The Queen v. Cheng Chi Keung

CACC000451/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon Silke, V-P, Barker, J A & Penlington, J.

Date of Hearing: 13th January 1988

Date of Judgment: 13th January 1988

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J U D G M E N T

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Silke, V.-P.:

1. The Applicant, Cheng Chi Keung, appeared for trial before His Honour Judge Rattigan, sitting as a Deputy Judge of the High Court, on two charges of wounding with intent contrary In section 17 of the offences against the Person Ordinance.

2. Both were said to have taken place on 13th February 1987 at a private premises in Fai Wah House, Lok Wah Estate, the first concerned Man Chak Kuen and the second Chan Cho Nam.

3. The evidence was that Chan and Man were in this flat. The phone rang, it was answered by Chan and a person stated that he was looking for one named Li. Shortly after that, there was a knock on the door and the Applicant, who was known to Chan, also asked for Li. Very shortly after that three men forced their way into the room. The Applicant in the lead. Chan opened the door and was wounded by one of the men almost immediately after the three had entered. It was his evidence that he saw the Applicant carrying a sac-edged knife and that it was the Applicant who then went on to chop Man who was asleep at that time.

4. The issues taken upon this appeal were first the identification of the Applicant by Chan; second the reference in the summing up to two statements which the Applicant had made, the first differing, from the second and as to lies which he was thought to have told; third: at the conclusion of the summing up, counsel then appearing for the Crown had drawn certain matters to the trial judge's attention and the trial judge had simply adopted that which counsel had said without himself re-directing the jury.

5. The Crown's case was encapsulated in the course of the evidence of Chan where Chan said that the Applicant was carrying a knife, a serrated knife, and:

"When he came in, he was chopping Man Chak Kuen and further he came barging, in and it was at that stage that I saw he was holding a knife. And once he was in, he started chopping Man Chak Kuen."

6. It was put to him in cross-examination - this the case for the defence - that when the Applicant came into the flat he was not carrying any weapon and did not chop anyone. The answer to that was:

"When he came in, at that juncture I was not aware that he as carrying a knife and it was when he was chopping tan Chak Kuen that I knew that he had a knife."

7. On the first point: Mr McLanachan complains of the direction of the trial judge where, at page 5 of the summing up, he said this:

"Although this is not a case in which the Crown has to rely entirely on an identification and nothing else, it is the most important part of the evidence which has been put before you. Indeed, if you are sure that the identification of the defendant by the victim CHAN can he accepted as correct, this by itself, without the need for any other evidence, would be sufficient."

8. It was plain that this would not he a sufficiently adequate direction on the issue of an eyesight identification but it was not that; for that the Applicant was present was not in dispute. The issue was: What did the Applicant do and what was he identified as having done.

9. Summings up are delivered in the light of the generality of the evidence given in the trial and where there had been admission of presence made, of which the jury were aware, and they had beard Chan say that he saw the Applicant chopping Man it was a matter for the jury as to whether they accepted that evidence or did not accept it. We do not think that the passage complained of was, in any way, misleading or would have led the jury into error.

10. On the second point: The statements: That which was in the first contradicted with that which was in the second for it was only in the second that the Applicant admitted his presence. The judge gave a general direction as to lies which ended by saying:

"It does not necessarily mean that if someone lies therefore he is guilty."

11. Criticism is levelled at this as not being sufficiently strong or clear in that the trial judge should have directed the jury that lies of themselves are not indicators of guilt.

12. It must be remembered that the jury did not have the benefit of any evidence from the Applicant. They did have the two statements placed before them by consent. Perhaps it would have been preferable had that direction been in stronger terms but again it does not lead the jury into error and we do not think that the jury would have been induced to convict simply because they might have thought the Applicant had lied in the first statement as to his presence.

13. On the third point: When the summing up had finished, and this is a matter which impinges on both the grounds to which we have referred, counsel for the Crown stating himself to have been addressing the judge from an "excess of caution" made mention of the matter of identifying the Applicant's actions rather than the presence of the Applicant himself. He also made mention of the wrongful identification by the witness Chan of actors on an identification parade. This last, of course, did not in any way detract from the positive identification of the Applicant who was a person known to Chan for a period of over a year and with whom he had gone to films and had had tea.

14. It can be dangerous for a judge simply to adopt that which counsel says when he asks for a re-direction. This was the course adopted here. It is safer for a judge, if he thinks it necessary and he thinks fit, to reiterate to the jury the necessary re-directions as coming from himself for he has told the jury at an earlier stage, as indeed did the judge here, that the law was a matter for him. Rut we do not think that the course adopted here made the conviction, in any way, unsafe or unsatisfactory.

15. In those circumstances, the application for leave to appeal against conviction is refused

Sentence: D1

16. The sentence passed upon this youth of sixteen was four years' imprisonment. It was a matter which has given us anxious consideration. His age was literally sixteen for it was his birthday on the day when the offence was committed. He had a clear record. The trial judge obtained and considered both Probation Reports and Reports from the Commissioner of Correctional Services. The Report from the Intake Officer suggested that Detention Centre was not appropriate but that Training Centre might well be considered being of the opinion that a period of "disciplinary training followed by social work oriented after-care supervision" could direct him back on the right track.

17. But the Applicant was the leader of this group. The wounding, though not the most severe, was a serious one. Man had received a laceration on the head, two minor lacerations on the left arm, a laceration on the back of the left shoulder and, the most serious, a laceration 14 cm long and 4 cm deep on the left back. This was described as a major wound deep into the muscle. The Applicant clearly intended to wound and had determined to wound even though Man was the wrong victim. He carried a knife and the offence took place in private premises.

18. In serious offences of this nature youth of itself is not an exceptional circumstances but here the extreme youth of the Applicant was a factor and a matter to be taken into consideration, which the trial judge did. Our attention has been directed to The Queen v Chan Chi Wai⁽¹⁾where a youth of almost seventeen had originally been the subject of a Detention Centre Order and upon Review that order was set aside and a prison sentence imposed. The Court thought that four years to be appropriate but being a Review gave usual discount and imposed three years. There, the wounds were very much more severe than they were here. There was no permanent disability despite the severity of those wounds. Here, it is accepted that the victim will bear scars.

19. As I have said, this matter has given us anxious consideration, it is a strong thing to send a youth of sixteen to prison but this was a planned attack, the public are entitled to protection from this sort of behaviour in their own private homes. However, having, considered Chan⁽¹⁾ we think that four years was too high. Prison is the proper sentence and a period of three years' imprisonment would be the appropriate period in the circumstances here. Leave is granted in relation to sentence and the appeal allowed, four years is reduced to three.

(1) Application for Review No. 17 of 1983 (unreported)

Representation:

John McLanachan, Esq. (Arthur Au & Co.) for Applicant

A.A. Bruce, Esq. for Crown/Respondent