The Queen v. Chan Wing Wa

IN THE COURT OF APPEAL

1986, No. 525
(Criminal)

THE QUEEN

and

CHAN WING-WA

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Coram: Hon. Yang, Silke, JJ.A. & Penlington, J.

Date of hearing: 13th March, 1987

Date of delivery of judgment: 13th March, 1987

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JUDGMENT

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Yang, J.A.:

1. In this application the Applicant seeks leave to appeal against his conviction for an offence of wounding with intent to cause grievous bodily harm under Section 17 of the Offences Against the Person Ordinance, Cap. 212.

2. There are two major grounds which he relies on for this application. The first is a complaint that the trial judge was erroneous in making use of certain statements made by the Applicant to the police which statements were inconsistent with the evidence he gave in Court. There was no question about the Applicant being considered by the prosecution to be a hostile or unfavourable witness, and it was not for the purpose of treating him as such that those statements were made use of. Indeed, it was in anticipation of cross-examination by the defence on those inconsistencies that the Crown thought best to deal with these matters in chief.

3. Without going into detail the inconsistencies between the statements and the evidence we need only say that we do not think, for the purpose of this appeal, it was desirable practice for the judge to have done what he did. In saying so, we do not intend to lay down any general principles. We have not heard full legal arguments on this issue and we are told that it will be difficult to find any authorities on this particular topic. We therefore leave this matter for another occasion.

4. Having said this, however, we are firmly of the view that the use of the inconsistent statements by the judge in the instant case did not affect the outcome of his judgment in any way. We are certain that the evidence before him was sufficient for him to come to the verdict he did. There is certainly no miscarriage of justice resulting from the use he made of those statements.

5. The second main ground is the question of specific intent which is required for an offence under Section 17 of the Offences Against the Person Ordinance. This was the only real issue before the trial judge in view of the fact that in a statement which was not contested the Applicant admitted assaulting the victim. The facts found by the judge were that the victim was assaulted with fists and he was kicked on various parts of the body (such as his abdomen and limbs) by the Applicant. The victim was unable to fight back mainly because he was threatened by the Applicant with a knife being pointed at him although it was never used to harm the victim.

6. The judge in his Reasons for Verdict did not refer to the question of specific intent. We are therefore at a loss as to what consideration he gave to that issue. Apart from a cryptic reference to the attack which he described as "a deliberate attack" there was no hint as to what his view was on the key issue in the whole case, namely specific intent to cause grievous bodily harm.

7. In all the circumstances of the case we do not think that the verdict of guilty of an offence under Section 17 can stand. We would therefore substitute the offence of wounding under Section 19 for that under Section 17. The application for leave to appeal against conviction is treated as a hearing of the appeal proper and the appeal is allowed to the extent indicated.

Christopher Grounds (D.L.A.) for Applicant

A.S. Hodge for Crown/Respondent