R. v. Li Chi To

CACC000496/1996

IN THE COURT OF APPEAL

1996, No.496
(Criminal)

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Coram: Hon. Power, Ag. C.J., Liu and Mayo, JJ.A.

Date of hearing: 14 February 1997

Date of judgment: 14 February 1997

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant Li Chi-to was one of three defendants who faced two charges of wounding with intent. It was alleged that on 23rd November 1995 at the Shadow Pub, No.153 Sai Yee Street, Mongkok, he and the other two defendants unlawfully and maliciously wounded Ho Sai-chu (charge 1) and Cheng Kam-tong (charge 2). He pleaded not guilty to both charges but was found guilty after trial in the District Court before Deputy Judge Li.

2. The evidence established that on the evening in question a group of about 10 males entered the pub, some carrying weapons. The persons inside the pub were told not to move and some of the armed males then approached the customers and attacked them injuring four persons who later gave evidence as PW1, PW2, PW3 and PW5. Some of the males also smashed furniture in the pub. After the attack the group left the pub but, as they did so, were sighted by a passing police patrol vehicle which apprehended three of them. Those three were the persons charged.

3. All of the defendants made cautioned statements. We are only concerned with that made by the applicant. In his statement he said that he had nothing to do with the attack, that he had had an appointment to have a drink with his friend, that he had entered the pub and seen people fighting and that he then immediately left. When asked questions by the interviewing officer he elaborated upon this saying :

"Just as I pushed open the door to enter I saw people fighting inside. I then walked out."

He added:

"I only stood at the entrance and saw that people were throwing things around and damaged the things. Regarding what clothing they were wearing I am not sure. Nor do I know how they fought."

4. The judge in his Reasons for Verdict recited the facts leading up to the attack which we have set out above. He also said:

"no positive identification of the three defendants were (sic) made by the victims at the scene or in court save that PW5 was saying these three defendants had been inside his pub, but he could not say what they each had done."

He later said:

"I have no reasonable doubt at all that the men were all acting in concert and were part of a joint enterprise to attack people inside and damage the Shadow Pub. I have no reasonable doubt at all as the men were leaving, four of them were stopped and caught by the sergeant and his officers from car number 2. The evidence satisfied me beyond reasonable doubt that all three defendants were together coming out of the pub and were together with the other men coming out as a group after the attack."

Had the Reasons for Verdict ended there, the difficulties which we now face would not have arisen. However, it did not. The judge then went on to canvass the evidence with greater particularity. He said:

"Another aspect of the evidence was that Cheng Kam-tong, PW2's, testimony did not mention that, when he came out from the pub after the attack, he was able to identify these three defendants and the Pakistani man to be part of the group who had carried out the attack in the pub. He was cross-examined by Miss Liang as to whether he had been taken to any police vehicle to identify the attackers and he said he had not.

PW3, PC 22819, and PW7, PC 9887, their evidence was that, when PW2, CHENG Kam-tong, emerged from the pub, he pointed out the three defendants and a Pakistani male to be some of the attackers who had been in the pub. It was also PW2's evidence that he was injured and dizzy after the attack. I do not think that PW2 and the officers were being untruthful in any way, it was just that PW2 had not mentioned this identification evidence in his testimony in court."

Having identified this discrepancy between the evidence of PW2 and the police officers the judge makes no further reference to it. Did he, when he said that he did not think that the officers were being untruthful, mean that he accepted their evidence and having accepted it, acted upon it as evidence positively identifying the applicant as one of the attackers. He would have been wrong to have done so. The evidence which came from the police officers, as set out above, was clearly not admissible. We are left in a considerable doubt as to the use to which this evidence was put.

5. The judge then went on to detail the evidence of PW5 who was, it seems, the landlord of the pub. He said:

"PW5 Chu Chi-ming's evidence was that one of the attackers was called Ah Tit, who had a quarrel in his pub the night before the attack and he could vaguely remember the three defendants being seen inside his pub during the attack. It was also his evidence that all the men who rushed into the pub had taken part in the attack in his pub, either to order those in the pub not to move, or to attack people, or involved in smashing up the place."

The judge again did no more than recite this evidence. Again he did not indicate what, if any, reliance he placed upon it. This evidence as it stands, was, very arguably, of little weight. If the judge did use it he should have made clear the extent to which he placed reliance upon it.

6. The judge then found :

"....it proved beyond reasonable doubt that this was a planned, concerted attack by the group of attackers involved. It was carried out swiftly, their retreat was equally swift. The group was acting together and D1, 2 and 3 were amongst this group when they left the pub. I am satisfied beyond reasonable doubt that D1 and D2 were not ignorant by-standers or non-participants in this planned attack."

This finding might well have relied upon evidence that was inadmissible and/or upon evidence to which little weight could be properly given. We are for the reasons set out above left with a lurking doubt as to the propriety of the conviction.

7. The application must, therefore, succeed. The hearing of the application will be treated as the hearing of the appeal and the appeal will be allowed.

Representation:

Mr. Derek Pang (Crown Prosecutor) for the Respondent.

Mrs. Penelope Wacks assigned by D.L.A. for the Applicant.