The Queen v. Wat Tak Fai and Others

IN THE COURT OF APPEAL

Criminal Appeal
No. 337 of 1987

BETWEEN

THE QUEEN

and

WAT Tak-fai

YEUNG Chi-ming

CHAN Wai-yip

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Coram : Hon. Yang, V.-P., Barker & Power JJ. A.

Date of hearing: 20th October, 1987

Date of Judgment: 20^th October, 1987

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JUDGMENT

_____________________

Barker, J.A.

1. WAT Tai-fai and YEUNG Chi-ming seek leave to appeal against their convictions on a charge of wounding with intent. We have had helpful submissions from Mr. Forrest which we have taken very much into account. The wounding took place in a billiard club unfortunately called Catch 22 in Tsim Sha Tsui and evidence was given that the victim was not only assaulted with fists but was severely chapped with the result that he sustained severe injuries to his arm and damage to the ulna nerve and damage to his head resulting in a fracture of the skull. That these injuries were inflicted by somebody is agreed. Mr. Forrest in the course of his persuasive argument has advanced to us a number of reasons why he says that the identification was so unsafe that we ought to have a lurking doubt as to the correctness of the judge’s conviction.

2. The learned judge in his reasons for verdict took these matters into account with one exception which I will deal with in a moment. He pointed out that there were discrepancies in the evidence of the witnesses for the prosecution and he had taken this into his mind when delivering his reasons for verdict. One matter which he did not explicitly mention was the fact that one of the prosecution witnesses (PW2) said that he identified the 1st appellant to the policers one of the assailants while the 1st appellant was sitting inside a taxi. PW4, a police officer corroborated that identification in evidence though he admitted that he failed to record it in his written statement. PW5, another police officer said that someone had merely said. "Ah Sir, we have been assaulted, call an ambulance." And it is right to record that this inconsistency was not adverted to by the judge in his reasons for verdict. But a District Judge in giving his verdict does not have to set out in his reasons everything that has been given in evidence. The judge found as he was entitled to find, in our view, that PW2, the brother of the victim, was an accurate, and reliable witness and he was supported by one of the police officers. In our judgment the learned trial judge approached this case with great care and with complete fairness to the applicants. For example, he ignored totally an identification made at the Magistrates Court when PW2 had been taken specially there for the purpose of identifying the applicants. He said he put that out of his mind and he was right so to do.

3. Complaint was made by Mr Forrest that the judge placed some reliance on the identification evidence of PW1, the victim, because on the crucial issue of identification PW1 having identified D1 said, in cross-examination, "It's possible I'm mistaken." Everything is possible but, in our judgment, the trial judge was right in saying,

"Well, PW2 is sure that D1 was one of the assailants and PW1 thinks he was as well, though admitting that he might be mistaken."

4. So far as YEUNG Chi-ming is concerned he has raised various arguments in his written grounds which do not advance his cause at all. He complains, for example, that when the police searched the taxi and found inside it two knives, one of which was blood-stained, he was not there to watch the search. That may well be true but the trial judge saw and heard the police officers and believed their evidence as he was entitled so to do.

5. Mr. Forrest asks us to say that in view of all his submissions this court ought to entertain a lurking doubt, though I confess I have never understood how a doubt can lurk. In all the circumstances, we see no merit in these applications for leave to appeal against conviction and they are dismissed. We will adjourn then for reports to a date to be fixed in consultation with counsel's diary.

Mr. R. Forrest (Messrs. Alick Au & Massie) for D1.

YEUNG Chi-ming (D2) Applicant in person.

Mr. William Allan (Messrs. J. Fang & Co.) for D3.

Mr. J. Pethes, Crown Counsel for Crown/Respondent.