The Queen v. Leung Tai-keung

CACC000231/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Silke, J.A. & Power, J.

Data of Hearing: 8th August 1986

Date of Judgment: 8th August 1986

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JUDGMENT

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Li, V.-P.:

1. The applicant is convicted of the offence of wounding with intent to cause grievous bodily harm. The charge was that on 7th December 1985 he wounded one Yip Yuk-wan with intent to cause him grievous bodily harm.

2. The evidence in support of the conviction was that at about 8:50 pm on 7th December last year Yip was chopped from behind and sustained severe injuries on the temporal region of the scalp as well as his thumb. All wounds were deep cut wounds.

3. At the time of the attack there was an off duty detective constable Mr. Yip Kwok-hung eating at a cooked food stall in the vicinity. He heard the commotion. He looked into the direction of the noise and saw the applicant running towards him with a knife in each hand. The applicant ran past the detective who gave chase. After running about 400 yards the applicant stopped and turned round. Yip at once told the applicant that he was a police officer and told him to drop the knives. It was not until he drew his revolver that the applicant dropped his knives. At that point the victim arrived holding a folding chair. On seeing that the applicant was covered, he dropped the folding chair and pointing to the applicant saying that. It is he who chopped me. Thereupon the applicant said: Chopped you, so what.  It was on this basis that the constable arrested the applicant, took him back to the police station. Later he was charged.

4. There was evidence that the blood on one of the knives that was recovered matched the blood group of the victim. This was conceded by the defence counsel in the court below.

5. At the trial the victim gave evidence. He made a complete change. His evidence eras quite contrary to the statements he gave to the police. As a result, prosecuting counsel applied to the court to treat him as hostile. The application was granted. Further examination disclosed the inconsistency between his statement to the police and the evidence he gave in court.

6. In his evidence the victim said that he did not really identify the applicant on the spot because his eyes were covered with blood. He thought that since the applicant was caught by the police constable he must be the person who injured him. It was on that basis he asked the question why should he injure him.

7. At the end of the prosecution case the applicant elected not to give evidence. Nor did he call any witness. In the event the judge accepted the evidence of the police constable as to the conversation at the scene and convicted the applicant.

8. In his reason for verdict the judge pointed out that the victim was a totally unreliable and untruthful witness. He pointed out that there was no defence evidence. He said this:

"I believed PW4, that is the constable, when he said that PW3 had identified the accused as his assailant as soon as he arrived at the scene of arrest a very short while after the attack. I found the Crown had proved its case so that I was sure."

9. In support of the application for leave to appeal against conviction learned counsel on behalf of the applicant advanced generally four grounds. The first is that the learned trial judge erred in not giving any weight to the evidence of the victim or, alternatively, was wrong to treat him as hostile. It is argued that before the judge could treat him as hostile, the judge should have made some more detailed inquiry and made sure that he was truly hostile - not simply that the evidence he gave failed to match his statements to the police. However, whether the victim was obviously an unreliable witness or a hostile witness is a question of fact. The judge heard the evidence of the victim whose statements to the police were put to him. As a judge of fact, he was in a position to assess whether he was in fact hostile and unreliable. He permitted the victim to be treated as hostile and found his whole evidence unreliable. The judge was entitled to hold that view having assessed the evidence as a whole. We cannot fault the judge when he placed no weight upon the evidence of the hostile witness.

10. Secondly it is said that the judge drew the wrong inference because it was not the only inference that can be drawn, namely that the applicant was the assailant. The case is one of identification. The victim's explanation in court was that he did not really identify the applicant at all. His eyes were covered with blood and he thought that whoever was arrested by the constable was his assailant. Thus he uttered the words to the effect that: It is he who chopped me.

11. Had the judge relied on that as identification this court would feel bound to quash the conviction as that alone is equivocal. Had the applicant kept silent or said something other than Chopped you, so what again there would have been no identification. However upon that accusation the applicant said: Chopped you, so what. For this reason the judge was entitled to believe PW4 who said that PW3 had identified the accused. The judge must have taken into consideration the reply that was given by the applicant. Such a reply can only admit of one inference and one inference alone. Had there been a wrongful identification or wrong accusation, one would have expected a completely and totally different reply on the part of the applicant. He would have either kept silent or indicated to the victim that he was wrongfully identified.

12. As to the matching of blood on the knife, this was conceded in open court. There is nothing in the Criminal Procedure Ordinance, Section 65(c) that when there is an open admission in court that counsel for the defence must recite Section 65(c) or to say that it is an admission expressly made pursuant to that section.

13. Finally it is said that there was not sufficient evidence to convict the applicant.

14. Having regard to what we have referred to aforesaid, we are of the opinion that there were sufficient evidence for the judge to convict the applicant. For these reasons, the application for leave to appeal against conviction is refused.

Representation:

Mr. Hatton (Hampton, Winter & Glynn) for Applicant

Mr. Bruce for Respondent