The Queen v. Leung Kam Tim

CACC000041/1988

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Cons, V.-P., Kempster & Power JJ.A.

Date of hearing: 22nd April, 1988

Date of judgment: 22nd April, 1988

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J U D G M E N T

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Kempster, J.A. :

1. On 21st December 1987 in the Districts Court Leung Kam Tim was convicted by Judge Downey of wounding Lam Yan Leung with intent to cause him grievous bodily harm at the Lam Tin Estate, Kowloon, on 11th June of that year. Against such conviction Leung Kam Tim seeks leave to appeal.

2. That the victim was wounded at the Lam Tin Estate on 11th June 1987 by two men wielding melon knives was not in dispute. Having regard to the nature and extent of the wounds in fact inflicted it could hardly be suggested that the assailants did not intend to inflict serious bodily harm either. What was in dispute was whether or not the applicant was one of those assailants.

3. Both applicant and victim lived on the Estate and had been acquainted for some years. Indeed, in May of last year the victim had driven his vehicle back of another vehicle being driven by the applicant who, as a result, had demanded HK$3,000 compensation from him. Apparently a number of discussions took place between them in that regard ending with a refusal by the victim to pay compensation on the footing that the applicant had reported the occurrence to the police. The insurance position is far from clear.

4. In relation to the identity of his assailants the victim, in the course of evidence, said that on the evening of 10th to 11th June he had been out for drinks, though not a lot, and that he did not recognise either when first they approached him. At that time they were far away. "One of them approached - he was near the lift entrance (of one of the blocks on the Estate). Be told me to stop and not to move". Then the victim described how he made off and, when at that stage he looked back at the assailants, one of whom was twelve to fifteen feet and the other twenty-five feet from him, he saw that they were carrying knives. He started to run. When asked whether he had recognised either of the men at that time he said "no". The victim also explained how at one stage he was facing one of the assailants who was running towards him.

5. Eventually the two assailants caught up with the victim and slashed him with their knives as he lay on the ground face down. But the victim was not incapacitated because, catching sight of a broom in the vicinity, he got up, seized it and, in his own words, "wielded it madly". Later in his evidence lie said that although the two men were to his side he could not recognise them.

6. Having engaged in combat for a little while, the, victim cast away his broom and again ran. The two assailants followed. He glanced back once and, as Mr. Laskey on behalf of the applicant emphasised, was a that moment only that he concluded that one of the men looked like the applicant. When asked in cross-examination "You were not very sure that one of the assailants was the applicant" he answered "Right". He agreed too that when first he spoke with the police he told them that he did not suspect anybody. In other words he could not identify either of his attackers. He was asked in re-examination how far away the man he thought looked like the applicant was when he looked back. He gave an estimate, by reference to furniture in the court, of fifteen feet.

7. The victim gave evidence of a meeting with the applicant following the collision between their respective vehicles on an occasion other than that during which he suffered injury. When asked what happened on that other occasion he said "Because I was just informed by the police they might prosecute me. I told the applicant) that since he had made the report to the police, compensation would be out of the question". The time, place or date of that meeting was not elicited but it is open to question whether or not it was the occasion described by the applicant in a caution statement in these words : "Later the police charged Ah Leung with careless driving. At the time the case occurred I saw Ah Leung at block 7 ground floor. He accused me of petting him the trouble of being charged, I then quarrelled with him". Fisticuffs ensued.

8. As the judge fairly explained in his Reasons for Verdict the question arises as to whether there was but one incident on that estate during June 1987 in the early hours of the morning which involved the victim and two assailants wielding knives or whether there was another In which only the applicant and the victim were involved.

9. The trial judge rejected a submission of "no case" at the close of the prosecution evidence and, in due course and having heard all the evidence, found himself satisfied that the applicant was one of the two assailants. He had the advantage as compared with us of seeing both witnesses. From my part, however, I am not satisfied that he gave himself appropriate warning about the dangers of identification evidence in circumstances where, albeit the parties knew each other, the victim did not conclusively, identify one of his attackers at times, particularly when he was wielding the broom, when he might reasonable had been expected to do so. A fortiori in my view, as asserted in the Grounds of Appeal, stage when the submission was made and all the judge had before him was unsatisfactory evidence as to identification and an admission by the applicant to an encounter at the same place and at a similar hour in the morning when no serious violence occurred.

10. After anxious consideration I have come to the conclusion that, the admission by the applicant to an encounter does not make good the poor identification evidence and that the conviction was unsafe and unsatisfactory. On those grounds I would allow the application, treat this as the hearing of the appeal, quash the conviction and set aside the sentence.

Cons, V.-P. :

11. I have come to the same conclusion as my Lord by a slightly different path. I am satisfied that the evidence of the victim, despite its obvious weaknesses, was sufficiently. Supported by the statement made by the defendant to found a prima facie case, and if subsequently unexplained to the satisfaction the judge, to warrant a conviction. My anxiety has been caused by the total failure of the victim to recognise the defendant at the time when, confronted by the two men, he wielded the broom to defend himself. He said that. the defendant was well known to him, and during that confrontion, he must have come face to face with the men attacking him. The judge did not, with respect, deal fully with this aspect. He said, at p 4 of his judgment :

"He remembered telling the police officer he didn't suspect anybody in this case. Precisely what he may have said or what was recorded as having been said by him to police officer has not been placed before me in s form of any written statement. But I do have some evidence, from there-examination of Mr. Lam, as well as the other evidence before me, that this interview must have taken place shortly after he was being treated or had been treated at the hospital for the quite severe injuries which clearly he sustained. He told me he felt very dizzy. He couldn't remember whether he had any anaesthetic. He lost a lot of blood. Looking at photographs of his injuries that would not be at all surprising".

But failure to recall and inform the police is not the same as actual failure to recognise. For myself I find it so implausible that he did not then recognise the defendant that I would have serious doubts as to his credibility. I make no criticism of the judge's finding. My conclusion is a purely subjective reaction of the kind referred to in R v Cooper⁽¹⁾. Without the victim's evidence the statement by the defendant is not sufficient to found a conviction. It follows then that on my view of the defendant's evidence the conviction must he unsafe and unsatisfactory. I would therefore also allow the application and make the further orders proposed by my Lord.

Power, J.A. :

12. I am in accord with what has fallen from for the Vice-President. The victim's failure to identify the applicant, given that he knew him and was at the period when the incident occurred, involved with him in a dispute about a traffic accident is difficult to understand and there was no evidence forthcoming which might have explained how it came about. This being so a careful assessment of the credibility overall of the evidence of the victim was clearly called for and none haling been made I also am left with the conclusion that the-conviction was- unsafe and unsatisfactory.

(1) [1968] 53 Cr. App. R. 82

Representation:

Edward Laskey (D.L.A.) for Appellant

I. Grenville Cross & W.S. Cheung for Crown