The Queen v. Cheung Lap-sau

CACC000382/1985

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Hunter, J.

Date of Hearing: 8th November 1985

Date of Judgment: 8th November 1985

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JUDGMENT

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Kempster, J.A.:

1. On 8th August of this year at Victoria District Court CHEUNG Lap-sau was convicted after trial by His Honour Judge Ryan of unlawfully and maliciously wounding LEE Yat-king with intent to do him grievous bodily harm. He had earlier pleaded guilty to forcedly imprisoning LEE Yat-king and detaining him against his will in a storeroom at the Lady Trench Rehabilitation Centre, Kwun Tong. Against the conviction for wounding CHEUNG Lap-sau applies to this court for leave to appeal.

2. The grounds of appeal set out in his Notice were firstly that the learned trial judge erred in ignoring the discrepancies and doubts cast on the evidence of the prosecution witnesses by the medical evidence. As I understand the way the case has been urged upon us, this means that the learned judge did not give due weight to the fact that the evidence of the doctors was equivocal as to whether injuries sustained by the victim resulted from a thrust from a knife or by his having fallen against some other sharp object. There is nothing in this point. The learned judge said in his Reasons for Verdict "The doctors who gave evidence would only say the wound to the left thigh had been caused by a sharp object and that the wounds to the lower front right leg were abrasions." So he did not in any way ignore the effect of the medical evidence.

3. The second ground of appeal was that the learned trial judge erred in ignoring the discrepancies in the evidence of the police prosecution witnesses. That has been rather developed before us in the suggestion of discrepancy between the evidence of the victim and that of the several police witnesses. We have been referred to the evidence in question and to the evidence of the victim himself. This was, at the material point:

"I heard the sound of a gun being fired. After this the applicant calmed down. Then he picked up the knife and stabbed me. At that point I saw another door to the room broken open. There was a door behind me. It had a glass panel which was broken. A barrel of a gun was pushed in. When he stabbed me I called out 'help'. I was stabbed on the back of my left thigh and on front of right leg. - I was kicking out my legs at the time. - The defendant had stabbed me in the legs while I was in the storeroom. He stabbed continuously until the police entered and subdued him. "

The first policeman who entered the room in which the victim had, wrongfully been imprisoned said:

"I pushed the cabinet inwards. I could then see inside the storeroom. I saw defendant getting up.- I called out 'police', Defendant was holding a knife 6" long getting up and stabbing the victim four or five times. I actually saw this. The victim was lying with legs stretched out. The knife hit his foot or leg. He was inside the second shelf. I heard the victim calling for help. "

And a further police witness said:

"As soon as I got in I saw the defendant. I fell as I hit the floor. I saw the defendant was holding an object which looked like and I believed it to be a knife. After he was aware of my presence he used the knife to stab at the victim. I believe he did this four or five times. "

Then he went on to say how the victim, whom he called "the hostage" called out "help" and kicked his legs. There was some cross-examination as to whether or not this particular police witness had seen the applicant pick up a knife from a shelf and it may be that if the chronology as described by one or more police witnesses and that of the victim were compared second by second there might be a slight discrepancy. It would be very surprising were the evidence otherwise and, indeed, would be suspect in a situation where such tension and concern for the well-being of the victim prevailed. In our view the evidence was fully and accurately reflected by the learned judge when, in his Reasons for Verdict, he described it in these terms:

"It is the victim's evidence that the defendant had the knife on a ledge above the shelf in which he was hiding, that on the police assault commencing he grabbed the knife and stabbed at the victim who was lashing out with his legs in an attempt to repell the attack. The police entered while this took place and the defendant was then forcibly knocked to the ground where he still struggled. During that attack the victim says he sustained a stab wound to the back of the left thigh and cut wounds to the front of the lower right leg. There is no dispute that he did have these injuries. "

And then he went on to find that the evidence of the complainant was a true and correct account of what took place. The learned judge rejected the evidence given by the applicant. In the circumstances there is nothing in this ground of appeal either.

The third ground of appeal reads:

"The learned trial judge erred in failing to establish how the weapon came to be broken in two ...."

But no argument has been addressed to us on this ground.

Then ground four:

"That the learned trial judge relied on photographs which record the scene of the incident after certain items at the scene have been moved and are thus inaccurate and may be prejudicial."

We have been referred to the photographs in the context of sharp objects but again no argument has been addressed to us in support of this ground of appeal.

And finally it is said in the grounds:

"That in all the circumstances of the case the verdict against the appellant (that means the applicant) is unsafe and unsatisfactory."

We do not find this to be the case and the application for leave to appeal against conviction is dismissed.

4. Before parting with this particular application we think it proper to say that an attack has been made, in the course of argument, on the character of the victim. This attack, which was, of course, made on instructions from the applicant, we do not accept for a moment and as far as we are concerned the integrity and the character of the victim remain untarnished.

Representation:

Mr. McLanachan (Theresa P.F. Chow & Co.) for appellant

Mr. G.J.X. McCoy, Miss L.M.A. Shine, C.C. for respondent