HKSAR v. Leung Chi Wah and Others

CACC000318/1996

IN THE COURT OF APPEAL

1996, No. 318
(Criminal)

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Coram: Hon. Mayo, J.A., Keith, J. and Yeung, J. in Court

Date of hearing: 24 October 1997

Date of delivery of judgment: 24 October 1997

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J U D G M E N T

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

1. These Applicants were all convicted after a trial before Judge Wong of 3 counts of wounding with intent contrary to Section 17 of the Offences against the Person Ordinance. They were all sentenced to 5 years' imprisonment. All of them seek leave to appeal against their convictions and according to the papers the 1st Applicant and the 5th Applicant also seek leave to appeal against the sentences imposed upon them.

2. As was pointed out by the Judge it was a bad wounding case.

3. PW1 was the brother of two of the victims. He gave evidence that he was out in the street, at Hung Shing Street, Apleichau at 6:00 p.m. in the evening of 18 August 1995 when he saw a light van drawing up outside the Chui Tak Garage. A number of men alighted from the van wielding beef knives and ran into the garage and were joined by other men. PW1 ran into the garage and saw the men attacking his two brothers and another man with knives.

4. One of the men shouted 'get away' and all of the men ran out. Some of them boarded the van and as it drove away someone broke one of the rear windows of the van with a knife. PW1 was able to recognise the 1st Applicant as he had seen him on a number of previous occasions. He was the driver of the van. PW1 was able to note the registration number of the van which appeared to be GB5484.

5. PW1 went back to the injured men and was able to see that they had all sustained very serious injuries. He immediately got the injured men into a car and took them together with PW2, who was the proprietor of the garage to the Queen Mary Hospital. While on the journey to the hospital, he made a report to the police on his mobile telephone and gave them the registration number of the van. PW2 had also witnessed the assault and like PW1 was able subsequently at the identification parade to identify some of the men who had taken part in this attack.

6. Sergeant 2677 was in a police car in the vicinity of Apleichau when he received information over his radio concerning the attack and was given particulars of the registration number of the van. Shortly after this he saw the van stationary at traffic lights. He and other police officers attempted to intercept the car but without success. In doing so they disclosed their police identities. Notwithstanding this the van eluded the police and proceeded towards Aberdeen. When it reached Apleichau Bridge the police officers saw the van stop and one of the men, who it subsequently transpired was the 2nd Applicant, got out of the van and threw a number of objects over the bridge and then attempted to run away. One of the officers succeeded in catching D2, the 2nd Applicant. At a subsequent search operation a number of beef knives and sheaths were retrieved. It was an admitted fact that one of the sheaths recovered had the 4th Applicant's fingerprints on it.

7. One of the knives which was retrieved was found to match the metal fragments removed from the bones of one of the victims.

8. The police officers continued with their pursuit of the van and eventually succeeded in intercepting it. All of the Applicants with the exception of the 2nd Applicant were in the van.

9. Unidentified blood stains were found on the clothing or shoes of all of the men.

10. It is pertinent also to observe that the number plates of the van had been interfered with and in reality the registration number of the van was GB5404. A further feature of the case was that the prosecution were unable to trace the three victims and accordingly they were unavailable at the trial.

11. None of the Applicants gave evidence at their trial.

12. The sole perfected ground of appeal lodged by the 1st Applicant was that when the Judge described how he had directed himself in the terms of a Turnbull direction he had said that he had not included the 1st defendant in his considerations as the 1st defendant had been well known to PW1. It is his case that the Turnbull direction should also apply where the person being identified is known to the person making the identification.

13. However having regard to the overwhelming circumstantial evidence connecting the 1st Applicant to these offences there could be no doubt whatever that the 1st Applicant was one of the assailants taking part in these woundings.

14. Mr Tse for all of the other Applicants submitted that according to the available evidence there was a period of something approaching half an hour between the time of the attack taking place which was approximately at 6:00 p.m. and the time when the police first saw the van near the Apleichau bridge which was at 6:29 p.m. He points out that no satisfactory explanation has been given for this and it may have been possible for people to have entered or left the van during this time. What needs to be borne in mind is the conduct of the men who were in the van. There was the attempt to escape from the police. This had to be taken together with the attempt of one of the men, the 2nd Applicant, to dispose of the knives. There was also the fact that blood was found on the Applicants' clothing or shoes. There was ample evidence for the Judge to draw the inferences he did. In addition to this there was the fingerprint evidence on the sheaths which linked the 4th Applicant to the offences.

15. Mr. Tse also referred to the inconsistencies in the evidence of the police officers concerning the number of persons in the van. This was not a serious inconsistency in the circumstances of the case. Complaint is also made of the fact that the Judge declined to order a stay consequential upon the prosecution being unable to secure the attendance of the victims at the trial. It was possible to conduct a fair trial in their absences and this exercise of the Judge's discretion can not be faulted.

16. There is nothing of any substance in any of the other grounds of appeal.

17. These convictions were neither unsafe nor unsatisfactory and these applications are dismissed.

18. The 1st Applicant did not proceed with his application for leave to appeal against sentence.

19. The 5th Applicant applies for leave to appeal against the total sentences of 5 years which were imposed upon him. Before us, he referred to a difficult family situation and problems connected with his mother's health. These are not matters which can weigh heavily in the balance in an exercise of this nature.

20. As was pointed out by the Judge this was a very serious attack. Potentially lethal beef knives were used. It is apparent from the agreed medical facts that the victims suffered grievous injuries. Indeed it could be said it was fortunate that the consequences were not worse than they were.

21. There were no compelling mitigating circumstances and the sentences were appropriate for an attack of this nature. This application is also dismissed.

Representation:

Mr. D.G. Saw, S.C. & Mr. Simon Tam, G.C., (DPP) for Respondent

Mr. Duncan Percy, (Josip Ma & Co) for 1st Applicant

Mr. Paul Tse, assigned by D.L.A. for 2nd - 5th Applicants (re: conviction)

Law Ka Fai, 5th Applicant in person (re: sentence)