The Queen v. Chan Wing Keung and Another

CACC000010/1991

BETWEEN

Coram: Hon. Fuad, V.-P., Clough & Macdougall, JJ.A.

Date of hearing: 16 July 1991

Date of judgment: 16 July 1991

Date of handing down reasons for judgment: 26 July 1991

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REASONS FOR JUDGMENT

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Clough, J.A.:

1. These are the reserved reasons of the court for its order made on the 16th July 1991 refusing leave to Chan Wing Keung (D1) to appeal against his conviction by Deputy Judge Davies in the District Court on the 6th December 1990 on two charges of wounding with intent contrary to section 17 of the offences against the Person Ordinance (Cap. 212). D1 was also convicted on a charge of assault occasioning actual bodily harm Contrary to common law and punishable under section 39 of the same Ordinance, but his appeal   against this conviction was not pursued by counsel on his behalf. Before the hearing of D1's application for leave to appeal against conviction, applications by counsel for D1 and Wong Kam Hung (D3) for leave to appeal against sentence (About 6 months out of time and the same period after each of them had appealed in time against conviction) were refused for want of any acceptable explanation for the substantial delay.

2. D1's convictions of wounding with intent arose from a dispute between the personnel of two seafood stalls situated opposite each other and only three feet apart in Temple Street, Kowloon. D1 was the proprietor of one stall. His brother Chan Moon-tong (PW2) was the proprietor of the other. There was a long history history of enmity between D1 and PW2. The latter had been convicted several times for assaulting D1. Dl's staff included D3 and at least two others. PW2's staff comprised his fiancee Chu Mei-yuk (PW7), her brother Chu Chi-ying (PW4) and Tang Pun-san (PW9).

3. On the evening of the 21st June 1990 D3 accused PW9 of poaching D1's customers and an ]argument developed. PW2 became involved upon returning to his stall. This was followed by Dl's staff arming themselves with what the Crown's witnesses called water pipes or iron bars (but the judge concluded may in fact have been metal tubular legs of stools) and attacking PW2 and his staff. The judge found (a finding which is not impugned on appeal) that during the ensuing melee D1 joined in the attack armed with a chopper and used it to wound PW2 and PW4.

4. PW2 described the circumstances under which he received his chop wound from D1 in the following passage in his evidence in chief:

"     I together with my fiancee's brother obstructed D3, and TANG Pun-san successfully got away in the kitchen area. Then D3 hit me again. He hit me once with the water pipe on my left arm, I saw that my fiancee put her arms around D3 to prevent him from hitting me. when I turned my head to have a look at the kitchen area to make sure that TANG had gone, I then saw, when I turned my head  again, my elder brother chop me with a knife on my left shoulder(witness indicates top of left shoulder). My elder brother is D1. The knife has a wooden handle. It is intended for use in chopping or cutting crabs."

PW4 described Dl's attack on him in his evidence in chief as follows:

"    I was being beaten by D3. There were others but I could not tell who they were because the situation then was chaotic. He struck me with the water pipe and when I fell to the ground, he kicked me. He struck me with water pipe on my back and my head. He kicked me on my body and Legs. Then Dl came near to me and took out a knife intended for cutting crabs. Then he chopped my left forearm near the elbow. At this stage, I was lying on the ground being beaten up by people. The knife is similar to a domestic chopper."

PW4's sister, PW7 gave a similar description of this incident. She said in chief:

5. The evidence of the doctor (PW1) who had examined PW2 after the wounding was that he had "sustained a wound over left shoulder which was a stab wound about 3 cm long over the essential aspect of his left shoulder". Questioned by the court as to what he meant by "stab" PW1 replied:

"    According to medical terms the wound (sic) [word) means that the edge of the wound is smooth or sharp. The depth of the wound compared with the length is about the same or even more than the length. This is just a relative term to the cut wound where depth is shallow compared with the length. Normally we would measure the depth but as I was in the accident and emergency room, I left it to the ward so that it would not be done twice and cause the patient unnecessary pain." (Word in square brackets interpolated by this court)

Asked under cross-examination if a stab wound would not be a chop wound, Pw1 said that the latter expression was a layman's term. He said he would describe a chop wound as a cut with a sharp edge, adding that a chop had no specification as to depth.  Asked to describe the difference between a stab and a chop wound, PW1 replied:

"    Yes, a difference. I usually would describe a chop wound.I would think the wound was made by the blade of the weapon and would describe it as a stab wound if it was made by the sharp corner or point of the weapon and judging by its shape of this patient's wound I called it a stab wound rather than a chop wound"

6. The medical evidence concerning PW4's wound was given by PW3 who said:

"     I saw a cut wound over his left forearm about 2 cm long.  I saw that some of the forearm muscle had been cut.....Because muscle had been cut, after primary treatment, patient admitted to the orthopaedic unit. Nothing else of significance was found. I can't recall how deep the wound was but not very deep was my impression. The muscle was pulling the wound apart.

The edge was sharp and straight."

7. The trial judge, in his Reasons for Verdict, accepted that the descriptions of PW2 and PW4's wounds by PW1 and PW3 respectively did allow for the criticism that PW2 and PW4 had (albeit not unreasonably having regard to the nature of the assaults on them) exaggerated the extent of the violence used on them.

8. The judge expressed his finding regarding the charges against D1 in the following passage of his Reasons for Verdict:

"       I am satisfied that D1 and D3 were principals in this violent incident and that their actions were substantially as described by the witnesses for the Crown. It follows that I reject D1's evidence where it is in conflict with the Crown evidence. The use of a chopper in these circumstances clearly supports the intent to cause grievous bodily harm. Accordingly, I find him guilty of all charges." (Emphasis supplied).

9. In the one perfected ground settled by Mr. Poll, counsel for D1, it was contended that the judge erred in convicting D1, as charged under  section 17 of the offences against the Person Ordinance with two offences of wounding with intent to cause grievous bodily harm to PW2 and PW2  respectively (carrying a maximum penalty of life imprisonment). It was further asserted in the ground that D1 should have been convicted of two alternative lesser offences of wounding contrary to section 19 of the Ordinance (carrying, a maximum penalty of 3 years imprisonment), "since the evidence does not indicate the Appellant had the intent to cause grievous bodily harm and the mere fact that a chopper was used does not inevitably lead to ,such a conclusion."

10. Mr. Poll when asked by my lord the Vice President, made it clear that he was not going so far as to contend that the judge had erred to the extent that, had the trial been by the judge and a jury, he should nave withdrawn the issue of intent from the jury. The contention on behalf of Dl was that the convictions were unsafe and unsatisfactory   because the judge had not considered all the evidence fully and had not borne in mind the long history of minor violence between the brothers D1 and PW2.

11. The factors which Mr. Poll relied  on in his helpful submissions related to the following matters. The judge had commented on the fact that the victims had exaggerated their injuries.  Mr. Poll pointed to the  medical evidence showing that PW2's wound had only been 3 cm long, there being no indication of substantial depth and no actual measurement of depth by PW1.  In the case of PW4 the wound had been only 2 cm long.  It was not very deep and was not described by PW3 as a stab wound. As regards the circumstances of the wounding it was stressed that this was not a case where the offenders had "gone to look for a weapon. D1 had been standing at his chopping block with his chopper immediately before the offences were committed.  He had only struck each victim with one blow and the minor nature of the injuries sustained was not attributable to evasion of a fierce attack by the victims. This was, Mr. Poll contended consistent with the history of only minor violence between PW2 and D1. The submission was that the evidence indicated that Dl had manifested a clear intention to wound but no more.

12. We were unable to accept that these factors demonstrated that the convicition of D1 was unsafe or unsatisfactory. The issue of intent to cause grievous bodily harm (i.e. really serious bodily harm) was essentially a "jury issue" to be determined by the judge, in this case, by inference from circumstantial evidence. There was no direct evidence on this issue and Dl's defence had included a denial that he had used a chopper at all at the material time. The judge did not reason (as the ground of appeal seems to imply) that because a chopper had been used by ul he must have intende to cause grievous bodily harm.  In the passage in his Reasons for Verdict cited and emphasised above he was at pains to say that the use of a chopper "in these circumstances" (i.e. as described by the relevant Crown witnesses whose evidence he accepted) "supports" (not "determines") the intent to cause grievous bodily harm. This approach seemed to us to be  unimpeachable and in line with the comment in Halsbury's Laws of England, 4th Ed. (1990 Reissue) Vol. II (1) at para 470 that:

"      In considering what will amount to evidence of an intent to do grievous bodily harm, regard must be had to the weapon, if any, used, and the conditions under which it was used."

13. In the present case a fracas had escalated into violence involving an attack by one group of people on another. The evidence clearly demonstrates this. Much of the Reasons for Verdict is taken up with determining the roles of the various persons involved in the attack which was made on PW2, PW4, PW7 and PW9 by D1 and D3 and their companions. Iron tubes were being used as weapons. The position was clearly a confusing one but undoubtedly a violent attacx by one group upon another. In such circumstances it would be reasonable for a jury (or a judge deciding issues of fact) to infer, as the judge did, that to enter the attack and strike at victims with a chopper manifested an intention to cause grievous bodily harm. The fact that such harm was not in the event caused is not the determinative factor - the infliction of grievous bodily harm was no part of the charge.

14. In the absence of any evidence from D1 himself regarding his intention at the material time the use by him of a chopper in the manner and circumstances described by the Crown witnesses seemed to us to justify the reasonable inference that he intended to cause grievous bodily harm to his victims. Moreover, in the case of PW4, whose injury was slighter than that of PW2, the evidence of PW7 set out above (which the judge accepted) shows that D1 was seen by her to "raise his hand and quickly strike" Pw4 who was lying on the ground at the time trying to avoid the blows of D3 and another man. In our view, notwithstanding the factors relied upon by Mr. Poll, the judge's conclusion on the intent issue was reasonable, realistic and fully justified on the evidence before him.

Representation:

Michael Poll (M/S So & Co.) for both Applicants

S.R. Bailey, Crown Prosecutor for Respondent