R. v. Leung Yam Kam

HCMA000625/1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 625 OF 1994

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Coram: The Hon. Mr. Justice Kaplan in Court

Date of hearing: 11 August 1994

Date of delivery of judgment: 16 August 1994

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J U D G M E N T

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1. This is an appeal against conviction and sentence from a decision of Mr. D.J. Dufton, a magistrate sitting at Shatin who on 31st May 1994 found the Appellant guilty of two offences of wounding contrary to section 19 OAPO Cap. 212 and who sentenced the Appellant to 15 months and 2 years imprisonment to run concurrently. I have seen the knife used which is a horrendous weapon with a very long blade. I have also seen the photographs of the injuries which are very serious indeed. The defence was self defence.

2. Mr. Grounds, counsel for the Appellant, submitted that this was a case where there was a lurking doubt as to the validity of the conviction. He went on to list a variety of factors which the Court should take into account in assessing whether the Appellant's convictions were unsafe and unsatisfactory, inter alia :

(a) the fact that the 2 out of 3 of the main prosecution witnesses were men of extremely bad character who could be described as "thugs";

(b) the fact that the evidence indicated that it was the Appellant's wife who had called the police - and not PW1 or PW3 who had left the Appellant's flat having allegedly been attacked there by the Appellant with PW2 still inside "at the mercy of" the Appellant;

(c) the fact that since the Appellant appeared to owe PW1 some money, it would be highly unlikely that the Appellant would invite PW's 1-3 into his flat; indeed it was highly likely that the Appellant's wife's evidence was correct, namely that PW's 1-3 rushed at the Appellant, forced the Appellant into his flat and that the Appellant shouted for help; in fact one prosecution witness confirmed that they did run towards the Appellant.

3. Mr. Grounds further submitted that when dealing with the criminal records of PW2 and PW3, the magistrate erred in failing to note that both witnesses had previous convictions for violence and furthermore that the nature and extent of their criminal records made it far more likely that those men would have done that which the Appellant alleged.

4. The magistrate was also criticised for not giving very substantial reasons for disbelieving the Appellant's wife. The reason that the magistrate gave was that she referred to the incident as a robbery when clearly it was not. It seems to me that the use of the word robbery by a layperson should not have been taken by the magistrate as being of any great significance. I was also told by Mr. Grounds that defence counsel was very junior and that in his submission this was apparent from the questions asked. This was, as the Magistrate recognised, about as serious a case as could be dealt with in the Magistrates Court.

5. In view of the course which I propose to adopt I do not propose to go through all of Mr. Ground's points which are set out in his perfected grounds of appeal. I have certainly taken on board Mr. Wyeth's approach, namely that this was an issue of credibility decided against the Appellant. However, I have had regard to the dicta of Widgery L.J. in R. v. Cooper (1968) 53 Cr. App. R. 82, 86, where he declared :

". . . in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice had been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

6. Having given this matter very careful consideration and after re- reading the record, I must confess to having a lurking doubt as to whether this conviction is safe. It is obviously with hesitation that an appellate court comes to this conclusion but I feel that this is one of those rare cases where a court should give effect to its "general feel of the case."

7. In the circumstances, I propose to allow the appeal and order a re- trial before a different Magistrate. In those circumstances, I set aside the conviction and sentence and will now hear argument as to whether the Appellant should be released on bail. Whether he is or not it seems to me highly desirable that this matter should be re-heard as soon as possible.

Representation:

Mr. C.Grounds instructed by Pang Tang ,Wan and Choi for the Appellant

Mr Allan J Wyeth, S C C for the Crown