HKSAR v. Yu Hon Chun

CACC000100/1997

IN THE COURT OF APPEAL OF THE HKSAR

1997, No. 100

(Criminal)

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Coram: Hon Liu & Mayo JJA & Stuart-Moore, J in Court

Date of hearing: 12 November, 1997

Date of judgment: 12 November, 1997

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J U D G M E N T

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Liu JA:

1. Applicant YU Hon-chun stood charged before Her Honour Judge Chu with wounding with intent. The prosecution case against him was that he and three others unlawfully and maliciously wounded one Wong with intent to do him grievous bodily harm on 1 July 1996 inside Tung Po TV Game Centre in the basement of 128 Castle Peak Road, Shamshuipo. At the conclusion of his trial, he was convicted and sentenced to be detained in a Training Centre.

2. The Applicant now seeks leave to appeal against conviction. On the day in question, at the TV Game Centre, the victim Wong and his girl-friend Ms Leung were customers. The Applicant was an acquaintance of Ms Leung. They had known each other for upwards of six months and according to Ms Leung, he was in fact her sworn brother. Ms Leung saw the Applicant, together with 11 or 12 other males, come into the TV Games Centre. After the victim Wong was personally identified, the group including the Applicant assaulted him. The Applicant, as observed by Ms Leung, took part in the attack. He was seen picking up a stool to hit the victim Wong.

3. The Applicant was arrested over a month later after the incident. He was positively identified by Ms Leung at an identification parade. He was also identified by the victim. The Applicant elected not to give evidence. The Applicant was a stranger to the victim and in conjunction with other circumstances, the Judge did not feel comfortable with and did not accept his identification evidence.

4. As far as Ms Leung is concerned, she was 18, then pregnant and caught in the middle of an attack approaching midnight, in a public place at the Tung Po TV Game Centre.

5. There were discrepancies between the first and subsequent statements given to the police by Ms Leung. Some parts of her statements were not entirely consistent with the evidence she gave in court. Ms Leung also made a wrong identification at an identification parade. Further, the reference she made to the toilet near the cashier was at variance with the evidence given by Mr Lam, a witness called by the Defence. Ms Leung had told the Judge that she was unable to witness the entire attack on the victim. But Ms Leung explained that she saw the Applicant come in and she also saw the Applicant as one of the last few to leave the Game Centre. Identification evidence was treated with great caution by the Judge who rejected her identification evidence against another co-defendant. The Judge had not overlooked these features. She concluded that Ms Leung, though not being alert or articulate, related to the fundamental truth of the incident. The Judge accepted that Ms Leung saw the Applicant at the TV Game Centre and that he was one of the group who attacked the victim.

6. It was not disputed that the Applicant was known to Ms Leung. The Judge held that Ms Leung had an ample opportunity to observe the Applicant, both before and in the course of the attack in which the Applicant used the stool on Wong. It was ultimately a question of credibility as the Applicant was an acquaintance of Ms Leung. The Judge accepted and relied on Ms Leung's evidence, having regard to matters worthy of concerned consideration. The deliberation process of the Judge cannot be faulted. The Judge had considered all the relevant and pertinent circumstances. Her conclusion has not been shown to be wrong. The application of the Applicant should be dismissed and we dismiss it.

Representation:

Mr Patrick Cheung, SAGP (DPP) for the respondent

Applicant in person