HKSAR v. Chan Fun Cheung

CACC000060/2000

CACC 60/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 60 OF 2000

(ON APPEAL FROM DCCC 1031/1999)

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Coram: Hon Stuart-Moore VP, Wong JA and Seagroatt J in Court

Date of Hearing: 29 June 2001

Date of Judgment: 29 June 2001

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J U D G M E N T

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Hon Seagroatt J: (delivering the judgment of the Court)

1.This Applicant was convicted of wounding with intent after trial in the District Court before Judge Chua concluding on 1 February last year. As a consequence of that conviction, a sentence of some 3 years 10 months' imprisonment was imposed.

2.The background can be very shortly stated even though it seemed to occupy an inordinate period of time and evidence in the District Court.

3.The Applicant and the victim had run a mahjong den together at some stage. She had also been his girlfriend. At some stage they separated and she paid a parting fee. She went to Thailand, apparently was unable to obtain employment there and returned to Hong Kong in June 1998. Contact was made with the Applicant and he asked her to work in a gambling den in Kowloon. She did so with him and with others. At some stage it appeared she also established another gambling den with her new boyfriend, but in March 1999 she left the gambling business that seemed to have been re-established with the Defendant and pursued her own with the boyfriend.

4.On 9 March 1999, the Applicant and two other men decided to go to the premises to seek her out. She was at that stage with a female friend who was dragged out of the premises by the two males. At some stage the Applicant grabbed hold of the victim's handbag and ordered her to go with him. She declined. He smacked her face and the prosecution case was that an assault then continued along these lines: that he kicked her in the chest and she fell to the floor, that he hit her on the head with a cordless telephone several times; that he picked up a stool or chair - it may not matter precisely how it was described - and hit her on the chest with it. He grabbed her by the hair and pulled her up. He had a knife about 9 to 10 inches in length. Fearful, she grabbed the blade to prevent him using it. He pulled it and four of her fingers were cut. He also cut the top of her head with it. Then he asked her companion to take her to a private doctor and told the victim to see him afterwards. He left. She called the police.

5.She was taken to the Queen Elizabeth Hospital. There she was examined and a number of injuries were identified. They are recorded in the form of a medical report which was before the court as an agreed report. They were these: a chop wound over the right hand involving four fingers; a 4 cm long laceration over the vertex, that is of the scalp near the crown. There was a haematoma, that is a swelling with a concentration of blood, over the right forehead and near the mastoid process. There were abrasions at her back, between the scapula and over her right buttock. There was erythema and swelling over the sternum, that is the front and lower part of the chest; mild swelling and tenderness over the lower right quadrant that is the lower right quarter of the torso, and there was deformity over the right wrist.

6.When the Applicant was interviewed, he made a statement. In that he said that she took a knife and he used the telephone to ward off the knife. The knife was dropped. He picked it up, and cut her head unintentionally in the confusion. And on his way home he got rid of the knife and his blood-stained clothing. He did not give evidence but called three witnesses, one of whom gave evidence to the effect that she had seen knives in the premises on an earlier occasion and expected them to be there.

7.The learned judge accepted the victim's evidence as being truthful. The learned judge had considered the relevant contents of the Applicant's written statement which she had incorporated in her findings.

8.Mr Richard Wong on behalf of the Applicant argues principally that because the learned judge was in error, as indeed she was, in stating that the Applicant had struck the victim on the head a few times with the knife, that this affected her findings and therefore vitiated her finding of guilt.

9.It is not necessary to repeat the catalogue of injuries that this unfortunate woman suffered. Those injuries are entirely consistent with the complainant's - or victim's - evidence which the learned judge found honest.

10.The head laceration which formed the basis of Mr Wong's application for leave to adduce further medical evidence which he had made earlier at this hearing and which we rejected, was never challenged at trial, as having been caused by the knife held by the Applicant, although the circumstances were of course challenged.

11.In the light of all these matters there is no substance in this point. All the injuries were clearly open to the conclusion that there was intent. Indeed it is impossible, in our view, to have come to any sensible alternative view.

12.Mr Wong also challenges the judge's conclusion that the Applicant brought the knife with him by suggesting that there may have been a knife on the premises and that she should not have come to that view.

13.Given that she had accepted the complainant's evidence on all the material issues, the obvious inference was that he brought the knife with him. The judge rejected the defence evidence. None was given by the Applicant himself. It is difficult to see how she could have come to any reasonable alternative inference.

14.Finally he argues that the evidence from a former occupant of the premises in question should have been considered and accepted in relation to the possible presence of a knife or knives there. The learned judge rejected this specific evidence of this witness as indeed she was entitled to do. All that existed was an acceptance by the victim that there may have been a knife inside the ginger by the altar. Given the judge's acceptance of the victim's evidence, and with no further evidence of how the actual knife came to be in the hands of the Applicant, her conclusion was entirely proper. The knife was never recovered. The Applicant in his statement to the police said he threw it away.

15.None of the arguments submitted by Mr Wong on behalf of this Applicant has any substance, and accordingly we dismiss the application.

Representation:

Mr Richard Wong, instructed by Messrs Chan & Kong, for the Applicant

Mr P K Madigan, SGC for Department of Justice, for the Respondent (HKSAR)