HKSAR v. Fung Yiu Hau

CACC000039/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 39
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 23 October 1998

Date of delivery of judgment: 23 October 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant seeks leave to appeal out of time against his conviction for wounding with intent and against the sentence of 2 1/2 years' imprisonment imposed upon him.

2. No satisfactory excuse or explanation has been forthcoming for the failure of the Applicant to lodge his application timeously. In his affirmation he simply states that "I don't have much idea about the law so I didn't apply for legal aid while in custody." This is not an acceptable reason to enable us to grant him leave to appeal out of time.

3. It should perhaps be added that even if leave were to be granted there is no prospect of the applications being successful.

4. The facts were very simple. The victim, a Mr. Chan was attending a Karaoke Bar on the night of 11th December 1995. When he went to the toilet the floor was wet and he slipped and came into contact with another man. There was then an exchange of abusive language. The man left the toilet. A few minutes later the man returned with two other men. The man he had come into contact with had a knife, one of the other men had an ashtray and the remaining man had a soup spoon. Mr. Chan was brutally assaulted by these men and sustained injuries necessitating hospital treatment.

5. The men fled. A report was made to the police and Mr. Chan was admitted to hospital. He was however discharged the next day.

6. The following day while Mr. Chan was having a snack at a food stall near the Karaoke Bar he saw one of the men who had assaulted him. He followed him. The man entered the Karaoke Bar. Mr. Chan immediately made a report to the police and police officers attended at the Karaoke Bar.

7. Mr. Chan was able to identify all three of his assailants who were at the Karaoke Bar. It transpired that the Applicant was the man who he had originally come into contact with at the toilet.

8. The trial Judge Whaley, carefully considered all of the evidence including the Applicant's. After giving evidence the Applicant absconded. The Judge was satisfied at the appropriate level of the Applicant's guilt and convicted him as charged.

9. Before us, the Applicant stated that the reason that he had absconded at the conclusion of the trial was because his barrister didn't fully reflect the instructions he had given him. He said he didn't summon a witness, the manager of the bar to testify for him. For this reason he felt dissatisfied and wanted to be allocated another counsel. Judge didn't allow this. This was not a satisfactory or acceptable explanation for absconding during the course of the trial. The Applicant also claimed that the Judge was biased against him. He claimed that the Judge had criticised him for not calling "Ah Chai" that is the manager. The Applicant said that he decided to remain silent and that the Judge had not taken into account his rather limited education.

10. He went on to complain that the Judge had said in open court that he had considered the possibility that the three defendants were in fact bouncers at the Karaoke Bar. He claimed that this was not true. There is no record of this in the Reasons for Verdict which had been given by the Judge.

11. However if this was only a question which was asked during the currency of the proceedings it was in no way improper and certainly would not be an indication of bias on the part of the Judge.

12. The next matter complained of was the Judge accepted the victim's evidence notwithstanding the fact that he had a criminal record. It is very clear from the Reasons for Verdict that the Judge was well aware of this fact and it was taken into account by the Judge when considering his evidence. There is no merit in this ground.

13. The final matter complained of by the Applicant is that he claimed at the time of the arrest another men Mr. Lai was wrongly identified by the victim. Again this was a matter which was considered during the trial. The police officer who arrested the defendants gave evidence that this was not true. No one other than the Applicant and his co defendants were arrested. There is no merit in any these grounds.

14. So far as sentence is concerned the Applicant complained that the sentence of 2 1/2 years' imprisonment was excessive. He said that he had onerous family responsibilities and he had five children. This of itself would not justify the Judge in reducing a proper sentence which was appropriate in the circumstances. In any event it cannot be said that the sentence which was imposed was in any way wrong in principle or manifestly excessive.

15. These applications are accordingly dismissed. As they are devoid of merit two months of the time which the Applicant has spent in custody will not count towards his sentence.

Representation:

Mr. Francis Lo, S.A.D.P.P. (Ag.) (D.P.P.) for Respondent

Fung Yiu-hau, Applicant in person