The Queen v. Ng Kwok Wah

CACC000332/1983

BETWEEN

Coram: Sir Alan Huggins, V.-P., Barker & Fuad, JJ.A.

Date og Judgment: 16th September 1983

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against conviction. With reluctance we granted an extension of time in which to make the application. The Appellant had indicated to his professional advisers within the time prescribed that he wished to appeal but for reasons which are not explained and which no doubt are unsatisfactory, the Notice of Appeal was not lodged within the time allowed.

2. It is a case which has caused us considerable anxiety and it must be said that the recording of the evidence and the Reasons for Verdict leave something to be desired. The Appellant was charged on two charges of wounding with intent and the evidence was that two men, who were unconnected according to the evidence, were attacked by a group of some six men with knives. There is no doubt that such an attack did take place and that the two men were wounded. The real issue was whether the Appellant was one of the attackers.

3. The evidence against him was substantially that of a police officer on patrol from the Traffic Branch. He said he saw this group attacking. He did not give any details of the nature of the attack and was not asked whether he could say what any individual person was doing. This may not be entirely surprising, because in a melee it is often almost impossible to tell what individuals are doing and we have come to the conclusion that it was enough that the officer should have described an attack: anybody taking part in that attack was no doubt particeps crimin with common intent.

4. The real difficulty which has faced us is that, after the attack, the attackers dispersed in all directions. The note of the officer's evidence then Says "I saw three Chinese males running in Lockhart Road" and it continues to say that those three got into a taxi, that the taxi eventually disgorged three men, one of whom was the Appellant, who in the course of his flight threw away a Gurkha kukri. There is apparently, on the evidence as it is recorded, a lacuna: it is not said that the "three Chinese males" were "attackers". However, in the judgment the learned judge says "In view of P.W.4's evidence" (that being the officer) "I do accept that three of the attackers escaped in the taxi, which P.W.4 chased". Now Mr. Payne very fairly says that is not what is recorded as the evidence. If it was the evidence and the learned judge discovered that he had inadequately recorded the evidence, it was perfectly open to him to confess his error and to say " Although I did not record it at the time, he said the three Chinese were attackers". He has not done that, but it is to be inferred that that is what happened.

5. Again, unfortunately the judgment is not entirely satisfactory in another passage. In referring to the officer's evidence the learned judge said:

"It is true that there are some drawbacks to his evidence - e.g. he seems not to have noticed the accused's injury to his hand and he cannot explain it. In addition he jumped to conclusions during his evidence more than once, and thus he claimed that the accused attacked someone in Wanchai with his knife. However he is a Traffic Officer, and he is no doubt more accustomed to dealing with traffic offences than serious crime. So I do not regard this as serious. In any case he admitted that he never actually saw the accused attacking anyone."

6. There are in that passage several difficulties. The judge does not say in what way he thought the witness had jumped to conclusions. The witness had not admitted that he never actually saw the accused attacking anyone: what he admitted was that in his first statement he had never said that he saw the accused actually attacking anyone: his evidence was that he did see the Appellant attacking with a knife. He did not, as I have already said, give any more detail.

7. We appreciate, as we have on many occasions said, the difficulties which Judges have in ensuring that the evidence is adequately recorded. In the present case we have no doubt that the man who was arrested was in fact one of those who was attacking and that the judge was so satisfied. We think that it would be unreasonable to look at the evidence and the judgment too nicely and not to accept that that is the effect, over all, of what the judge was saying. That being so, there is no lacuna and the application must be dismissed.

16th September 1983