HKSAR v. Chong Yuet Keung, Tommy

CACC 484/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 484 OF 2005

(ON APPEAL FROM HCCC NO. 62 AND 63 of 2005)

____________________

BETWEEN

____________________

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

Date of Hearing: 14 June 2006

Date of Judgment: 14 June 2006

______________________

J U D G M E N T

______________________

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

Background

1.On 3 November 2005, the applicant, aged 36, was convicted by a jury of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, following a trial before Lunn J.  The applicant was sentenced on the following day to 6 years’ imprisonment and he now seeks leave to appeal against conviction and sentence.

2.This case had a somewhat unusual background.  The applicant was jointly charged with two others, Chan Hing-yip and Wong Ka-kin but, at the committal stage, he pleaded guilty and admitted the Summary of Facts.  However, when Lunn J realised that the mitigation which was advanced by his counsel was in conflict with an admission of guilt, the judge permitted the applicant to reverse his plea.

3.The applicant’s case was then listed with his two co-defendants for trial on 26 October 2005.  The proceedings commenced with a voire dire to determine the admissibility of the video-recorded interviews of each of the defendants.  These were all eventually ruled to be admissible.  The applicant’s co-defendants then pleaded guilty leaving only the applicant to be tried.

The application on conviction

4.The applicant, who is legally aided because of his relatively limited mental capabilities, is represented in these proceedings by Mr Giles Surman who did not appear in the court below.  However, perfectly properly, Mr Surman has indicated that he is not able to advance any grounds of appeal either as to conviction or sentence.

5.The applicant’s homemade grounds of appeal make the complaint in relation to conviction that the judge erred in admitting his video-recorded interview and in regard to sentence that this should be reduced because he has the intellectual ability of a “child aged between 9 and 11”.  In court today, the applicant has again suggested that his sentence is too long.

6.The facts can be shortly described.  On 25 October 2003, a security guard discovered an injured man lying on the ground following a noisy disturbance outside the building where he was employed.  Police duly arrived where they found the victim, Chan Kin-ming, unconscious.  Emergency brain surgery had to be performed at Princess Margaret Hospital.  The victim was not discharged from hospital until 2 February 2004, by which time he was still suffering from serious side-effects arising from the attack upon him.  On 17 January 2005, he underwent a further operation.

7.Just over two months after the attack, on 25 December 2003, the applicant surrendered himself at Lantau Police Station saying that the police were looking for him in regard to a wounding case where he had been “at the scene”.  He was then interviewed and, amongst other things, he admitted striking the first blow to the victim by kicking him once in the area of his chest/abdomen.  After that, other men ran towards the victim to strike him until he fell to the ground.

8.The prosecution’s case was that this was a joint attack on the victim by a group of men which included the applicant.  In summing up, the judge said:

“You are asked to note the defendant’s admission that he had come from the old pier in Tung Chung where he was having a barbecue and that he did so on the instructions of Wong Chun-ching.  He did so with a group of other men with whom he had been enjoying that barbecue, some of whom he identified as having taken part in the assault on the victim.  Of the other men, he said that they were followers of Wong Chun-ching whom he knows to be a ‘Big Brother’ of the 14K Triad Society.  He organised the collection of ‘tor tei’ from the hawker stalls near the bus stop nearby to Ping Yat House; that is, protection money.

Finally, the prosecution ask you to note the defendant’s admission that after the attack had ended he had gone back to the site of the barbecue with the other men.” (Appeal bundle p. 13)

9.We have been provided with transcripts which set out a number of applications which were made to the judge to have the applicant’s interview ruled inadmissible or, by way of alternative, simply regarded as worthless.  These applications all failed.  The first such application, made pursuant to section 16(1)(b) of the Criminal Procedure Ordinance, Cap. 221, was to the effect that even if the applicant’s answers were accepted as being true, they did not amount to a confession to wounding with intent.  The second application, to which we have already referred, was an attack on the voluntariness of the confession in the voire dire.  The third application came at the close of the prosecution’s case when defence counsel invited the judge to revisit his earlier ruling at the conclusion of the voire dire.  Lastly, counsel made a no case submission.  All of the issues underlying these applications were dealt with in full by the judge when he summed up.

10.The applicant did not give evidence.  The defence case was that no weight could be placed on the applicant’s admissions in his interview and that the police had taken advantage of his vulnerability by failing to have an independent adult present when he was being questioned.  The officer who had conducted the interview stated that he had not realised at that time that the applicant was mentally handicapped.

11.The jury heard evidence, called by the defence, given by Dr Anita Leung and Miss Wong Kit-ching, both experts in psychology, about which the jury was reminded in the summing up.  Dr Leung had set out the applicant’s intellectual capabilities and she described him as a “mild grade mental defective with a verbal IQ of 64, a performance IQ of 69, and a full scale IQ of 66”.  The jury was told that it was for them to decide whether they accepted the findings or the opinions expressed by the experts.  The judge recounted all the concerns which had been raised in evidence giving rise to the need for caution before the applicant’s answers in his interview were accepted.  As the judge also pointed out, the jury could observe for themselves how the applicant had responded to questions asked by the police.

12.The judge gave model directions on joint enterprise to the jury and also directed the jury on common assault as an alternative which they could consider.  We are satisfied that in every respect the judge’s summing up dealt with the law and the facts in a way which provided the applicant with a trial of the utmost fairness.

13.The application for leave to appeal against conviction is dismissed.

Sentence

14.The judge took a starting point of 7 years’ imprisonment.  In doing so, he bore in mind the dreadful injuries to the victim which had left him with permanent disability and disfigurement.  He also took into account that no weapons had been used in the attack.  The violence was confined to punches and kicks.  The judge then reduced the applicant’s starting point by a year saying:

“In respect of the 2^nd defendant, in my judgment, it is right that his relatively limited mental capability is to be reflected in the sentence to be imposed upon him.  His incapacity is not such that he has attended special schools or that he has been given special training.  Indeed, although apparently you are unemployed now and have been for some years, you have worked in the ordinary job market doing a number of jobs including security guard.

Also, I give you credit for having surrendered to the police after you came to know that they were looking for you for this offence.” (Appeal bundle p. 178)

15.It is plain that the judge took into account everything which was material to the applicant’s mitigation set against the background of an extremely grave gang attack on a defenceless victim.  In our opinion, having regard to all the circumstances, the sentence imposed by the judge was appropriate.

16.Accordingly, this application is dismissed.

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

Mr Giles Surman, instructed by Messrs Raymond Chan, Kenneth Yuen and Co., assigned by Director of Legal Aid, for the Applicant.