HKSAR v. Li Yun Cheung

CACC000307/1997

IN THE COURT OF APPEAL

1997, No.307
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. & Stuart-Moore, J.

Date of Hearing: 21 November 1997

Date of Judgment: 21 November 1997

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of wounding with intent contrary to s.17(a) of the Offences against the Person Ordinance, Cap.212. The particulars of that charge read that he, on or about the 28th day of July, 1996, at the approach road to Li Uk Tsuen, So Kwun Wat, Castle Peak Road, Tuen Mun, New Territories, together with other persons unknown, unlawfully and maliciously wounded Lee Kwok-leung, with intent to do him grievous bodily harm. He pleaded not guilty to that charge and was, after trial before Deputy Judge Toh, found guilty and sentenced to imprisonment for three years. He now appeals against that conviction.

2. I take the facts upon which the prosecution relied from the Reasons of the Judge. She set them out as follows:

"on 28 July 1996 PW1 (the victim) went with PW2 to the car parking place just outside the pink wall of Kwan Fu Gardens. PW2 boarded his van and inside the van was his wife, PW3. While PW1 was talking on his mobile phone standing by the pink wall, he heard footsteps approaching from his left. He turned and a man wearing a black cap and black upper garment attacked him with a knife and he indicated that the knife was some 3 feet long, almost as wide as the witness box. PW1 raised his hand to ward off the blow and the knife then cut his palm near his wrist. He turned and fled some 10 feet, and when he turned around again he saw that there were two more persons and he was running past the black capped man. When he saw that they did not chase him, he became worried for the safety of PW2 and PW3, so he rushed back and the three persons attacked him.

One of the two persons who came was the defendant and he said he saw the defendant's face for one to two seconds and there was a street light there. Then he managed to escape and ran to the road junction where there was a park and he hid there. While he was hiding he saw a car being driven up the road and he saw three men board the car. One of them was the defendant and he said he saw the defendant holding a knife and running up to board the vehicle. He said the other man was someone called Kit Chai but he did not know the third. He said the car was about some 20 feet away from him. After they left he ran home and he was subsequently taken to hospital."

3. It was the defence case that the applicant had nothing to do with the attack and was at home asleep at the time when it occurred. It seems to have been common ground that the families of the applicant and the victim were, to use the judge's word, "locked in family disputes" and it was suggested by the defence that the victim had deliberately lied about the applicant's involvement. It was put in cross-examination in this way:

"Right. Well, I'm suggesting that your family has such a bitter dispute with this defendant's family that you would have liked to have accused his elder brother, but knew that that was impractical, so you've accused this defendant instead."

4. In the first ground, it is submitted that the trial judge failed to address the real issue in the trial which was that there had been a deliberate lie to involve an innocent person and that the judge had wrongly directed her attention to the possibility of mistaken identification which was not a real issue. Put in another way, it is suggested that she concerned herself with identification when the live and vital issue was malice.

5. It certainly cannot be suggested that she overlooked malice as, having reviewed some of the evidence, she made the following observation:

"It is clear from all the evidence that the victim's family and the defendant's family were locked in dispute. I am not here to decide the rights or wrongs of any party, but what is clear is that because of this bad blood between the victim and the defendant's families, the victim and his brother, PW4, may have interests of their own to serve by falsely identifying the defendant. I have to be extremely careful in assessing their evidence.

PW1 disagreed in the witness box when it was put to him that he had concocted the defendant's involvement, together with his brother PW4."

The trial judge went on to canvass suggested weaknesses in the victim's evidence and to note his bad character. Having further reviewed the evidence she then said:

"That was a recap, briefly, of the evidence that I have heard in court and what is very evident in this case is that there are two feuding families, rather in the manner of the Capulets and the Montagues. The bad blood has caused many disputes and I have to decide if that extended to the false accusation of the defendant.

PW1 is not a man of clear record and has been dishonest in the past in evading tax from the government. He also has a propensity to violence. It is also a fact that he was seriously injured in the attack of 28 July and had to be in intensive care and was hospitalised until 6 August.

I have warned myself of the special need for caution in this case and have reminded myself of the principles in Turnbull, particularly what Duffy J. said in the case of R. v. Sun Bat-ming, Magistracy Appeal 391 of 1988. He said the call in R. v. Turnbull for caution when considering identification evidence should not have mere lip service. He goes on to say, 'That cautionary tone reflects the sobering experience of many past mistakes of mistaken identification.' I have to warn myself that in recognition cases, mistakes have often been made even when a person is recognising close relatives or friends and I warn myself that an honest witness may be a mistaken one. This is very important because if I do not believe the evidence of PW1 and that his identification was genuine, then the Crown would have failed in its proof because I do not feel that I can rely on the identification of PW4." (Emphasis supplied.)

6. The judge here makes it plain beyond argument that she had in mind the issue of false identification, i.e., of malice. She had in mind that if she was to convict she must believe not only, to use her words, "the evidence of PW1 but also his identification was genuine". She did then, it is true, turn to examine the identification evidence but this was clearly, we are satisfied, because she had said that she was accepting that PW1 was a truthful witness. That being so, there is nothing in the first ground.

7. One further matter was, however, raised in argument when that ground was being canvassed. The trial judge had said that she would not have been prepared to act upon the identification of the brother, PW4, had it stood alone. She did not, it is suggested by counsel, explain why she took this view. The suggestion seems to be that given the fact that they were brothers, there was for each similar motives to dissemble and that, given the similar nature of their evidence, any doubt as to the evidence of one, if explained, must leave this court with uncertainty as to whether the trial judge properly applied her mind to the evidence of the other. We find it difficult to see any real force in this submission. The trial judge was clearly dealing with two witnesses who gave different versions of the events. Each had to be considered separately. The judge had to consider both the demeanour of each and, more particularly, how reliable each was as an observer of the scene. Further the trial judge did not reject PW4's evidence but indicated that she would not have been prepared to act upon it had it stood alone. It is this observation which gives rise to the contention that the trial judge's refusal to accept the evidence of that witness was unexplained. An examination of the judge's reasons satisfies us that this is not so. She did explain why she took the view that she did of his evidence. She said:

"PW4 said he was in the house when he heard a painful cry from PW1. He rushed out of the house and saw two persons boarding a car. One of them was the defendant. He gave a registration number to the police and subsequently that registration number was identified to a green car which was nowhere near the scene. He also identified the defendant. He agreed that it was not until several hours later that he told the police that the defendant was involved in this and it was because he had been focused on saving his brother. He said he was 10 feet from the car and that the car was facing away from him, and the people boarding the car were also facing away from him.

If his evidence was the sole evidence in the identification of the defendant, it would be unsafe to rely on it."

There were, in our view, clear and sufficient reasons given by the trial judge to explain her decision that, if the evidence had stood alone, it would not have been safe to rely upon it.

8. In ground 2 it is argued that as credibility was crucial the trial judge was called upon to direct herself in terms as to the applicant's good character and to specify why she did not believe him. It is submitted that it was not enough to make passing reference, as it is conceded she did, to the fact that he had a clear record. We have in mind the authorities that were cited to us by Mr. Plowman, but we are satisfied that this matter falls within the class of cases that was referred to in R. v. Wong Chi-wei and Another, [1994] 1 HKCLR 94, when Penlington, J.A. said:

"Chan Wu-nam's case is not authority for the proposition that in all cases where credibility is an issue the judge must set out the manner in which he has considered the accused's good character in deciding that issue."

9. Where a judge is sitting alone, and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some expressed or implied indication otherwise act upon the basis that he was aware of the character evidence and that he gave it the weight which he though it deserve. In the present case there was no such indication. We have no doubt that the judge had in mind the character and background of the applicant when coming to his conclusion.

10. We turn then to the final matter which is that the judge failed to give any reason for disbelieving the alibi evidence of the applicant. Clearly if the evidence of the victim was accepted, the applicant's evidence had to be rejected. The trial judge could, we are satisfied, do no more than say as she did, that she did not accept his evidence. It is clear that she did not do so because she was satisfied that the victim was telling the truth. There is, finally, we consider, nothing in this ground and the application for leave to appeal against conviction must, therefore, be dismissed.

Representation:

Mr. G. Di Fazio (D.P.P.) for the Respondent.

Mr. Gary Plowman, S.C. & Mr. Joseph Tse instructed by Messrs. Weir & Associates for the Applicant.