HKSAR v. Terrado Alfredo S and Another

CACC 112/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 112 OF 2005

(ON APPEAL FROM DCCC NO. 1108 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and McMahon J in Court

Date of Hearing : 27 September 2005

Date of Judgment : 27 September 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This is an appeal pursuant to leave granted by a single judge, against conviction and sentence.  The appellants, who are brothers, were the first and second defendants at trial before Deputy District Court Judge Mary Wu.  There was a third defendant Raymond Terrado, another brother, who was also convicted and in his case leave to appeal was refused and he has not renewed his application.

2.There were three charges:

(1)	The first charge alleged that on 29 March 2004 outside a snack shop in Hennessy Road, all three defendants unlawfully and maliciously wounded Ng Kar-yiu, with intent to do him grievous bodily harm.  Ng was the first prosecution witness and was a customer at the shop;
(2)	the second charge alleged that the three defendants on the same occasion assaulted Ling Hon-kit, a man who worked at the shop as a waiter, thereby occasioning him actual bodily harm; and
(3)	the third charge was another charge of assault occasioning actual bodily harm, alsolevelled at all three defendants in respect of the same occasion, and the alleged victim in respect of this charge was the man who was in charge of the shop on the evening in question, Cheng Sik-keung.

3.The effect of the testimony of the three complainants was that at about 2 a.m. on the day in question, Ng had parked his motorcycle outside the shop and that one of the three men was seen to push it over.  Ng went out and challenged them and it was apparent that they were the worse for drink and one of them pushed Ling to the ground.  The three brothers then left.  Not long thereafter they returned; one of them, the third defendant, was holding a long iron bar.  Ng said that he was afraid that the third defendant was going to damage his motorcycle and therefore he walked in the direction of the cycle, but the third defendant waved the iron bar and attacked him with it.  The testimony of the other two complainants was to similar effect and they said that the three men came to the entrance of the shop but were stopped by the complainants; and that one of the other two – not the third defendant – took up a folding chair and Cheng was struck with it on the head.  All three complainants struggled with their assailants.  The third defendant ran away but he was apprehended shortly thereafter.  The first and second defendants did not run and they were apprehended at the scene by the police.

4.At the trial, only the second defendant gave evidence on behalf of the defence.  He conceded that all three brothers had been drinking for some hours before the incident outside the snack shop.  He said that he had accidentally bumped the motorcycle which had fallen to the ground and that thereupon the three complainants followed the three brothers in anger, and they set upon the third defendant and, further, that a number of other men then arrived on the scene and that a struggle ensued between them and the three brothers.

5.The judge accepted the testimony of the complainants and rejected the testimony of the second defendant.  She noted that both the second defendant and the third defendant also sustained injuries but assessed them as being consistent with the struggle which the complainants had described.  She concluded that all three defendants had been acting in concert when they returned to the scene, and that they were intent upon revenge.  Accordingly, she held them each guilty of the three separate offences.

6.In relation to conviction, the appellants assert that they are not guilty and that they hurt no one.  The first appellant today offered his account of the events saying that he only went to stop his brother; but as we have explained to him this is not a retrial and this is not testimony that he gave at the trial itself.  Furthermore, the fact that he may or may not himself have struck a particular blow is not to the point.  The question in the case was whether he was party to a joint enterprise.  It is apparent that the single judge who granted leave did so in order that this Court could properly consider whether the testimony sufficiently established such a joint enterprise.  We have studied the evidence and we are satisfied that the judge was entitled to find that when the men returned to the shop, one of them armed with an iron bar – a long and dangerous weapon, the carrying of which none could have failed to see – and another picking up a folding stool, and the three of them engaging upon a struggle with the three complainants, the three brothers were clearly acting in concert.

7.The second appellant today says to us that all the prosecution witnesses gave false testimony.  The credibility of their account was a matter assessed by the judge after seeing and hearing them as witnesses, witnesses who had, so far as the judge could see, no cause to fabricate the story.  On the other hand, it is clear from the appellants’ own testimony at trial, as well as comments today, that at the time of these events, each was somewhat the worse for drink.  We do not see any basis for concluding that the judge erred in her approach or in her findings and, accordingly, the appeals against conviction are dismissed.

8.We turn next to the question of sentence.  Mr Ng, the one who was assaulted with the iron bar, sustained lacerations to his left ear and lacerations to his right index finger, and abrasions to a thumb and a shin.  Mr Ling, the waiter, had a swelling and bruising to his right eyebrow, abrasions and bruising to his chest and injuries to his right buttock.  Mr Cheng, the person in charge of the shop on the night in question, had a superficial laceration to the scalp, and injury to his chest, left hand and upper abdomen.  

9.The first appellant was aged 36 years at the date of conviction and he had been convicted in 1997 of an immigration offence.  The second appellant was aged 33 years at the date of conviction and had a clear record.

10.The judge sentenced the appellants to a term of 18 months’ imprisonment in respect of Charge 1; six months in respect of Charges 2 and 3 and ordered that the three months of the sentences imposed on Charges 2 and 3 run consecutively to each other and to the sentence imposed on Charge 1, making a total of two years’ imprisonment.

11.The first appellant says that the sentences are too long because he never hurt anybody; and the second appellant says also that his sentence is too long.  The fact that one of the appellants may, if that be the case, not himself have caused injury to a particular victim is beside the point in a case where several men act in concert.  None of the brothers could have failed to see that one of them was armed with an iron bar when they approached the shop on the second occasion.  We have photographs of that weapon and it is a nasty long weapon with a pointed end.  It is a matter of pure luck, especially when a blow lands in the region of the head that Mr Ng’s injuries were not more severe.  It is not possible in the circumstances to say that the sentences imposed were either manifestly excessive or wrong in principle; and therefore the appeals against sentence are also dismissed.

D1 and D2 in person

Ms Mary Sin, SADPP of the Department of Justice for the Respondent