HKSAR v. Gurung Dil Bahadur

CACC 80/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 80 OF 2006

(ON APPEAL FROM DCCC NO. 955 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Yuen JA and Burrell J

Date of Hearing: 1 December 2006

Date of Judgment: 1 December 2006

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J U D G M E N T

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

1.On 17 February 2006, the applicant was convicted of wounding with intent following a trial in the District Court before Deputy Judge Woodcock.  He now seeks leave to appeal against his conviction.

2.The applicant was jointly charged with a co-defendant (D1) on the 1^st charge.  In addition, D1 alone faced a 2^nd charge of possessing an offensive weapon, namely a chopper.  D1 was acquitted on both charges.

3.I granted bail to the applicant (D2 at trial) on 6 July 2006 after the respondent had conceded that there had been a material irregularity which gravely affected the propriety of D2’s conviction.

4.In these proceedings, Mr Saw SC, on the respondent’s behalf, has confirmed that there had been a material irregularity and it is this which makes any general reference to the evidence unnecessary.  It arose from the judge’s Reasons for Verdict where she said:

“33.   I will deal with the 1^st defendant and Charge 1.

34.     There is no witness who identified him as the male with the chopper or as the male who carried a bottle.  No one has identified him as the male who either entered the Fenwick Deck Bar to fetch the chopper …”

The judge, shortly afterwards, continued by saying:

“… There is no evidence connecting him to the wounding except for him holding the chopper after the victim had been chopped, and this was only after the defendants and a third male had left the scene of the wounding.” (Appeal bundle p. 15)

5.Regrettably, both these statements of fact were incorrect.  The prosecution had largely based its case upon evidence of identification.  In a fairly confused scenario leading to an incident between a number of African and Nepalese men, an African (PW4) had witnessed one of the Nepalese group fetching a chopper and using it to strike the victim with it.  PW4 subsequently identified D1 as the culprit when he attended a formal identification parade.  However, at court, when asked to identify the culprit he had picked out on the identification parade, he had pointed to the applicant, the second and only other defendant in the dock.

6.When dealing with the evidence against the applicant in her Reasons for Verdict, the judge said:

“42.   I turn to the 2^nd defendant and the evidence against him.

43.     He was identified in an identification parade by PW2 and PW4.  PW2 says he recognised the 2^nd defendant but was not sure if he held the chopper but was sure he was part of the group of Nepalese males involved in the altercation in the bar.

44.     The fourth prosecution witness identified the 2^nd defendant.  He says he recalls that the male with the chopper had spiky hair and was short.  He pointed out the 2^nd defendant in the parade but told the police he could not vouch the 2^nd defendant was definitely the male holding the chopper but he looked like him.  In court, he pointed out the 2^nd defendant as the male he identified at the identification parade.  He went on to add that now he had seen him in court he was sure he was the one.  That evidence I attach no weight to.  I only pay regard to what he said at the identification parade.

45.     This identification evidence from PW2 and 4 alone would be insufficient to convict the 2^nd defendant as the male with the chopper …”

7.Again, unfortunately the judge had made an error as PW4 had not identified the applicant at any identification parade as the man resembling the person holding the chopper.  The applicant had stood on a separate parade to D1 and when PW4 was asked if he could identify anyone he had failed to pick out the applicant.

8.Curiously, these errors were made despite counsel for the defence having in his speech (appeal bundle pp. 183-184) emphasised PW4’s mistaken identification of D2, the applicant, in court and prosecuting counsel having confirmed that this was so.

9.On the other hand, PW2 had identified the applicant at a formal identification parade as the person he had seen with the chopper.  In evidence at trial, however, PW2 had said (in the passage cited above) that while he recognized the applicant as part of the Nepalese group involved in the altercation, he was not sure if he had held the chopper.

10.The only other matter directly affecting the applicant was evidence to the effect that the person who fetched the chopper had blood on his face.  The applicant not only had an injury to his face but his blood was also found on the blade of the chopper.  Mr Saw accepted, as the judge had done, that these two features of the evidence were not, standing alone, sufficient to establish the applicant’s guilt.

11.However, the judge, when dealing with these additional features of the evidence in the applicant’s case, put them together with her mistaken impression of the evidence concerning identification when concluding:

“51.   This fact of the DNA of the 2^nd defendant and the victim on the blade alone, because of the close proximity of D1 and D2 in a taxi, may not be sufficient to prove beyond reasonable doubt he held the chopper earlier and wounded the victim.  But, when I consider the evidence of this DNA, the identification evidence of the 2^nd defendant, and the evidence of the male with the bloody face being the one who fetched and used the chopper, altogether I am convinced I can draw the irresistible inference that it was the 2^nd defendant who fetched and used the chopper.  The evidence collectively convinces me there is no doubt.  I find he fetched and used the chopper and caused grievous bodily harm on the victim with this chopper.”

12.Mr Saw accepted that the evidence against the applicant was insufficient to enable the judge to conclude that it was the applicant who fetched the chopper and attacked the victim.  In these circumstances, he did not seek to argue that the conviction could be upheld or that this was a proper case in which to consider the application of the proviso.  We agree that the applicant’s conviction cannot stand.

13.Accordingly, leave is granted.  Treating the hearing as the appeal, the appeal is allowed, the conviction is quashed and the sentence imposed for it is set aside.  The application for the costs incurred in these (appeal) proceedings, together with the application for bail, for which Ms Panesar applied was not opposed.  We granted the application.  The costs are to be taxed if not agreed.

Mr D G Saw, SC, DDPP, of the Department of Justice, for the Respondent.

Ms M Panesar, instructed Messrs Jal N Karbhari & Co., for the Applicant.