HKSAR v. John Chung Kwan Canty

CACC 405/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 405 OF 2003

(ON APPEAL FROM No.DCCC 219 of 2003)

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 BETWEEN

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Before Hon Yeung JA, Beeson J & Suffiad J in Court

Date of Hearing:  7 July 2004

Date of Judgment: 7 July 2004

Date of handing down Reasons for Judgment: 27 July 2004

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving reasons for judgment of the Court):

Introduction

1.On 7 July 2004, we dismissed the application for leave to appeal against conviction. We indicated that we would give our reasons in due course and this we now do.

Background

2.The applicant, John Chung-kwan, Canty, appeared before Judge Whaley in the District Court on an indictment consisting of nine counts of wounding with intent and one count of causing grievous bodily harm with intent.

3.The prosecution did not lead evidence on the 5^th charge of wounding and it was ordered to remain on the file and not to be proceeded with, without leave.

4.The applicant pleaded not guilty. He was acquitted of the 9^th charge of wounding, as the prosecution was unable to call the victim of that charge to give evidence.

5.The applicant was convicted of the other charges (seven counts of wounding and one count of causing grievous bodily harm with intent).

6.He sought leave to appeal against the conviction.

7.The charges arose out of an attack on a group of young men on 29 November 2001.

8.The incident began at the Ye Po Din Discotheque (the discotheque) in Mongkok where two groups of people had a quarrel, resulting in pushing, bumping and the throwing of objects.

9.Security men intervened. They stopped the quarrelling and escorted both groups to leave the discotheque. The two groups then stood on opposite sides of the road and verbally abused each other.

10.Despite the arrival of police officers, the numbers in each group continued to increase. The two groups only dispersed after the arrival of police reinforcement.

11.Members of one of the groups (the victim group) then went to Tak Fat teahouse in Tai Po and occupied the entire mezzanine floor to have tea. At about 4 a.m. another group of men (the attacking group) came up, each carrying a big beef knife to attack them.

12.The attacking group used knives to strike at the victim group. Attempts to defend themselves were unsuccessful. A number of victims were seriously injured in the attack; and some were further injured when they tried to escape, hence the nine charges of wounding and one charge of causing grievous bodily harm with intent against the applicant.

13.It was the prosecution case that the applicant was a member of the group that had a dispute with the victim group at the discotheque and that he was also one of the attacking group.

Evidence against the applicant

14.Mak Chun-sing (Mak), victim of the 1^st charge, said he saw the applicant at the discotheque. Before the quarrel started, the applicant was standing outside the doorway of the toilet where the lighting was bright.

15.During the pushing and bumping, the applicant appeared to be “furious”. However, Mak did not see clearly if the applicant was injured and he did not see him bleeding.

16.When the two groups were escorted out of the discotheque and were shouting at each other, the applicant was standing by the side of the road and was talking to someone. Mak said the applicant was about 20 feet away.

17.Mak was adamant that the applicant was one of the attacking group when they came up to the mezzanine floor of Tak Fat teahouse. He said the applicant was wearing a “duck-beak cap” and had a plastic sticker on his nose.

18.The applicant took out a knife when the attacking group rushed up the staircase. Mak said he did not see the applicant chopping anyone, but he himself was chopped by one of the assailants.

19.Mak attended two identification parades on 9 April 2002 and 18 December 2002. On both occasions, Mak identified the applicant. On the first occasion, he identified the applicant as someone he saw at the discotheque and on the second occasion, he recognized his face.

20.Choi Chi-kan (Choi), victim of the 4^th charge, also saw the applicant outside the doorway of the toilet during the quarrel at the discotheque. However, under cross- examination, Choi said he did not see the applicant inside the discotheque.

21.After the two groups were separated and escorted downstairs, he saw the applicant standing with the other group abusing Choi’s group with foul language. Choi said that was the first time he saw the applicant.

22.At the Tak Fat teahouse, Choi saw the applicant rushing up the staircase. Choi also saw the applicant pulling out a knife-a Gurkha kukri- from the umbrella that he was holding to attack the victim group.

23.Others in the attacking group, and not the applicant, chopped Choi. However, Choi saw the applicant chopping some of his friends.

24.Choi attended an identification parade on 18 December 2001 and identified the applicant. He said he was able to spot him right away.

25.In one of his witness’s statements, Choi said he only paid attention to one of the attackers who was aged about 30, with fat build. He was 1.8-metre tall with short and straight hair dyed golden. Choi explained that he was lying on the floor during the attack and estimated the height of the attacker in such position.

26.After identifying the applicant on 18 December 2001, Choi said he recognized him by his round face and features, as the applicant was the only assailant of a fat build. He also then estimated his height at 1.63 metres.

27.Choi was able to remember that the applicant was wearing a hat at the time of the attack and he was able to see the length and colour of his hair on the sides of his head.

28.Lau Chi-keung (Lau), victim of the 8^th charge also confirmed the applicant’s presence at the discotheque. Lau said the applicant was actually involved in the fighting outside the toilet, which lasted 5 minutes.

29.After the two groups left the discotheque, he again saw the applicant with the other group cursing him and his friends in foul language. Lau said the applicant was particularly fierce and hence he had a deep impression of him.

30.Lau was also able to say that the applicant came up the staircase at the Tak Fat teahouse, holding a Gurkha kukri. The applicant pointed at the victim group and said, “it’s the group” before the chopping started.

31.Lau also said two attackers were wearing caps and the applicant was the one who wore the cap with the “beak” at the back of his head. Lau said he saw the applicant for 5 minutes in the attack. He also said the applicant’s nose had a plaster on it at the teahouse, but not so at the discotheque.

32.Lau attended an identification parade in December 2001 and identified the applicant as “the trouble-maker”.

33.Lau agreed that it was only after identifying the applicant that he told the police that the applicant was involved in the fighting at the discotheque.

34.The other victims, and two other eyewitnesses gave evidence. They all confirmed what took place at the discotheque and at Tak Fat teahouse. They were unable to recognize the applicant.

Defence case

35.The applicant admitted being present at the discotheque at the material time. He said he noticed people pushing and bumping with the use of foul language and there was also throwing of glass bottles.

36.The applicant said he did not take part in the fighting and he did not shout at anybody. He in fact walked away to distance himself from the scuffle.

37.However, the applicant accidentally slipped and injured his head and he was bleeding. He was then escorted downstairs and a police asked him how he came by his injuries. He declined the police’s offer of taking him to the hospital and he went to his car, which was parked nearby, and drove home, arriving home at 3.30 to 4 am.

38.The applicant denied going to the teahouse in Tai Po to attack anyone. He said after he woke her up, his wife helped him to dress his wound and he stayed at home until 10 a.m.

39.The applicant’s wife also gave evidence to support the applicant’s story. In particular, she said the applicant returned home at 3 to 4 a.m. on 29 November 2001 and she noticed his head injured. She then dressed his wound and thereafter they rested together until she left home later in the morning.

40.The applicant’s wife agreed that she had told the police that the applicant was “bashed” on the head when she was questioned on 18 November 2002. She also told the police that as she could not remove the bloodstain, she discarded the applicant’s clothing.

The Judge’s findings

41.The applicant’s story of how his head was injured in the discotheque was plainly not a convincing one.

42.The judge refused to accept the evidence of the applicant and that of his wife. The judge pointed out the discrepancies between her evidence and what she told the police in the course of the investigation.

43.The judge also said the discarding of the applicant’s clothing was inconsistent with the suggestion that the applicant injured himself in a fall.

44.The judge criticized the way in which the applicant presented his evidence at trial, including the alibi evidence and his belated attempt to obtain the video recording showing the lift of the building where he lived.

45.The judge accepted the evidence of the prosecution witnesses. In particular, he concluded that the victims were truthful and had tried their best to recall what they had observed.

46.The judge found that the applicant was present at the discotheque during the quarrelling and that he also went upstairs to the mezzanine floor of Tak Fat teahouse to attack the victim group.

47.The judge took the view the lighting conditions at the material time were adequate to enable Mak, Choi and Lau to correctly identify the applicant.

48.The judge pointed out that the applicant must have been injured at some stage at the discotheque, although none of the civilian witnesses noticed his injuries.

49.The judge concluded that the applicant was part of the joint enterprise to inflict injuries to the victim group who sustained serious chop wounds, and that the attacking group had the intent to cause grievous bodily harm to the victims.

50.The judge therefore convicted the applicant on the remaining eight charges.

Grounds of Appeal

51.Mr Boyton, on behalf of the applicant, raised two grounds of appeal. He suggested that there were discrepancies between the evidence of the victims and the police as to whether the applicant was present outside the discotheque when the police reinforcement arrived.

52.Mr Boyton also pointed out that none of the witnesses had said in their evidence that they noticed any injuries on the applicant at the discotheque.

53.It was suggested that the discrepancies affect the quality of the subsequent identification evidence as the identification of the applicant at the discotheque was used to support the subsequent identification of the applicant, yet the judge failed to resolve such discrepancies.

54.Mr Boyton emphasized that Mak, Choi, and Lau all failed to mention that they saw the applicant outside the discotheque in their witnesses’ statements and that such failure was more than a coincidence.

55.Mr Boyton further suggested that if the judge had properly dealt with the aforesaid discrepancies and shortcomings of the identification evidence, he would have had a doubt about the reliability of the identification evidence.

56.On a proper analysis, there was in fact no discrepancy between the evidence of the police and those of the witnesses as to whether the applicant was present outside the discotheque.

57.Although one of the police officers who initially arrived at the discotheque saw the applicant and told him to leave on seeing his injuries, none of the witnesses was asked to specify the precise moment when they saw the applicant.

58.Clearly there were already scuffle and shouting in the street between the two groups before the arrival of any police officer and the witnesses could well have been referring to such time when they said they saw the applicant.

59.It is true that Mak, Choi and Lau failed to mention the roadside incidence in their witnesses’ statements. The judge was well aware of it. The witnesses had been severely cross-examined on the issue.

60.Further, it is not disputed that the applicant was present in the discotheque and that he also went downstairs at some stage. The only dispute was at what stage did the applicant leave.

61.Viewed in that regard, the failure to mention the roadside incidence by the witnesses was not fatal. There was no conceivable reason for the witnesses to lie on such matter.

62.The other discrepancies identified by Mr Boyton were not significant at all.

63.The prosecution case rested on identification evidence.

64.Although the witnesses only identified the applicant one year after the event, it must be remembered that three witnesses, and not just one, identified the applicant.

65.All the identifying witnesses said the lighting conditions were good. They had ample opportunity to see the applicant’s face and in particular, they were able to see the applicant’s face well at the time of the attack.

66.The witnesses also had prior occasions to see the applicant’s face in and outside the discotheque when the applicant took an active role in the scuffle.

67.The judge had carefully examined the identification evidence before relying on such evidence. The judge had also placed reliance on the applicant’s role in the scuffle; the fact that he had a plaster on his nose during the attack at the teahouse; that he was wearing a cap; and the general description of the build and height of the applicant.

68.We have carefully considered the evidence as well as counsel’s submission. The judge was entitled to conclude as he did that the applicant was one of the attacking group in inflicting injuries on the victims and that he was acting in concert with the other attackers.

Conclusion

69.We did not find the convictions against the applicant unsafe or unsatisfactory at all.

70.The application for leave to appeal against conviction was therefore dismissed.

Mr David Leung, SGC of the Department of Justice for the Respondent.

Mr David Boyton instructed by Messrs Cham & Co. for the Applicant.