Read the full judgment text of CACC 000305/1994 on BabelCite. This Court of Appeal judgment was delivered on 26 May 1995 before Power, V.-P., Litton, V.-P. and Bokhary, J.A..
Criminal law – wounding with intent – identification evidence – triad-related background of witnesses – good character – whether trial judge erred in relying on totality of evidence despite warning himself about prosecution witnesses' backgrounds – whether failure to mention good character in reasons is fatal – planned ambush using knives – sentence of four years for 20-year-old with clear record – deterrence. The applicant was charged with two counts of wounding with intent arising from a planned ambush using knives outside a karaoke bar in Kowloon on 25 April 1993. Six eye-witnesses identified him, with two saying he carried a knife. In his cautioned statement, the applicant admitted being at the scene, being part of the group, having discussed the ambush, and having hailed taxis for the attackers to escape, but denied knowing about or using the knives. He was convicted after trial before a district judge and sentenced to four years' imprisonment on each charge, concurrent. The first issue was whether the trial judge erred in finding the totality of the evidence sufficient to prove guilt beyond reasonable doubt, given the triad background of the prosecution witnesses. Held: no error; it is a judge's duty to consider each witness's evidence in the context of the evidence overall, and a decision to accept a witness's evidence is strengthened, not weakened, by the judge having warned himself to take particular care with that witness. The judge was entitled to rely on the applicant's own admissions placing him at the scene with the ambushing group. The second issue was whether the trial judge's failure to mention the applicant's good character in his reasons was fatal. Held: no; per R. v. WONG Chi-wei (1994) 1 HKCLR 94, R. v. CHAN Wu-nam is not authority for the proposition that in every case where credibility is in issue the judge must expressly address good character, and the Court of Appeal will, absent express or implied indication otherwise, assume the judge had the character evidence in mind and gave it appropriate weight. The third issue was whether the judge failed properly to evaluate the applicant's evidence; held: no, his acceptance of PW2 and PW3 as witnesses of truth was, by implication, the clearest rejection of the applicant's denials. As to sentence, although the Court was concerned that a 20-year-old with a clear record and an extremely good probation report should receive four years, it would not interfere given the extreme seriousness of a planned knife ambush and the element of deterrence required. Application for leave to appeal against conviction and against sentence refused.
Legal issues: Sufficiency of totality of evidence given triad background of prosecution witnesses · Failure to direct himself on Applicant's good character evidence · Alleged failure properly to evaluate the Applicant's evidence · Whether the sentence of four years' imprisonment was manifestly excessive
Outcome: Application for leave to appeal against conviction refused; application for leave to appeal against sentence refused. The applicant remains convicted on both charges of wounding with intent and sentenced to four years' imprisonment on each charge, to be served concurrently.
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