HKSAR v. Wong Ka Wai

CACC000521/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.521
(Criminal)

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Coram: Power, V.-P., Leong and Stuart-Moore, JJ.A.

Date of Hearing: 26 August 1998

Date of Judgment: 26 August 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 24th July 1997, following a trial in the District Court before Judge Line, the Applicant (D4) was convicted with five others of possessing an offensive weapon (charge 1) for which he was sentenced on 11th August 1997 to imprisonment for one day, and conspiracy to wound (charge 5) for which he was ordered to be detained in a training centre. He was then aged approximately 19 1/2.

2. As a result of what the Applicant claims to have been a misunderstanding, notices of appeal as to conviction and sentence were entered late. Having read his affirmation about which we have indicated our considerable scepticism, but having also heard the submissions at length advanced by Mr. Jeykyn-Jones, we can indicate our readiness to grant leave to hear this application out of time.

3. The essence of the prosecution's case, as the judge expressed it, was that the defendants met together:

"at an amusement game centre in Portland Street in joint possession of two beef knives or machetes (one found on D1 and the other hidden behind a games machine) and that they had gathered together there with the intention of attacking the other side to settlement talks, which were being conducted a few streets away, should the course of the talks require it. They say that all the defendants knew the group was to be armed with knives and that they had a joint intention to see the matter through, contemplating and agreeing to the use of the knives and the chopping or wounding of the other side."

4. D4 and D5 were acquitted of the second offensive weapon as there was no evidence of their knowledge of its existence, but continuing with what the judge had to say of the prosecution's case, he went on:

"The defence cases can be summarised by saying that they were all there innocently to play games; that the knives were nothing to do with them; that they made no admissions.

The prosecution relied upon oral admissions made at the scene, post records of those admissions signed by the defendants and admissions in further interviews. The admissibility of the written records was in issue in each case. In each case the defendants denied making oral admissions at the scene."

5. There are a number of grounds of appeal and, taking the first of these, it is submitted that the judge erred in admitting to the two documentary exhibits (8 and 19) which allegedly contained admissions made by the Applicant. Firstly, it is submitted that the judge failed to consider the circumstances surrounding the creation of each exhibit separately. We can say straightaway that this point is without substance. Both the statements were said to have been made without co-operation from the Applicant. It was his case that the statements were signed as the result of assaults upon him and intimidation. Neither of these separate allegations made by the Applicant were accepted by the judge as having any truth to them. The evidence of the police, on the other hand, was accepted.

6. Secondly, it is submitted that the judge erred by reaching a general finding in relation to both exhibits which was influenced by the evidence in relation to other defendants and not relevant to his deliberations affecting this Applicant (D4). In this respect, it is clear at page 12 of the appeal bundle, in his Reasons for Verdict, that the judge did give separate consideration to each of the defendants in the trial and he said so in terms.

7. At a later stage in the Reasons, at page 17, he went on to say again:

"I do stress that I have looked at each case individually, keeping a firm eye on what each individual said and what evidence was admissible against him."

8. It is quite clear that the judge looked at each case separately.

9. The third point raised is that the judge was wrong to have dismissed the Applicant's evidence without "adequate or sustainable" reasons and in any event contrary to the weight of the evidence. Further, despite claiming that there were numerous examples to justify his rejection of the Applicant's evidence, he failed to cite any, and scrutiny of the transcript fails also to reveal any.

10. The judge, at page 12 of the bundle in his Reasons for Verdict, said this:

"I wish to stress that the police have no special status in court. They start equal with all the other witnesses, including the defendants. How the witnesses end up is, of course, a very different matter for they have their evidence tested by cross-examination. It was the fact that no police officer was significantly damaged by cross-examination. It was also the case that no defendant survived it without real and lasting injury. The cross-examination on behalf of the prosecution dealt with the realities of the situation. ........ Mr. Fitzpatrick confronted their claims to beatings, but lack of significant injuries; their claimed feelings of injustice and outrage but lack of complaint; their wish for succour and their failure to enlist help on their home visits to their families. No defendant withstood that attack. The credibility of each was destroyed."

11. When dealing specifically with the Applicant, the judge continued:

"apparently he lacked sufficient curiosity to look in a mirror to see the injury that the police did to his back; he claimed to have been incapacitated for a week."

12. Added to this, the judge had rightly pointed out that the Court of Appeal had long ago indicated that no reasons should or need be given for a decision on the admissibility of interviews and statements under caution. But, having realized that the interviews with the Applicant did play a significant part in the case, he nevertheless decided to say "enough so that the defendants can understand why the decision on admissibility went against them".

13. Having provided therefore some reasons which he did not need to give, the Applicant's counsel is now complaining that these reasons were not adequate. We cannot agree and we must reject that submission.

14. Fourthly, Mr. Jenkyn-Jones submits that the judge incorrectly dealt with medical evidence by assisting in the cross-examination in a way that suggested that he had pre-determined the issue and, coincidentally thereby reversed the burden of proof. Also, it is submitted, the judge allowed medical evidence from the same doctor in relation to D5, wrongly to influence him with regard to the Applicant's case.

15. On the first of those points, Mr. Jenkyn-Jones now concedes that he has put the matter too strongly. It is quite clear that the judge did ask a number of questions to clarify what the doctor was saying, but these were sensible and proper questions to have asked in the context.

16. On the second point which is raised, the judge had this to say at page 13 in the bundle:

"A doctor was called on behalf of D4 and D5. They both went to the Queen Elizabeth Hospital on the day they were bailed. D4 was found to have an old bluish bruise mark of 1-2 cms on his upper back. D5 was found to have three small scratches on his chest. This evidence did them more harm than good as the doctor confirmed what common sense tells us: these were minor injuries consistent with the usages of everyday life and which were not of a kind that would cause pain two days or so later sufficient to drive fit young men to hospital for treatment, as was claimed, and that the assaults they described (even allowing for innocent exaggeration) would inevitably leave marks on their bodies which would have been visible at the time of their examinations."

17. Later, at page 15, when dealing with the Applicant's evidence, the judge not surprisingly used the medical evidence to some extent to assess the Applicant's credibility. He said:

"the doctor's evidence completely undermined his assertions of real pain being felt two days after the bruise was caused, and of his being incapacitated for a week. He claimed that, despite having spoken to a policeman at the hospital before he saw the doctor, it had not occurred to him to complain about his treatment at the hands of the police. D4 was not telling me the truth. I did not trust his evidence at all."

18. Then Mr. Jenkyn-Jones goes on to suggest that the judge was wrong in failing to separate and to consider the medical evidence in respect of each of the exhibits, a notebook and the interview. Finally in this context, he argues that the judge reached an unjustified conclusion on the actual evidence by mistaking speculative questions and answers as factual answers relevant to the Applicant's case. There is no foundation for either of those assertions. In particular the judge was at pains from time to time during the cross-examination to ensure that questions were stopped where they had not been properly phrased by the prosecutor, and examples of those are to be found, without needing to go to the exact passages, in the bundle at pages 118 and 119.

19. Turning now to a completely different ground, the last in the application so far as conviction is concerned. It is submitted that, having wrongly admitted exhibits 8 and 19 into evidence, the trial judge erred in finding that their contents constituted the offences charged both in fact and in law. What the judge had to say was this, at page 16 in the bundle:

"Charge One relates to the finding of the beef knife exhibit 1 on D1. I believed PW1 when he told me that was where it was. There has been no issue but that the games centre was a public place and the beef knife is obviously an offensive weapon. D1 is guilty on the basis of direct control. The others stand convicted on the basis that they were parties to a joint enterprise which they knew involved the use of this knife. D2-D7 all admitted knowledge of the knife and all admitted sufficient of a joint enterprise to demonstrate that the knife played its part in their criminal design. The possession of this offensive weapon was part and parcel of the confederacy.

This is not the place for academic debate as to whether an allegation that a person took part in a crime as a joint enterprise is not the same as an allegation that he aided, abetted counselled or procured the crime. For the avoidance of any doubt I record my finding that the admissions of D2-D7 (showing knowledge of the knife) proved against each of them for sure that they aided and abetted the possession of the offensive weapon. This was so as joining the group at the games centre, with the intention of fighting when called upon, clearly encouraged and lent aid to the possessor of the weapon. Put another way those in the group were mutually supportive of each other and that support extended to the member who was armed with the knife."

20. Later, the judge went on to say at page 18:

"I now turn to the conspiracy in charge five. The prosecution acknowledge that their case here depends on a conditional intention as the substance of the admissions in each case is that each defendant was there to fight the other side of the settlement talks should the need arise. I am quite sure that such an agreement is a criminal one. It falls clearly on the same side of the line as those agreements to bomb in the event of the peace process failing or to aid and abet suicides depending on the assessment of each individual's circumstances. Smith and Hogan draw a distinction between cases where the agreement in question embodies "the object of the exercise" and where it is merely incidental to some other objective. The agreement in this case falls firmly within the former description in my judgment. That such agreements should be proscribed by the criminal law is self evident. The mischief flowing from agreements in such circumstances as existed here are notorious in the criminal law of Hong Kong.

I was thus sure that each defendant was a party to the agreement to fight the other side of a failed settlement talk. I was sure that this amounted to an agreement that a course of conduct would be pursued which, if carried out in accordance with their intentions, would necessarily involve the commission of the offence of wounding. Such fighting would be unlawful. Such fighting, especially with a beef knife carried, was bound to result in the break of the continuity of the skin of someone on the other side and it was clearly part of the plan confessed to by each individual that a knife, a cutting weapon, would be used against the other side if required."

The judge then went on to deal with a further aspect which had been argued in the case as to whether it was one conspiracy or more than one and found that it was clearly one agreement between all of the people involved. The judge had given a careful and detailed consideration to the facts in the case, and he correctly summarized the law. There is no substance to the argument that the judge erred in finding that the charges were established.

21. Finally, Mr. Jenkyn-Jones submits that in convicting D4 on the basis of the exhibits 8 and 19, the judge must have been wrongly influenced by the contents of other defendants' statements. It seems that counsel at this stage himself engaged in what he was at one stage in his submissions suggesting the trial judge had done, namely by entering into the realms of speculation. There is nothing in this point. It is perfectly clear that the judge did look carefully at the evidence contained in the statements of this Applicant when deciding that it had been proved that he was party to the conspiracy and, specifically, the judge did say, at p.17 of the bundle:

"I have not identified the relevant admissions made by each defendant as to his knowledge of the knife or what he said about what was going on. Much of this ground was covered in the course of counsel's submissions and it is not necessary to set the matters out in these Reasons for Verdict."

22. He went on then to deal with the passage I have already quoted where he made it clear that he had look individually at the separate cases.

23. So far, therefore, as the applications are concerned with conviction, we find no merit in the arguments and the application is dismissed.

24. Turning briefly now to the question of sentence. It is right that the Applicant would have been a candidate who could have been considered for detention centre if it had not been for a sentence of one day's imprisonment in respect of the non-payment of a fine which technically barred a detention centre order being made. However, it is quite clear that the judge never considered that a detention centre order would have been appropriate and he made that plain in his sentencing remarks. He considered that a training centre order for an offence of the gravity of this conspiracy was appropriate. Mr. Jenkyn-Jones submits that, as a person who is found guilty of carrying an offensive weapon cannot be sent to a training centre, it was therefore inappropriate for this Applicant to be sent to such an institution when the conspiracy really depended to a very large extent upon that offensive weapon. He suggests that it would have been proper in the circumstances for the judge to have sentenced the Applicant to a period of imprisonment which approximates either a detention centre order or a training centre period.

25. The judge in his sentencing remarks said this:

"One of the hallmarks of Hong Kong crime is the ability of criminals to call upon the services of armed young men who are prepared to fight for them yet who have no personal grudge against the intended victims. The beef knife is one of their favoured weapons.

The facts of this case show these defendants to be such a group. They were not actually called upon to fight but they had agreed to do so. The mischief of armed gang attacks is self-evident and needs no further elaboration. The courts are too familiar with the results that can follow the wielding of a beef knife."

"D1, D4 and D6 are all under twenty one. All are suitable for detention in a Training Centre. None are suitable for detention in a Detention Centre.

The gravity of the conspiracy amply justifies a sentence of Training Centre. The backgrounds of each of these young men also render them suitable for such a disposal. It is inevitable that I make that order in each case.

The reason why D4 was held to be unsuitable ...."

26. At this point I can say that Mr. Jenkyn-Jones says that a better word perhaps might have been 'ineligible' but 'unsuitable' was the word that the judge used.

".... for Detention Centre was technical (he had served one day's imprisonment in default of a fine). If I had thought that Detention Centre was the right sentence I would look hard at the construction of the relevant statutory provisions. Despite the attractive advocacy of Mr. Kynoch, I have no doubt that Training Centre is the right sentence for D4."

27. We entirely agree with the trial judge and this application is therefore dismissed.

Representation:

Miss Anna Y.K. Lai, S.G.C. for D.P.P./Respondent

Mr. Toby R.W. Jenkyn-Jones instructed by Messrs. Ivan Tang & Co. for Applicant.