from Miss Au and thrown it away.

2) She had lied to the Police. She told the Police that no shooting had occurred at the Library Lounge on the morning in question.

3) She later made a statement implicating the applicant, under pressure allegedly from the ICAC, knowing that the ICAC suspected the applicant Har Luk as the gunman. Miss Lam, counsel submits, gave the statement to the ICAC under both inducement and duress.

4) Her identification of the applicant at the identification parade was, in counsel's words, "worthless" because she was instructed by the ICAC in these terms:

"You have been asked here today to see if you can pick out the person whom you saw in the Library Karaoke Lounge in the early hours of the 2nd March 1992. This person is known to you as Har Luk. At that time you saw this person holding a gun in his hand pointing it in the direction of the table where another person named Tai Hau and two girls were sitting. Shortly afterwards you heard the noise of a gun being fired".

5) Counsel submits that Miss Lam had every motive to stick to the story she had given to the ICAC, true or false, because she had a full indemnity to testify against the applicant and was given further inducements: safe accommodation provided by the ICAC, and a paging service.

6) She had been put through her statement several times by the ICAC before she gave evidence.

7) She had her own motive, it is said, to testify against the applicant because the applicant had terminated their relationship and she had been told by the applicant's wife to stay away from her husband. This happened in February 1992, the month preceding the shooting.

8) There was some variance between the account of the shooting incident given by Miss Lam and by Mr Giang.

9) She had lied about her relationship with the applicant in her examination-in-chief: She claimed she was not well acquainted with the applicant. Not only did Miss Lam have an intimate relationship with him before the shooting incident, it turned out that after the incident she had taken a meal with him, at a Taiwanese restaurant in Kowloon.

Grounds 1 and 2(a) of the grounds of appeal

6. The cumulative effect of the points as set out above, says counsel, makes the jury's verdict unsafe and unsatisfactory: Therefore, counsel submits, this court ought to be left with a lurking doubt as to whether the convictions can be safely upheld.

7. Ground 1 was argued together with ground 2(a) to the following effect: It was not enough for the judge to simply outline to the jury the circumstances under which Miss Lam came to give evidence under an immunity and to remind the jury of the terms of the immunity; the judge ought to have gone further and reminded the jury of the real possibility of Miss Lam testifying under coercion.

8. As to this last point, it is important to bear in mind what Miss Lam had actually said. There was for example this passage in her evidence at page 123:

"Q: But it was made quite plain to you, wasn't it, Miss Lam, that if you implicated Har Luk in the shooting, then you wouldn't face any charges yourself and that you would be permitted to bail?

A: They did not put it in that way. They said if I co-operated with the ICAC and tell them the truth, I would not be prosecuted.

Q: And also you would be allowed bail?

A: yes.

Q: If you didn't co-operate, was it spelt out to you what would happen then?

A: They would prosecute me."

Then a little later a similar passage at page 124:

"Q: It was made clear to you, was it not, that the quickest way for you to get out was to implicate Har Luk?

A: To tell the truth of the matter.

Q: To tell what the ICAC had said to you earlier that morning what they believed to have happened? That's right, isn't it, that's what they wanted you to say?

A: They wanted me to tell what had happened on that evening."

9. We have examined the judge's summing up with care and are satisfied that the judge dealt with the circumstances under which Miss Lam came to give evidence fully and adequately. It is inevitable that from time to time a successful prosecution must depend on the testimony of "tainted" witnesses. There was nothing exceptional in the present case. The judge reminded the jury of every respect of Miss Lam's evidence relevant to her credibility as a witness. We find no merits in grounds 1 and 2(a) of the grounds of appeal.

Ground 3

10. Ground 3 is in these terms:

"The learned judge failed to give any or alternatively, any adequate direction on the defence of accident in the summing up. Further although the issue was specifically raised by defence counsel after the jury sought further directions, he failed even at that stage adequately to explain the defence to the jury. The defence was sustainable on these facts:

a) The evidence was that the victim was injured by the second shot that was fired.

b) All the eye-witnesses described the second shot being fired at the time when the defendant was grabbed by a group of people and his hands were pressed and pushed towards the ceiling.

c) The second shot was according to all the witnesses fired into the ceiling.

d) There was damage to the ceiling to support the account.

e) No one saw the first shot being fired at all, save that a mirror in the premises was heard to break.

f) The scientific evidence could not exclude the possibility of ricochet."

11. When counsel refers to the "defence of accident", it must be borne in mind that the applicant did not go into the witness-box to say: "Yes I was the gunman, but the shot which hit Miss Chow was accidentally discharged."

12. The question at the end of the day for the jury was whether on the whole of the Crown case they were satisfied beyond a reasonable doubt: 1) It was the applicant who fired the shot and 2) that in doing so he foresaw at least that it might cause injury to someone but that he nevertheless fired the gun injuring Miss Chow. We have been taken through the relevant passages in the summing-up by counsel, and note the very substantial portions devoted to this issue. Counsel complains of this isolated passage at page 34:

"Members of the jury, you have to consider whether it was the defendant who fired the gun when it was pointed towards the ceiling. You have to decide whether during the struggle, someone pressed the defendant's finger in the trigger resulting in the discharge of the gun or whether someone else pressed the trigger of the gun resulting in the discharge of the bullet. If such were the case, you may have to consider whether the defendant have the intention or was being reckless of harming someone."

13. Counsel argues that where the judge said "if such were the case" he should have told the jury at that point that the possibility of accident could not be eliminated, in which event the applicant was entitled to an acquittal. Mr McCoy, with his customary grace and skill, has tried to persuade us that the judge failed in effect to put the defence of accident adequately to the jury; alternatively that accident and recklessness as concepts got completely mixed up, whilst they were in truth distinct issues, and required separate consideration. We cannot agree. Obviously, if someone in the course of the struggle had pressed the applicant's finger in the trigger, it would not have been he who fired the shot. The jury were left in no doubt on this point because, when they returned and sought clarification of the words in the charge "unlawfully and maliciously", the judge gave the following direction at page 52-R:

"you have to decide whether even if the defendant did not intend the injury to Miss Chow he foresaw that the firing of the gun might cause injury to someone but nevertheless fired the gun".

14. And then the judge went on to say as follows:

"You have to consider all the circumstances to see whether the defendant fired the gun deliberately and not accidentally on either occasion in the course of the struggle. You have to consider whether the defendant intended the injury to Miss Chow or whether he foresaw the firing of the gun might cause injury to someone but nevertheless he fired the gun."

15. After this, the foreman of the jury came back with this question:

"Mr Foreman: If we find that he fired the gun but we are unable to conclude who he was seeking to fire the gun at, does that fall in the category of Count 3? If we found that it was him who was firing the gun and indeed he fired the gun which caused a wound, but that he was not necessarily intending to hit that person, do we then find the Count 3 would apply here?"

16. Here it is clear beyond doubt that the jury appreciated that they had first to find that it was the applicant who fired the gun, eliminating in effect any question of accident. The question then remained one of intent, as to which the summing up was faultless. In our judgment there is no merit in ground 3 as well.

Conclusion

17. Looking at the case broadly, what is the picture:

1) The shot that injured Miss Chow was fired from the gun which, according to Miss Lam, was held by the applicant.

2) The gun was pointed in the direction of the table where Miss Chow was sitting.

3) The bullet had probably not ricocheted and came directly from the barrel of the gun.

4) The applicant on his own story had by coincidence been to the Library Lounge earlier that morning.

5) The applicant by a further coincidence had left for China that morning and stayed there for four months: far longer than his normal stay as disclosed from the travel records.

6) The applicant by a still further coincidence heard about the shooting in China two days later.

The circumstances cumulatively cried out for an explanation from the applicant, which he chose not to give.

18. We are satisfied upon all the evidence that the convictions are safe and satisfactory. There was no error in the summing up. The application for leave to appeal must be dismissed.

Representation:

Mr W Walsh (Crown Prosecutor) for Crown/Respondent

Mr G J X McCoy & Mr G Shaw (M/s Tang, Wan & Choi) for Defendant/Applicant