The Queen v. Chow Cheung Kan

CACC000105/1989

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

(On Appeal from District Court Case No. 758 of 1988)

CRIMINAL APPEAL NO. 105 OF 1989

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BETWEEN

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Coram: The Hon. Fuad, V-P, Penlington, J.A. & O'Connor, J.

Date of Hearing: 8 November 1989

Date of Delivery of Judgment: 8 November 1989

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J U D G M E N T

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O'Connor J., delivering the judgment of the Court:

1. The Applicant appeals against convictions, in the District Court, on a charge of assault occassioning actual bodily harm contrary to Common Law, and a charge of dealing with a firearm with reckless disregard for the safety of others contrary to Section 22 of the Firearms and Ammunition Ordinance.

2. The persons involved were all Customs officers. The prosecution evidence was to the effect that, on the morning of the 8th of August, the Defendant told the P.W.2, Cheung Chi Hing, that someone, who he thought was Yeung Man Tat the P.W.1 and victim, has written apparently insulting, words, in chalk on his, the Defendant's, locker. The P.W.2, reported this conversation to the victim. Later that day, the three men were together in the Rest Room at the request of the victim and the P.W.2. The Defendant there accused the victim of being responsible for the marks on the locker. The victim denied it. The victim and the Defendant verbally abused each other, and this was followed by some showing. Eventually the Defendant drew his loaded gun from its holster and pointed it at the victim. The P.W.2 pushed the gun away and the Defendant brought it back to point again at the victim. The P.W.2 again pushed it away. The victim went forward, to assist the P.W.2, and the Defendant then hit him on the forehead with the gun. The P.W.3, Cheung King Wai, heard the victim shouting from the Rest Room, and therefore opened the door and entered. Therefrom he saw the Defendant holding the gun in both hands at arms length, and pointing it at the victim, who was bleeding.

3. The Defendant's evidence was to the effect that there had been insulting chalk writing on his locker and that he had told the P.W.2 about it, but, that he, had not said that he suspected the victim. He said in evidence that the P.W.2 asked him to go into the Rest Room, and that omen he got inside he was held by the P.W.2, while the victim assaulted him, punching him the face and kicking him. The Defendant said that he pulled out his gun, in order to stop people hitting him, and that in the course of this struggle it hit the P.W.1 on the head. He said that after that, everyone stood there, stunned anti motionless. He then started to look for his spectacles, which had fallen off and the victim rushed towards him. Then someone entered the room. He said that later he saw the victim at the hospital and the victim told him that they should settle the matter and say that he, the victim, fell and injured himself. The Defendant said that on the telephone, with the victim standing beside and listening, he, the Defendant, told Inspector Lam, who was a derence witness, that the victim had asked him to say that the victim just fell and injured himself. The Defendant said that the victim then spoke to Inspector Lam on the phone and confirmed that matter.

4. Inspector Lam confirmed the Defendant's evidence of what the Defendant had told him on the phone. He said that he then spoke on the phone to the victim and asked the victim if he had heard what the Defendant said, and victim said that he had and Inspector Lam said that tie asked the victim whether he had asked the Defendant to have the matter settled, and that the victim agreed he had.

5. The victim in his evidence had denied seeing the Defendant at the hospital and he had denied speaking on the telephone from the hospital to Inspector Lam

6. Counsel for the Defendant asks us to consider the grounds of appeal as a whole, and says that when so viewed tile convictions are unsafe and unsatisfactory. The gist of his complaint is that the judge did not give proper consideration to matters that arose on the evidence, nor did he satisfactorily determine the issues that arose. He points to a number of inconsistencies which he says ought to have been expressly dealt with by the judge, arid which were not so dealt with at all, or were inadequately dealt with. In so far as there is any factual basis for this contention in respect of any inconsistencies not expressly dealt with by the judge, we find the inconsistencies are individually and cumulatively of a trivial nature, of the sort to be expected from honest witnesses, and not of a type that calls for the judge to set them out and expressly deal with them in his Reasons for Verdict. As regards the inconsistencies which were expressly dealt with by the judge, we find that he considered them carefully and satisfactorily.

7. A ground of appeal is that the judge did not consider and adequately deal with a number of matters which are said to be indicative of the victim and P.W.2 being the aggressors. We fine nothing in that point.

8. A further ground is that the judge did not consider self defence. On the judge's primary findings of fact, no issue of self defence arose. A judge, when arriving at his conclusions, does not ignore the possibility of other conclusions being open on the evidence, nor does he consider various pieces of evidence in isolation from the other evidence in the case, even though when reducing his reasons to writing the various pieces of evidence and issues may be dealt with separately. The possibility of a factual basis for self defence, or even accident which was the defence suggested by defence counsel at the trial, would have been before the judge when he was arriving at his conclusions, and making his primary findings of fact. It is not a matter for criticises that having found primary facts which left no scope for self defence, he did not expressly go, on a false trail, to consider it.

9. It is suggested that the judge did not properly consider the evidence of the defence witness Inspector Lam. We consider that the Reasons for Verdict disclose a full appreciation and adequate consideration of the matters bearing upon the credit and credibility of Inspector Lam. Another matter urged by counsel for the Defendant is that the judge criticised the Defendant's use in evidence of the word 'instinctively' in relation to drawing his revolver, whereas he did not criticise the victim for using the same wore in relation to his going towards the Defendant when P.W.2 pushed the gun aside. This is a valid point, but it does not amount to anything in the context of the case as a whole.

10. It is suggested that the judge did not properly consider and direct himself as to the possible reason why the Defendant admittedly lied in his cautioned statement. we fines the judge did adequately consider this ratter and that his conclusions were appropriate.

11. We refuse this application for leave to appeal.

Representation:

Mr. Michael Bulleid, Crown Counsel for the Crown.

Mr. Alexander Kind inst'd by Messrs. Ricky Ma & Co. for the Appellant.