HKSAR v. Chan Yee Ming

CACC 427/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 427 OF 2005

(ON APPEAL FROM DCCC NO. 489 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA and Beeson J

Date of Hearing: 25 May 2006

Date of Judgment: 25 May 2006

Date of Reasons for Judgment: 29 May 2006

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REASON  OF   JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background

1.The applicant was convicted on 9 September 2005 on charges of common assault (1^st charge) and wounding with intent (2^nd charge) following a trial in the District Court before Judge Whaley.  The applicant sought leave to appeal against conviction on both charges.  At the conclusion of the proceedings on 25 May 2006, we dismissed the application and we now give our reasons for so doing.

2.The circumstances in which the assaults were said to have taken place were essentially very straightforward.  Lam Kam-hung (PW1) was known to the applicant.  The prosecution alleged that on 19 January 2003, during the early hours of the morning, PW1 was with three other men and a woman (Ah Yan) at a discotheque known as ‘Cyber 8’ when the applicant engaged PW1 in conversation, asking him what he (the applicant) had done wrong.  PW1 asked what he meant and the applicant replied: “Then I must be wrong.”  The applicant stood up and punched PW1 on the side of his head.  The 1^st charge related to this incident.

3.PW1 and the applicant were separated by friends and Ah Yan accompanied PW1 out of the discotheque.  While they were waiting for a taxi outside, PW1 was again attacked by the applicant who on this occasion was in the company of about ten others.  The applicant held a pole and hit PW1 on the head with it.  PW1 was then further assaulted by the others who were with the applicant.  He lost consciousness and he was next aware of being in hospital.

4.An agreed medical report from the Hong Kong Eye Hospital (exhibit P1) set out how PW1’s right eye had been injured.  PW1 underwent two eye operations on 12 February 2003 and 28 February 2003 respectively and these were followed by a further operation on 3 December 2003.  Thereafter, he was given 5 months’ sick leave.  Some residual disability to PW1’s right eye remains.

5.The applicant left Hong Kong on 20 January 2003, taking the Lowu border crossing to the Mainland and it was not until 26 October 2004 that he returned and was arrested.  He denied the offence but refused to answer any further questions.  The applicant did not testify at trial but he called Ng Chun-ping (Ng) as a witness for the defence to describe how he had seen PW1 leave the discotheque in a taxi with Ah Yan without any trouble of any kind taking place.

Grounds of appeal

6.Four grounds of appeal were advanced by Mr Raymond Yu on the applicant’s behalf.  He succinctly described the issues arising on this application as amounting to whether the judge was correct to have:

(i) disregarded PW1’s concealment of the identities of the friends he was with when the alleged offences took place;

(ii) totally accepted and relied on PW1’s evidence;

(iii) totally rejected Ng’s evidence; and

(iv) disregarded the contradiction between the medical report and PW1’s evidence that he received injuries in addition to his eye injury.

7.We shall deal with these points in turn.

(i)     PW1’s failure to identify his friends’ identities

8.The essence of Mr Yu’s first complaint, following a suggestion of the same kind which he made at trial, was that PW1 was anxious not to provide the names of those in whose company he had been at the time of the alleged assaults because to do so would have led to accounts being given by them which contradicted his own version of events.  When asked by Mr Yu about this at trial, PW1 accepted that the identity of the other persons would have been important to the police investigation but he added that “they are on such good terms with the defendant that even [if] they come to give evidence, that may not be true”.  Nowhere in his three witness statements had he identified the others who had been with him at the discotheque but in evidence (given over 2½ years later) he said that he believed he had given the nicknames: ‘Ping Koh’, ‘Ah Yan’, ‘Ah Wo’ and ‘Dan Yuen’ to the police.  Of these, the applicant said that Ping Koh was on very good terms with the applicant.

9.Police Constable Chan Kam-wah, who the prosecution tendered for cross-examination so that he could be questioned about what happened when PW1 made his witness statement on 24 January 2003, testified that PW1 had not revealed any of the names of the other persons with him at the discotheque.  PW1 had stated to the officer that it was “not convenient” to do so.  The judge then enquired whether PW1 had explained what he meant by this expression, to which the officer replied:

“His explanation was some of the male friends he did not know that well, whereas that female he was not sure whether she was willing to have her particulars provided and so that is why it’s not that convenient.” (Appeal bundle p. 65)

10.It is apparent from the judge’s Reasons for Verdict that this was an aspect of the case of which he was well aware because it is set out in some detail.  Whilst the judge did not specifically say that he accepted the police officer’s version that PW1 had repeatedly refused to give details about the identity of the others who had been with him, it is clear that this was not something which caused the judge to be concerned about PW1’s general credibility. 

11.Mr Yu accepted, in advancing this ground, that the people who had been with PW1 at the time of this incident were apparently better known to the applicant than to PW1.  If it was seriously suggested that the truth was being compromised at trial, it would have been open to Mr Yu to call all or any of those other persons who PW1 may well have failed to identify to the police.  Indeed, at trial it is apparent from Mr Yu’s cross-examination that he had received instructions which enabled him to put to PW1 the names of the others.

12.There was no substance in this ground.

(ii)    The judge’s acceptance of PW1’s evidence

13.Mr Yu submitted that the judge had placed too much reliance on PW1’s demeanour when assessing his credibility while at the same time ignoring other aspects of his evidence which revealed inconsistencies.  The first part of this complaint was based upon the judge’s comment that PW1 had given evidence “straightforwardly and well”.  The judge added that he could not detect any suggestion or hint of fabrication or exaggeration in the evidence which PW1 had given against the applicant.  It is not surprising, therefore, that the judge found that PW1’s evidence amounted to a truthful account of the events he had described.

14.However, Mr Yu submitted that these expressions of satisfaction with PW1’s evidence had to be set against a background which had exposed him as a most unsatisfactory witness.  In the sense that PW1 had a bad criminal record, the judge was well aware of this.  In his Reasons for Verdict, the judge said:

“29.   Mr Yu heavily attacked his credibility on various grounds.  PW1 freely conceded, under cross-examination, that he was ‘a kind of undesirable character in the past, an idle good-for-nothing person with a criminal record’.

30.     His previous convictions included failing to comply with a production order which had called upon him to reveal his financial details to the Organised and Serious Crime Unit, 11 convictions for illegal gambling between 1998 and 2002, a conviction for operating a gambling establishment in 1988, two previous convictions for fighting in a public place in 1984 and 1993, and possession of dangerous drugs in 1997.  He admitted that he had had triad associations in the past, but stated that he no longer engaged in anything to do with that work.

31.     After he had been advised of his privilege against self incrimination, he chose not to answer any further questions about his triad associations.  He flatly denied that he had ever sold dangerous drugs or run a loan sharking business, or that he was operating an illegal gambling establishment in January 2003.  However he stated that he did not wish to answer any further questions in regard to those matters.

32.     He testified that following the serious injuries which he sustained on 19 January 2003, he had reflected upon his life and decided that he did not want to lead that kind of lifestyle any longer, after which he began to distance himself from his undesirable associates.”

It is abundantly plain from this passage that the judge was mindful of the various ways in which attempts had been made to undermine PW1’s character in the context of his assessment of PW1’s credibility.

15.Mr Yu also argued that the judge had failed to take into account the fact that PW1 had told the police that the applicant must have attacked him because of a “monetary dispute” added to which PW1 had said that an unnamed friend had given him the applicant’s bank account details and mobile telephone number.  As the defence case had been presented on the footing that PW1 was a loan shark who had lent money to the applicant, and that PW1 was drunk at the time of the incident alleged in this case and had rudely accused the applicant of a failure to repay the money, it was submitted that the judge had not properly understood the evidence because the judge said in his Reasons for Verdict that PW1 had “testified that he had no idea why [the applicant] had attacked him that evening since there were no quarrels or grudges between them”.

16.All that we need to say in this regard is that it is our view that the judge’s summary of the evidence given on this topic accurately reflected what PW1 had been trying to say.  The transcript of PW1’s evidence in cross-examination reads:

“Q.   Now, the police did ask you if you know the reason why you were attacked in this case, do you recall that?

A.     Yes; yes, I was asked.

Q.     You told the police that you thought it must be because the defendant had a monetary dispute…

COURT:     What dispute?

MR YU:     Monetary dispute, money dispute.

Q.      … with one of your friends and inside Cyber 8, the defendant wanted to seek comfort from you, but unfortunately you ignored him.  That is the reason why you were assaulted.  That is your answer to the police’s question, is it correct?

A.      I could not think of the reasons so I was picking up words at random to think about the reason.  But for the actual reason for it, still, up to today, I don’t know.

Q.      Thank you …” (Appeal bundle p. 53)

Later, PW1 went on to say that there was no dispute and there were no feelings of animosity of which he was aware between the applicant and himself.

17.This ground was not made out and, accordingly, it failed.

(iii)   The rejection of Ng’s evidence

18.Ng was the only witness called by the defence.  Mr Yu’s complaint about the judge’s approach in this instance was again that the judge placed too much emphasis on demeanour which, in turn, caused him to reject Ng’s evidence.

19.The root of this complaint arises from the judge’s description of Ng as a “very poor witness indeed”, and the judge continued by saying:

“His demeanour was shifty and nervous and it was abundantly clear to me that he was lying to the court.” (Appeal bundle p. 14)

20.The judge was, of course, fully entitled to have made these observations if that is how he considered Ng had presented himself.  These observations, however, did not stand alone.  Ng’s evidence had been in stark conflict with PW1’s account.  Ng said that he had gone downstairs from the discotheque with PW1 and Ah Yan where he saw them board a taxi and leave.  At no stage, had he seen any assault take place.  The judge went on to refer to Ng’s account of the way he came to learn of an assault on PW1.  Ng said he had bumped into ‘Fat Shanghai’ on 20 January 2003 and was told by him that PW1 had been attacked the previous day and had gone to hospital.  The judge, understandably in our view, commented that:

“… surprisingly, for a man who had seen PW1 leaving the discotheque earlier that morning in a taxi without any assault of any sort having taken place, he did not ask Fat Shanghai where PW1 had been assaulted.

19.     Further surprisingly, Fat Shanghai, who had been with DW1 [Ng] at the discotheque, asked DW1 whether any fighting had occurred when PW1 had gone downstairs, since DW1 had accompanied him downstairs.  It is simply not credible that Fat Shanghai would have asked DW1 such a question, bearing in mind that DW1 had gone back up to the discotheque immediately after PW1 had left, and would obviously have informed them all, then and there, if he had witnessed an assault upon PW1, and PW1 subsequently being taken off to hospital.”

21.Mr Yu called much of the evidence on this aspect of the case “hearsay” although it was first introduced by him in-chief.  This having been done, the prosecutor was at liberty to cross-examine Ng on his account.  However, in this regard, Mr Yu asserted that the judge had applied a “double standard” because, whilst the judge was prepared to find that it was “simply not credible” that ‘Fat Shanghai’ would have asked Ng the question about whether any fighting had occurred when Ng left the discotheque, he had disregarded PW1’s purported failure to ask Ah Yan any questions about what had happened after he lost consciousness.  We are bound to say that we do not consider this to have been a matter of any real consequence and we are not surprised to find that the judge did not consider this to have been worthy of mention.  Perhaps more importantly, as the judge did note, Ng was first approached as a potential witness for the defence in May 2005, some 2 years and 3 months after the alleged wounding.

22.There was no substance to this ground.

(iv)    PW1’s account contradicted by the medical report

23.Mr Yu made the perfectly valid point in his last submission that the medical report on PW1’s condition provided no support for PW1’s allegation that, after he had been struck on the head with the pole wielded by the applicant, this was immediately followed by further assaults by others who were with the applicant at that time.  PW1 had, amongst other things, described his hand as being swollen and there were, he said, areas of bruising on his head.  He said that eventually he fell to the ground and lost consciousness.

24.On any view, the eye injuries were the most serious.  We do not know why, if PW1 received other injuries besides these, they went unmentioned in any medical report before the court.  The answer probably, at least to some extent, lies in the fact that the report comes from the Hong Kong Eye Hospital.  There was plainly no evidence before the court of any other physical injuries and Ms Lai, for the respondent, has very properly confirmed that no medical evidence exists to confirm PW1’s account of other injuries.  It was plainly not a matter which the judge found of any consequence as he made no mention of this in his Reasons for Verdict which covered almost all aspects of the case in detail.  We notice also that Mr Yu seems to have attached little importance to this aspect of the case as, at the time of cross-examining PW1, he asked no questions on the subject.  We are satisfied that this was not a material omission.

Conclusion

25.For the reasons we have given, the application was dismissed.

Ms Louisa Lai, SGC, of the Department of Justice, for the Respondent.

Mr Raymond Yu, instructed by Messrs Wong & Co., for the Applicant.