The Queen v. Yim Kim Kei

CACC000310/1989

Coram: fuad, V.-P;, Penlington, J.A. & O'Connor, J.

Date of Hearing: 8 November 1989

Date of Judgment: 8 November 1989

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J U D G M E N T

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

1. The applicant, Yim Kim Kei, who is a youth now aged about 17, was convicted on 16th May this year by Judge Sharwood in.the District court after a trial of the offence of wounding with intent contrary to section 17 of the Offences against the Person Ordinance, Cap. 212 and ordered to be detained, in a Training Centre. He now seeks leave to appeal against his conviction.

2. The case for the prosecution was that. the victim went to a bowling centre during the afternoon of 6th November last year at Telford Gardens, Kowloon to wait for a friend. His friend did not arrive. When he was about to leave six men confronted him; some, including the applicant, were armed with knives. He was then chopped by the applicant and by some of the men.

3. The victim swore that he saw the applicant clearly in the group of men who attacked him. He was fairly severely injured. He was cut on the head, twice on the right arm, on his left wrist and several times on his left leg. fortunately, although there a linear fracture of his skull, his injuries were not as serious as might first have appeared because he was discharged from hospital after a stay of only five days.

4. The only evidence led by the prosecution was that of the victim himself. The applicant elected not to give evidence but called one witness who, in effect, was an alibi witness. The judge clearly believed the victim, disbelieved the defence witness and so convicted the applicant.

5. There was evidence that the victim had not given the name of the applicant to the police when he first made a report to them. He explained that he was scared at the time and confused, and was bleeding particularly from his head. He told the police on the next day that the applicant was one of the men involved and later identified him at an identification parade:

6. On behalf of the applicant, it is said that the judge placed too much weight on the fact, as he put it, that the'victim was "unshaken by cross-examination" and that the judge did not adequately warn himself of the danger of accepting the victim's evidence without corroboration in view of the fact that he had delayed in giving the name of the applicant to the police.

7. It seems to us that there is no justification for criticising the judge's-reasons for verdict. It is quite plain that he was fully alive to the dangers of the possibility of honest but mistaken identification: He noted the fact that the victim had not named the applicant immediately but stated that he was impressed by him. The judge clearly believed the victim when he testified that he had seen the applicant on many occasions and knew him well in view of previous trouble between them. The incident took place during the afternoon in a place where the light was, as the judge put it, "artifical but very bright". This is what the judge said at the conclusion of his reasons:

" I warned myself of the possibility of an honest witness being mistaken, and of the dangers of relying upon identification evidence. I took note of the lighting and other circumstances. I considered the time involved. I considered the 'panic' factor. I considered the possibility of a 'grudge', and a deliberately dishonest identification. I considered the possibility that the victim might have imagined that he saw the defendant, since he had had a dispute with him in the past.

I reminded myself that the defendant was not obliged to establish an alibi, or to prove anything. I reminded myself that it was for the Crown to disprove the alibi.

Having taken all these matters into careful consideration, I am satisfied beyond reasonable doubt that the defendant was one of the men who attacked the victim, that he used a knife, that he unlawfully and maliciously wounded the victim, and that he intended to do him grievous bodily harm. I therefore convict him."

8. As this passage shows there was no non-direction or misdirection. The conviction cannot be assailed. The application for leave to appeal is refused.

Representation:

Mr. J. hiller (C.K. Mok & Co.) for the Applicant.

Mr. M. Bulleid (Crown Prosecutor) for the Crown.