IN THE COURT OF APPEAL

CACC000512/1985

BETWEEN

Coram: Hon. Li, V. -P., Yang, J. A. & Macdougall, J.

Date of Hearing: 29 May 1986

Date of Judgment: 29 May 1986

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JUDGMENT

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Li, V. -P.:

1. The applicant was originally charged with three offences. The first was that of causing grievous bodily harm with intent. The second was alternative to the first: causing grievous bodily harm by wanton or furious driving whilst having the charge of a vehicle. The third was reckless driving.

2. In the event he was convicted on the first and third charges. He now applies for leave to appeal against conviction in respect of those two charges. At the commencement of the hearing to-day he abandoned his application in respect of the third charge. Accordingly that application was dismissed. We are therefore concerned only with the first charge.

3. The facts may be summarised as follows. On 27th April last year at approximately 10:00 p.m. a Mr. Lan was walking in the car park of the City Garden Restaurant with a group of his relatives on their way to their two vehicles which were parked there. The party included young children. The applicant at that moment was driving his own vehicle into the car park looking for a parking space. At the invitation of the driver in the car in front of him the applicant overtook that vehicle at the entrance and in doing so nearly ran into Mr. Lan and his group. The group went over to remonstrate with the applicant who by this time had parked his car and had alighted. There was a heated argument during which the applicant threatened to run Mr. Lan down. Mr. Lan responded by daring him to do so.

4. The applicant's friends tried to pacify both parties but without success. Mr. Lan and his group then walked away from the scene of the quarrel and the applicant returned to his car, started the engine and, in defiance of direction signs, drove against the flow of traffic towards the members of the rival group as they were making their way out of the car park.

5. Just before reaching the group the applicant stopped his vehicle and reversed it into a parked car. He then drove forward towards the victim and pinned him to the bumper of another car thereby breaking his leg. Fortunately, the victim had been able to push two of the young children accompanying him out of the path of danger before he himself was struck by the applicant's vehicle.

6. After hitting the victim, the applicant reversed and came into collision with yet another vehicle. He then drove forward to where the victim lay, alighted from his car and looked at him without saying anything.

7. As a result of the injury the victim was hospitalised until the 14th May. At the time of trial the victim still required physiotherapy treatment and eras walking with the aid of a stick.

8. The defence evidence was that the applicant having failed in a business transaction on that evening felt let down by a business friend and was in very bad mood. He had consumed a larger than usual quantity of brandy and was therefore feeling a little dizzy. He confirmed that there had been a vehicle in front of him when he entered the car park, that the driver in that car had signalled him to overtake and that he had done so. He then passed the members of the rival group as they were making their way along the driveway and although his car did not hit any of them he noticed that they gesticulated at him.

9. He confirmed that as soon as he had parked his car in a parking space the group approached and scolded him and that there was a heated quarrel.  He did riot deny that he had uttered the threat but claimed that at that juncture one of his companions advised him to drive out of the parking space and to return to it after the rival group had departed. He accepted this advice. However, while he was driving away, the rival group continued to remonstrate with his companion so he stopped his car to reason with them. Unfortunately, in so doing, he brought his car to a halt at an angle and when he proceeded to move off after having spoken to them he accidentally shifted his automatic gear into reverse. The combination of these two factors caused him to collide with a car parked at the rear of his car. He then drove forward and accidentally struck the victim. Someone then placed a hand on his wind screen in front of him. In an attempt to escape from this obstruction to his vision he again reversed his car and accidentally collided with another vehicle. He claimed that he had not intended to hit the victim, that it had been entirely accidental and that at all times he had been intending to drive away from the rival group.

10. In his reason for verdict the judge noted the difference between reckless driving and driving with intent to cause grievous bodily harm. He found that before the applicant could be convicted on the first charge the evidence must go beyond recklessness and show a specific intent. He relied on the evidence of two independent witnesses who observed the entire course of the applicant's conduct and came to the conclusion that the applicant had had the intent to cause grievous bodily harm.

11. The applicant puts forward two grounds of appeal. First, counsel contended that the judge was inconsistent in convicting the applicant on the first charge as well as the third charge. Counsel asked this Court to view the whole series of acts by the applicant as being one course of action and submitted that since recklessness required no intent, the finding of intention to cause grievous bodily harm was inconsistent with the mens rea required for recklessness. The judge said (at p. 6) as follows: -

"As to the individual charges I think I have said enough to indicate that I find the defendant guilty beyond a reasonable doubt on both the first and second charges. I don't think that recklessness is seriously disputed in connection with the 3rd charge. In any event whilst I have found that the defendant's state of mind in effect went beyond mere carelessness it is clear also that he was reckless in his manner of driving in the sense that he recognized the risks involved in what he was doing, which indeed were obvious and serious, and yet nevertheless went ahead and took those risks, entirely heedless of the consequences which might result. So I find him guilty on this charge as well."

12. Counsel submitted that the conviction on the charge of causing grievous bodily harm with intent was inconsistent with the conviction on the charge of reckless driving. In this connection, we need only observe that there were quite separate and distinct acts on the part of the applicant. The short answer to the submission is that the two convictions were founded on two different acts relating to different points of time in the car park. The judge, when he gave his reason for verdict in respect of the 3rd charge, had already disposed of the first charge on which he had found the applicant guilty.

13. On the evidence it was open to him to find that when the applicant drove his car directly at the victim he intended to cause injury. Moreover, the manner in which the applicant had come into collision with other vehicles was evidence of recklessness. There was no inconsistency in the judge's findings. In our view the first ground must fail.

14. The second ground was that the judge had prejudged the case because in rejecting a submission of no case to answer to the first charge, the trial judge had stated:-

"In my view this act was a deliberate act by the defendant to maliciously cause grievous bodily harm to the victim.

Counsel submits that by those words the judge had indicated that he had or might have reached a conclusion as to the defendant's intention before hearing his evidence.

15. Two cases were cited in support of that argument. The first was the Attorney General v Yau Ka-ping ⁽¹⁾. We do not think that case helps us. The other is The Queen v Wong Man-yuen ⁽²⁾. This was a case in which the judge had expressed his approval during the course of the trial of the evidence of prosecution witnesses by observing that they were truthful. The Court of Appeal had this to say: -

"The issue was whether the police or the applicant was truthful. In view of the affidavit evidence, both prosecuting counsel and defence counsel said the judge did commend the constables forgiving excellent evidence. Indeed prosecuting counsel went even further by saying that after the Crown closed his case against the defendant which was before the defence evidence was heard the judge made the remark that the prosecution witnesses were truthful, impressive and honest. The judge did not distinctly refute these allegations. He merely said that he had no recollection of any of these comments whatsoever. There is a real possibility that the judge may have expressed his impression at the close of the prosecution case.

        It was on this basis he said later that many a time in the course of proceedings judges, hearing prosecuting evidence might feel that a certain witness was impressive and honest. But it would be a different matter were he to conclude that he was truthful. He should have kept an open mind before all the evidence had been heard. It would be unwise for any judge to form a confirmed opinion that a witness was truthful until all the evidence had been heard.  We come to this conclusion there was a distinct possibility that there had not been a fair trial."

16. The facts in that case were quite different from those in the present. There the police alleged they had found drugs on the appellant. The appellant's case was that the drugs had been planted by the police. Thus there was a serious dispute on the evidence. Even before he had heard the defence evidence, the judge expressed an opinion that the prosecution witnesses were truthful, thereby indicating his acceptance of the evidence of the prosecution witnesses, before having heard the defence. In the present case the prosecution evidence had been barely challenged. The only question was whether from the applicant's acts the judge might infer the requisite intention.

17. In Lai Chuk-ting and others v The Queen⁽³⁾ there were three accused persons charged. The judge, having heard the prosecution evidence, prepared his judgment. After hearing counsel for the 1st accused, but before hearing counsel for the other two accused, he began writing his judgment and delivered it immediately after counsel for the other two accused had addressed the Court. The appellant's contention was that in those circumstances the judge had prejudged the issue.

18. The present case is quite different. Here there was overwhelming evidence of the applicant's conduct. The submission of no case to answer was in our view without merit.

19. In his submission of no case to answer, defence counsel, who is not counsel on this appeal, said this:

"This is a matter of specific intent. There is no evidence of that intent. The evidence insofar as Crown relies on the verbals of the defendant's intention. It does not go far enough."

20. The judge, in ruling that there was a case to answer, could have used happier words than this act was a deliberate act'. He could have said the act was "capable of indicating a deliberate intention". But the judge was there dealing with defence counsel's submission that the Crown had relied only on the defendant's words to establish an intent. In fact the Crown had relied on a great deal more. There was evidence that the applicant had driven against the traffic sign in the car park, and that he had driven his car directly at the victim. This was evidence from which a court could properly infer an intent to cause grievous bodily harm.

21. In Prasad and Another v Comptroller of Customs, which is only reported in (1962) 106 Solicitors' Journal 628, word Pearce had this to say:

"A man, however guilty, was entitled to a trial before he was convicted. It must always be a question of degree how far judicial bias or hostility converted a trial into that which was no trial. Their lordships appreciated that a judge sitting without a jury might without impropriety give vent to interim expressions of opinion which it would be gravely improper to express in a trial by jury. Nevertheless, in this case the magistrate's hostility to the appellants before they had opened their case was so immoderate and apparent that there was no semblance of a fair trial."  (Emphasis supplied)

22. We do not think that the judge's phraseology was indicative of his final conclusion. It is plain from what he said in his judgment that he had considered the applicant's evidence before deciding to convict him. The second ground must also fail.

23. For these reasons the application for leave to appeal against conviction in respect of the first charge must also be dismissed.

(1)    [1977] HKLR 76

(2)    [1985] Cr. App. No. 301

(3)    [1978] HKLR 402

Representation:

Mr. D. Keane and Mr. P. Nguyen (K. Y. Woo & Co.) for Appellant

Mr. McCoy & Mr. P. Wong (Crown Prosecutor) for Respondent