HKSAR v. Chan Sui Wai

CACC 125/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 125 OF 2004

(ON APPEAL FROM DCCC NO. 924 OF 2003)

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BETWEEN

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Before : Hon Woo VP, Pang and Lugar-Mawson JJ in Court

Date of Hearing : 12 November 2004

Date of Judgment : 12 November 2004

Date of Reasons for Judgment : 18 November 2004

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

Introduction

1.On 12 November 2004, after hearing the appellant Chan Sui-wai, we dismissed his appeal against conviction.  Our reasons appear below.

2.On 14 January 2004, the appellant Chan Sui-wai was convicted by Deputy Judge Lin in the District Court of a single charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 and was sentenced to 3 years’ imprisonment.  

3.The appellant applied for leave to appeal against conviction out of time, and leave was granted on 31 August 2004 by Yeung JA.  

4.The particulars of offence was that the appellant on 2 May 2003, at the kitchen of Club Oasis Restaurant, No. 23, Parc Oasis Road, Yau Yat Chuen, Kowloon, unlawfully and maliciously wounded Ho Ting-tsz (“Ho”), with intent to do him grievous bodily harm. 

5.At his trial, the appellant was originally represented by a lawyer assigned by the Legal Aid Department.  He discharged his lawyer and acted on his own behalf at the last moment.  During the course of the ensuing trial, the appellant put questions to the prosecution witnesses, and at the close of the prosecution’s case he chose not to give evidence nor call any defence witness.

The prosecution’s case and evidence

6.The prosecution’s case was that in the early afternoon on 2 May 2003, the appellant had an altercation with a colleague in the kitchen, namely Ho, in the process of which he threw a chopper at Ho causing injuries on his left arm. 

7.The main witness was Ho who was PW1.  He described that in the afternoon of 2 May 2003, he had an argument with the appellant, who was a dim sum chef.  While they were arguing, PW1 felt something hit his left arm.  When he looked at the appellant some feet away across a steel working table, he saw the appellant grab hold of a chopper and attempt to attack him.  PW1 tried to stop the appellant by going over to grab the appellant by his right arm.  However, PW1 lost strength because of the injury on his arm.  Eventually the two got into a struggle and both fell on the ground. 

8.At some point, the appellant pressed PW1 onto the ground and used the chopper to slap him on the forehead and told him not to move.  Eventually the police arrived and PW1 was taken to the hospital where he was diagnosed to have suffered an 8cm cut on the left arm with a chip fracture on the left humeral bone.

9.PW1 admitted that he did not actually see the appellant pick up the first chopper.  The first time he felt that there was any pain was when the chopper hit him. 

10.PW2, Yeung Kam-chi was the kitchen supervisor.  He told the judge that on 2 May 2004, shortly after he had terminated the appellant’s employment, the altercation between the appellant and PW1 started.  PW2 was present and was minding his own business when he heard a bang.  He looked up and saw PW1’s left arm bleeding, but he did not know what had hit PW1.  He also saw PW1 throw something back although he did not see the object.  He denied that he had ever stabbed the appellant with a pair of scissors.

11.PW3, Mr Kwan Tak-ming, was the property supervisor of the Club.  He was having a meal in the restaurant when he heard a noise from the kitchen.  He rushed in and saw the appellant kneeling on PW1’s ribs and holding a chopper, raising it as if he was about to chop.  The appellant looked angry.  PW3 shouted at them asking them not to do anything rash and then went out to make a report to the Police.  When being cross-examined, PW3 said he never saw anyone stab the appellant with a pair of scissors on the ribs.

12.The judge had this to say:

“15.        From the evidence of all three witnesses I was left in no doubt that PW1 was injured by a chopper which was thrown at him by the defendant [appellant] resulting in the injury described above.”

13.PW4 was PC 59111.  He told the judge that he arrived at the scene at 2.10pm.  He saw two men struggling on the floor, although he did not remember who was on top of whom.  He also saw the appellant holding a chopper.  He told him to drop it and he did.  When he saw the wounds on the appellant’s ribcage, he asked the appellant how he sustained those injuries.  The appellant replied that maybe they were sustained while he was struggling with the other person.  He arrested the appellant for wounding.  Under caution, the appellant stated that:

“Ah Sir, earlier on I had an argument with him.  I was angry with him and I threw a chopper at him.  I didn’t know it would hurt him.”

14.Despite the objection by the appellant to this verbal confession made to PW4 on the basis that at the time he was barely conscious, the judge eventually admitted the statement. 

15.Apart from the medical evidence on the 8cm cut wound on the left arm of PW1, two doctors were called by the prosecution to give evidence on the two stab wounds on the appellant and his condition.  PW7, Dr Yeung Ka-shing told the court that the two stab wounds on the appellant’s lower chest wall were each measured 5mm with no active bleeding.  These wounds were superficial, and each was about 1 to 2mm deep. 

16.PW8, Dr James Wong Cheuk-ho, testified that shortly after midnight on 3 May when he examined the appellant, he found the appellant not responding to stimuli.  The doctor could not locate any reason for the appellant’s lack of response.  He stated that objectively the appellant was normal in other respects.

The appellant’s case at trial

17.The appellant’s case at the trial was that it was PW1 who grabbed him by the neck and PW2 stabbed him on the ribcage.  The appellant also suggested that he became unconscious.  He also alleged that he was hit by the police in the custodial ward of the Caritas Hospital after he had been taken there.  As a result he suffered a right head injury, a shoulder injury and his right forearm swelled to twice its normal size.  However, according to the medical record, the appellant only complained of a right elbow wound.  PW8 could only detect mild tenderness on the right elbow, and the MRI and CT scan tests revealed no injury. 

The judge’s findings

18.Apart from accepting the evidence of PW1, PW2 and PW3, the judge said:

“24.        Although the complaint of police brutality had no direct bearing on the issue in this case, I noted however that none of the defendant’s allegations were supported by any medical evidence.  I found the police officer was a good witness.  He gave clear evidence and was unshaken under cross-examination.  His account concerning the medical condition of the defendant when he first saw him was consistent with that given by the other doctors.  Likewise for the doctors, I saw no motive as to why they should lie to this court to the detriment of the defendant.  Their evidence was also consistent with the contemporaneous records of the respective hospitals.  I believed their evidence.

25.         The defendant elected not to give evidence on the special issue.  I therefore did not have the defendant’s evidence to consider.  However, the prosecution still had to prove that the defendant did make the admissions and that the admissions were made in a manner as described by the police officer.  For the reasons already given, I was satisfied that at the time when the defendant was arrested he was perfectly conscious and he remained to be conscious all the way until at least before he was transferred to Queen Elizabeth Hospital.

26.         I found the defendant did utter the words as described by the prosecution and that utterance was made following a verbal warning and a verbal caution and a declaration of arrest.  I saw no reason why this court should exercise discretion to exclude this particular part of the evidence and they were admitted as such.”

19.The judge made the following findings:

(a)         There was no possible room for doubt that PW1 was injured.  When PW1 felt the pain, the appellant was some paces away.  Shortly afterwards, the police found a chopper on the floor nearby.  The defendant also admitted throwing a chopper at him.  There was no doubt at all that the injury was caused by the chopper.

(b)        The appellant’s subsequent behaviour of grabbing another chopper and pressing PW1 onto the ground proved beyond doubt that the appellant did intend to cause harm to PW1 by throwing the chopper at him.

(c)         There was no sufficient evidence for a finding of fact to be made as to how the appellant sustained the stab wounds on the lower part of his chest.  But the judge was satisfied that PW1 did not attack the appellant with the scissors and that the appellant did not in any way defend himself by behaving in the way he did. 

The grounds of appeal

20.The matters raised by the appellant as his grounds of appeal all relate to facts. 

21.The main ground was that he did not assault PW1.  He submitted that PW1 held the knife and came over to chop him.  PW1 used his hands to grab him on the neck and drag him to walk along.  The appellant saw PW2 stabbing him with scissors on the chest.  He sustained serious injuries and fainted.  PW2 fabricated evidence before the judge.  The appellant had the employer’s cheque and an AIA Mandatory Provident Fund statement as proof.  The appellant also referred to his industrial accident employee’s compensation claim filed with the Labour Department.  He also wrote out in some detail about his complaint against police brutality that took place at 4.20pm on 2 May 2003 in the Caritas Hospital.  He alleged that PW4 PC 59111 and other police officers assaulted him in the hospital and that PW4 fabricated the contents of his notebook to frame him.

22.The appellant filed two Notices of Motion, dated respectively 31 March 2004 and 17 May 2004, seeking leave from this Court to adduce fresh evidence.  The fresh evidence sought to be adduced consists of statements of PW1, PW2, PW3, PW4 and others, the medical reports on the appellant’s injuries and the unused materials that were made available by the prosecution to his lawyer before he was discharged.  The evidence also contains his complaints against police officers to the Complaint Against Police Office and the statements of various witnesses relating to that complaint. 

23.As the judge correctly commented, the complaint lodged by the appellant of police brutality had no direct bearing on the issue in this case.  Even disregarding PW4 PC 59111’s evidence of the appellant’s verbal confession to him, there was ample evidence for the judge to convict the appellant. 

24.Moreover, as Mr Tam, for the respondent, has rightly pointed out in his written submissions, the allegation now made by the appellant that PW1 held the chopper and attempted to chop him was at variance with the appellant’s case before the judge, which was that PW1 grabbed him by the neck and PW2 stabbed him with the scissors.  Another difference appeared in the “Notification of Accident” dated 2 July 2003 that the appellant apparently filed with the Labour Department; in answer to the question “How did the accident happen?”, he stated:

“On that day, at the dim sum working place, a kitchen worker threw his arm around my neck and even stabbed and injured me with a pair of sharp scissors.  At that time, I was having a quarrel with the kitchen worker.”

25.In his notice of motion dated 17 May 2004, the appellant put in an affirmation in support.  In that affirmation the appellant referred to statements contained in the unused materials.  He referred to the statement given by one Lee Kin-yan, Senior Property Officer.  The appellant affirmed as follows:

“Lee Kin-yan’s statement states: I am Lee Kin-yan.  At two o’clock, I saw Yeung Kam-chi and other staff coming out from the kitchen.  I heard somebody say that a fight had broken out in the kitchen.  I went to the kitchen to check.  I saw that the dim sum master Chan Sui-wai was lying on the floor near the kitchen door, and there was blood on his upper garment.  I saw no one else.  I told the staff to call the police….”.

26.We find this assertion of the appellant misleading.  Lee Kin-yan’s statement must be viewed in its proper context.  The statement in fact reads as follows:

“At about 2pm, I finished meal and was prepared to go back to the management office to work.  At that time I was having meal near the door to the kitchen.  Suddenly, I saw the kitchen supervisor YEUNG Kam-chi and other staff come out of the kitchen.  I heard someone say that there were people fighting in the kitchen.  I popped my head into the kitchen to see what happened.  I saw the dim-sum master CHAN Sui-wai lying on the floor near the door of the kitchen with bloodstain on his upper garment, holding a chopper in his right hand.  He faced the inside of the kitchen and said, ‘I have a knife.’  I looked inside and because there was a turn in the kitchen, I could not see other people.  I was afraid there would be danger, so I did not get into the kitchen.  I told other staff to call the police.”

27.The appellant explained to us that the purpose of his proposing to exhibit the employer’s cheque and the Mandatory Provident Fund statement was to show that PW2 was lying in telling the judge that on 2 May 2003, shortly before the altercation, he dismissed the appellant from his employment in the kitchen.  The documents proposed to be produced by the appellant show that he was paid his wages up to 9 May 2003 and the employer’s contribution towards the Mandatory Provident Fund was also up to that date.  These documents, so the appellant contended, contradicted PW2’s evidence that the appellant was dismissed on 2 May 2003.  But according to the contract of employment also produced by the appellant, 7 days’ advance notice for termination should be given.  Obviously, the appellant was paid 7 days wages in lieu of notice, and that was why his wage and the contribution to the provident fund were paid up to 9 May 2003, 7 days after his dismissal on 2 May 2003.  These documents are not useful in attacking PW2’s credit.

28.We have examined the fresh evidence sought to be adduced by the appellant.  We come to the conclusion that none of the evidence would assist him or would cast any doubt on the propriety of the conviction.  We refuse the applications to adduce fresh evidence. 

Conclusion

29.The appellant has not shown that the judge had erred in law or there was any material irregularity in the proceedings or that the conviction was in any way unsafe or unsatisfactory.  The appeal must be dismissed.

Mr William Tam, SGC of the Department of Justice, for the Respondent

The Appellant, in person