HKSAR v. Li Kam Chiu and Another

CACC 333/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 333 OF 2000

(ON APPEAL FROM DCCC 399 OF 2000)

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Coram: Hon Stuart-Moore VP, Mayo VP and Stock JA in Court

Date of Hearing: 1 June 2001

Date of Judgment: 1 June 2001

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1.It is convenient to refer to these applicants as they were described in the trial below.

2.D1 and D3 were convicted of 2 charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. D3 pleaded guilty to a 3rd charge of resisting a police officer in the execution of his duty. D1 was sentenced to a total of 31/2 years imprisonment and D3 to 31/2 years and 7 days imprisonment.

3.The trial was in the District Court before H H Judge Chua. The applicants seek leave to appeal against their convictions.

4.The facts were quite straightforward.

5.In the early hours of the morning of 29 October 1999 the two victims of the attacks were having a meal at a food stall at Tuen Mun. PW3 who is the brother of PW1 and some others were also present.

6.According to the evidence of PW1 he left the food stall first. Shortly after this he was set upon by ten men carrying water pipes and beef knives. Shortly after this PW2 who had been following was also attacked by the men. He gave evidence that he was sure that D3 was one of the men in the group. He also gave evidence that when he was attacked the person at the front of the group shouted out "I follow Fat Tak Chiu" before attacking him three times with a knife. It appears to have been accepted that Fat Tak Chiu is a nickname used by D1.

7.It is apparent from the agreed facts both men sustained serious injuries which necessitated hospital treatment.

8.PW3 who was following a little later claimed to have been able to identify D3. The Judge did not attach weight to this identification as two other men PW4 and PW5 gave evidence that by the time PW3 arrived at the scene the men had fled.

9.PW3 took PW1 and PW2 to hospital in a taxi where emergency operations were performed upon them.

10.On 17 December 1999 two identification parades were held. At the first PW1 and PW2 both identified D1 as one of their assailants. At the trial the Judge relied upon PW1's identification but not PW2's. At the second identification parade another man who was D2 in the trial below was identified by PW1. At the trial PW1 was unable to make good this identification. He did however confirm his identification of D1. D2 was acquitted at the conclusion of the prosecution case.

11.A further identification parade was held on 17 February 2000. At this parade D3 was identified by PW2 and PW3.

12.Neither applicant gave evidence at their trial. However both called alibi witnesses.

13.D1's alibi witness said that D1 had joined him at a bar in Mongkok after midnight and that they drank together. He claimed to have been able to remember the date as earlier in the evening he had attended the birthday party of a friend called Billy.

14.The Judge was satisfied that this witness had been telling lies and that the lies had been told for the benefit of D1 and not for any innocent reason. She considered that these lies lent support to the reliability of the identification evidence.

15.D3's alibi witness was his 16 year-old girlfriend. She said that she was able to remember the date because it had been D3's birthday on 21 October 1999. They had agreed to celebrate it on 28 October 1999. On that evening they had had dinner at D3's home with his mother and they had watched television together. After this they had gone to his bedroom where she had remained until 3 a.m. while he was asleep. She also gave evidence that on the evening prior to the assaults she had been waiting to meet D3. PW1 had then approached her and asked her what her name was and who she was waiting for. When she told him that she was waiting for D3 he had said that he would beat D3 up. D3 then arrived and there was a verbal exchange between the two men. She claimed that the final question which was asked by PW1 was who D3 was following and arrangements were then made for a meeting at the food stall the following evening.

16.In a similar manner the Judge was satisfied that the girlfriend had been telling lies and these lies had been for the benefit of D3 in relation to the alibi and that there was no innocent explanation for the lies. This tended to support PW2's identification of D3.

17.In her reasons for verdict the Judge specifically reminded herself of the dangers of accepting identification evidence and of the principles laid down in R v Turnbull [1977] QB 224. However having considered all these matters she had been satisfied at the appropriate level that these applicants had been guilty as charged.

18.The applicants are separately represented on this application. The main grounds of appeal raised by both counsel are the complaint that the Judge found support for the identification evidence from the fact that each applicant called alibi witnesses who the Judge held had been lying and fabricating the alibi evidence and assuming that the respective applicants had connived in this.

19.Mr Oderberg for D1 submitted that there was no authority which extended the doctrine of lies as propounded in HKSAR v Mo Shiu-shing [1999] 2 HKLRD 155 to apply to a person other than the defendant so that it can be used to support an identification by a witness.

20.Mr Khosa for D3 submitted that the Judge had been in error in applying the principles laid down in Mo Shiu-shing as there was no positive or independent evidence that the alibi witness had deliberately lied. This error had been compounded by the Judge's observation that D3 had an obvious motive to fabricate the evidence and that he had not given evidence at his trial all of which supported the correctness and reliability of PW2's identification.

21.Rejection of alibi evidence can lend support to identification evidence. Support for this proposition can be found from the judgment of Widgery LCJ on p. 230 of Turnbull:

"Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was."

22.While Widgery LCJ was commenting upon directions which should be given to a jury it must be the case that where a judge is sitting as a judge and jury these considerations would have been self evident to the judge.

23.Implicit also in this passage is that the rejection of the alibi evidence referred to by Widgery LCJ does not have to be established by positive or independent evidence as counsel on behalf of the applicant suggested. It is sufficient that the jury rejects the testimony.

24.This is also consistent with the principles enunciated in Mo Shiu-shing. It is manifest from the Judge's reasons for verdict that she did for obvious reasons reject entirely the evidence of both alibi witnesses. It is also clear if the reasons for verdict are considered in context that the Judge was satisfied that the applicants must have been parties to the fabrications as it was inconceivable that these witnesses would have come forward and given this evidence unless requested to do so by the applicants. This might also have been a relevant consideration as to why the applicants had not gone into the witness box.

25.It is certainly not clear from the Judge's observations on p. 13B of the appeal bundle that she was saying that the applicants' election not to give evidence was of itself in any way evidence of these applicants' guilt.

26.Ground 3 of D1's grounds makes reference to the observations made by the Judge as to why PW1 might have been reluctant to identify D1. It has to be said that there was no evidential basis for this and the Judge should not have indulged in this speculation. This is not a matter of consequence as the Judge points out how this apparent reluctance was overcome. The passage is also at p. 13 of the appeal bundle and reads:

"Concentrating on PW1's identification, I noted his initial reticence. Twice in-chief he said he could not identify anyone. It is not beyond one's imagination and comprehension in cases like this there are behind-the-scenes negotiations to which a court is not privy. This seeming reluctance was quickly forgotten once Mr Mackenzie-Ross for the prosecution, drew his attention to the identification parades and his witness statements."

There is no substance in this complaint.

27.The only other ground of appeal pursued by D3 is a general complaint that the Judge erred in accepting PW2's identification of him. The Judge gave detailed reasons why she accepted the evidence of identification of both applicants. There is no valid reason why these findings of fact should be interfered with.

28.The convictions were no way unsafe or unsatisfactory and these applications are dismissed.

Representation:

Mr Simon Tam, SGC of the Department of Justice, for the respondent

Mr Keith J Oderberg & Mr Simon Ng, instructed by Messrs Ko & Chow for the 1st applicant

Mr David Khosa, instructed by Messrs Leung Kin & Co. for the 2nd applicant