HKSAR v. Li Kam Cheong

CACC 485/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 485 OF 2004

(ON APPEAL FROM DCCC 1032 of 2004)

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BETWEEN

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Before: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J

Date of Hearing: 9 March 2005

Date of Judgment: 9 March 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 12 November 2004, the applicant was tried and convicted in the District Court, before Judge Line, of wounding with intent and sentenced to three years’ imprisonment.  He now seeks leave to appeal against conviction. 

2.The case against the applicant was mainly provided by the victim of this serious assault, Mr Yeung (PW1), and by the victim’s cousin (PW2) who witnessed the attack.  It took place soon after 11 p.m. on 5 February 2004 just outside PW1’s shop when a drunken customer who was dissatisfied about something, possibly because the victim was in the process of closing his shop, summoned two of his friends by telephone to help him to attack PW1.  They duly arrived from the direction of the tram-track in Johnston Road.  One of them was carrying a heavy, commercial-sized ladle which was then used as a weapon to attack PW1.  Many blows were struck using fists and feet as well as the ladle.  The details, for the purposes of this application, are not important. 

3.PW2 was able to call the police by telephone during the attack and, after it was over, he followed the assailants on foot towards Queen’s Road East.  Eventually, they went in separate directions.  He then followed the one he described as the “taller man” back towards the scene of the attack, to a restaurant in the near vicinity.  Later, PW2 directed a police officer (PW3) to the restaurant where the applicant was arrested.

4.The issue at trial focused on PW2’s identification of the applicant as one of the assailants.  It was accepted that the prosecution wholly depended on the correctness of his identification.  The applicant did not testify.

5.The grounds of appeal amount to a complaint that significant contradictions between the evidence of PW1 and PW2, important differences between the evidence of PW2 and PW3 and departures by PW2 from his witness statement all contributed to making PW2’s identification of the applicant too unreliable to be safely relied upon.

6.Mr Alex Ng, who also defended in the court below, placed some reliance on the fact that PW1, whose glasses were knocked off when he was being attacked, had spoken of it being dark or even “very dark” at the time of the events with other shops being shut at the time, whereas PW2 had spoken of a neighbouring shop being open and, with the aid of this and other lights in the street, being able to see “very clearly”.  Another contradiction between these witnesses related to the length of time taken to commit the assault, PW1 saying “about three minutes” whereas PW2 said “ten minutes”, although he added that he had not checked on his watch.

7.Mr Ng also drew our attention to the differences in the account given by PW2 when compared with PW3’s testimony.  In particular, PW2 spoke of shouting to the police from outside the restaurant, never losing sight of the “taller man” who he identified at the scene as the applicant.  PW3, however, had said that PW2 came up to him at the scene of the attack and then took him to the restaurant. 

8.When Mr Ng turned to PW2’s departures from his witness statement, he again referred to the testimony given by PW2 that he had shouted to the police from the restaurant door to alert them to the applicant’s presence whereas in his statement he had stated that he returned to the victim’s shop to bring the police to the restaurant.

9.On this aspect, the evidence of the police officer, PW3, was accepted by the judge who found that PW2 must necessarily, therefore, have lost sight of the applicant for a time.  This was a finding to which Mr Ng attached considerable importance because PW2 had asserted on a number of occasions that he had never lost sight of the applicant. 

10.One further point made by Mr Ng, perhaps fairly described as being of comparatively small significance, was to the effect that PW2’s description of the “taller man’s” clothing was that he wore a “dark colour jacket”.  When PW3 gave evidence, he spoke of the applicant wearing a red and green windbreaker at the time of his arrest and it was submitted that the judge ought to have made reference to this apparent inconsistency in his assessment of the evidence.

11.These are the main criticisms dealt with by Mr Ng in his most thorough submissions which were helpfully and concisely set out for our assistance.  Indeed, so much so that there was in court nothing that he could usefully add and we would like to express our appreciation for the enormous amount of work that he has done on this application in an effort to present a clear picture before the court which was an example to all. 

12.There were other points which in our view were of comparatively little consequence with which we do not consider it is necessary to deal.  All in all, it was Mr Ng’s submission that the quality of the identification was so poor, because of the cumulative effect of the evidential discrepancies which arose from a close examination of PW2’s testimony in the context of all the evidence given in this one-day trial, that the judge ought to have directed an acquittal.

13.The judge noted PW1’s evidence that the attack lasted about three minutes and, whilst he made no reference to PW1’s evidence that it was “very dark”, the judge observed that this witness had not purported to identify anyone.  This was, we consider, a perfectly adequate way to deal with the effect of PW1’s evidence in the light of his testimony that once his glasses had fallen off, he was unable to see clearly. 

14.Then, with regard to PW2, the judge rightly observed that the street where this all happened could obviously not have been completely dark.  It is not without significance that the location of this attack was the junction of Luard Road and Johnston Road.  This was a main street area where PW2 had been twelve feet away from the attack and had the benefit of other lighting, apart from street lighting, to assist him to see clearly what happened. 

15.The judge described PW2’s estimate of the attack lasting ten minutes as an exaggeration, having noted that an hour after the offence PW2 had made a witness statement in which he stated that the incident had taken “several minutes”.  As to this point, therefore, the judge preferred PW1’s account but he added that:

“… this was not just a few blows exchanged and the parties disengaging very quickly thereafter.  It clearly created a spectacle.  It lasted long enough for 20 to 30 people to gather round and watch it happening.  Thus, in my judgment, (PW2) had a good opportunity to identify the people responsible for this attack.  That opportunity was then extended because he then followed the three as they crossed Johnston Road and went up Ship Street towards Queen’s Road East, and he says that he had them in his sight all the way up to the Hopewell Centre where the three split up, and that one of them walked back down Ship Street and he chose to follow him, and that the man he followed went into a restaurant…”

16.Having set the scene for the identification in this way, the judge then moved on to the most important conflict which arose from PW2’s testimony that he had, in contradiction to what he had said in his witness statement, remained in the restaurant doorway, some twenty metres from the attack on PW1 when he called the police officer to join him.  Only on that basis could the applicant have been in PW2’s view all the time following the attack.  The judge expressed the matter in this way:

“	10.	It was thus with interest that we all awaited the evidence of PW3, who was the police constable who made the arrest, having had the history related to him from PW2. Whilst he cannot say exactly where he was, it is a fair reading of his evidence that he must have been over on the side of Johnston Road where the actual incident had happened. That would be the finding of fact that the defence urge me to make and I shall make it, and it means I do find that PW2 must have left Ship Street by the restaurant and lost sight of the man he had been following to attract the attention of the police officer. I proceed on that basis.
	11.	The policeman told me that he went to the restaurant in Ship Street with PW2, and that the defendant then came out of the toilet and was pointed out as being one of the men assaulting the injured person by PW2, and was so arrested, and after caution he said that he ‘never did it’.
	12.	So even if the second prosecution witness, PW2, was correct in saying he had not left the door, he must have lost sight, when the man went into the toilet, of the man he had been following.”

17.The judge then analysed his findings, with specific reference to R. v. Turnbull & Ors [1976] 63 Cr.App.R 132 at 137, before asking himself whether the fact that PW2 was wrong in saying that the man he had followed had never gone out of his sight made him an “unreliable witness on the basis of either mistake or dishonesty”.  The judge was satisfied that PW2’s evidence given in court was wrong on this point but he went on to say:

“	18.	It would be a huge jump to go from that contradiction to a finding or a belief that PW2 was a deliberately dishonest witness. He clearly was not a dishonest man; one could tell from the way he gave his evidence. No jury would have found that he set out deliberately to mislead this court, and that was not really the basis of the attack upon him. Having seen him and heard him give evidence, I was sure that he was an honest witness.
	19.	The next question then is does that contradiction make him unreliable when it comes to his evidence generally, and his evidence of identifying the defendant in particular? I judge that it did not. He was a perfectly sensible witness. Other than this one matter, basically he inspired confidence. The story he told was a credible one. His actions are what you would expect. And the scope of being mistaken about following the assailants up Ship Street and then one of them going back into the restaurant is one that is not amenable easily to mistake in the circumstances. It either happened or it did not, and I am sure that it did.”

18.The judge also examined some minor discrepancies relating to the way the attack on PW1 had developed when comparing PW2’s account in court with his witness statement.  Having done so, he found that these raised no doubts in his mind about the applicant having used the ladle as a weapon to strike PW1. 

19.Bearing in mind the care with which the judge had approached this matter, with the additional benefit of having seen and heard PW2, we do not consider that his conclusions, taking into account the inconsistencies to be found in the evidence, are open to justifiable criticism.

20.Throughout the judge’s analysis of the evidence, no reference is to be found to PW2’s evidence that the applicant was wearing a “dark colour jacket” yet when he was arrested by police he was seen to be wearing a red and green windbreaker.  This omission is hardly surprising as it was never raised by Mr Ng in cross-examination as we would have expected it to have been if it was seen as a matter of any real significance.  In the result, therefore, we do not know the style of the jacket to which PW2 was referring or whether it may have been a windbreaker.  Again, for all we know, the dark colour he described may have been two-tone. 

21.Finally, the judge expressed himself to be satisfied that the identification of the applicant had been safely made and, in the light of our conclusions, based upon the judge’s analysis, we are unable to accede to Mr Ng’s submissions.  It is apparent that the judge’s findings were considered with meticulous care having particular regard to the guidance given in Turnbull. 

22.The application is dismissed.

Miss Grace Chan, SGC, of the Department of Justice, for the Respondent.

Mr Alex Ng, instructed by Messrs Au, Thong & Tsang, for the Applicant.