HKSAR v. Harjang Singh
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CACC000622/1999 CACC 622/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 622 OF 1999 (ON APPEAL FROM DCCC 678 OF 1999) ______________
______________ Coram: Hon Stuart-Moore Ag CJHC, Keith and Woo JJA Date of Hearing: 10 August 2000 Date of Judgment: 10 August 2000 _______________ J U D G M E N T _______________ Stuart-Moore Ag CJHC (giving the judgment of the Court): Introduction 1. On 3 November 1999, the Applicant (D2) was convicted in the District Court following a trial before Judge Sweeney on a charge of wounding with intent which he had faced jointly with three others (D1, D3 and D4), all of whom were acquitted. The charge sheet alleged two other offences of assault occasioning actual bodily harm on which all of the defendants, including the Applicant, were acquitted. The Applicant now seeks leave to appeal against conviction on the charge of wounding. Prosecution's case 2. The charges arose out of an attack by one group of four or five men, which allegedly included the Applicant, on another group of four men who were called on behalf of the prosecution as witnesses to the incident (PWs 1-4 inclusive). It took place at about 8.30 p.m. on 7 June 1999 in Ma Tau Kok Road. The prosecution alleged that the Applicant's group used wooden poles and fists during the attack but that the Applicant, having had a pole taken from him, then produced from his rear waistband a chopper or knife and used it to chop PW1 on his right shoulder. 3. PW1, together with the rest of his group, fled to a building in the vicinity and called police. Two officers were making their way to the scene when they saw D1 (Palminder Singh) running barefoot along the pavement. He was eventually caught after a long chase. 4. The Applicant was not arrested until 7 a.m. on 10 June 1999. On 16 June 1999, the Applicant was identified in a series of identification parades by PWs 2-4 inclusive as the man who had wielded the knife during the incident. The Applicant was well known to PW1 and PW1 gave evidence of recognition of the Applicant rather than identification. Application to adduce additional evidence under section 83V 5. Before turning to the grounds of appeal, Mr Grossman, SC, on behalf of the Applicant, submitted that this court should receive fresh evidence under the terms of section 83V of the Criminal Procedure Ordinance, Cap. 221. 6. The evidence in question related to D1 (Palminder Singh) who, about six months after the conclusion of the trial, gave an affirmation on 10 May 2000 setting out the matters in respect of which he could provide testimony. The affirmation essentially boiled down to an assertion that he happened, by pure chance, to notice the incident, the subject matter of this case, in which a group of people were fighting. Palminder Singh saw people running away but he recognised two of the men in the group who had been attacking others, some of whom were holding wooden sticks. In particular, he knew one of the men by the name of Ali, and all of those in Ali's group appeared to be Pakistanis. He knew the Applicant extremely well as a close friend and he affirmed that if the Applicant had been amongst that group he would have recognised him easily. His affirmation stated that the Applicant was not present at the scene. 7. This affirmation has to be viewed in its full context. Palminder Singh was acquitted on the charges he faced. He did not give evidence in his own defence during the trial and, for this reason, was unable to provide the evidence on behalf of the Applicant which is now contained in his affirmation. Although he was competent to give evidence for the Applicant, he was not a compellable witness by virtue of section 54(1)(a) of the Criminal Procedure Ordinance. 8. No application was made on the Applicant's behalf in the court below for his trial to be severed from some or all of the others in order to enable him to call Palminder Singh on his behalf. 9. On the first day of the trial, the Applicant served a notice of alibi on the prosecution which was in these terms:
10. It is plain from the notice that the Applicant was unable to identify anyone who could support his alibi. The Applicant himself did not give evidence at his trial and he did not seek to support his alibi with evidence from any other source. 11. For the purposes of reaching a determination on the application to call fresh evidence, we have considered the relevant parts of section 83V of the Criminal Procedure Ordinance which are as follows:
12. Subsection (2) relates to fresh evidence which might have been called during the trial itself whereas subsection (1) gives the court a wider discretion in certain circumstances to receive evidence, even though the evidence could not have been called during the previous proceedings. For example, we often hear challenges being made in this court which concern the competence of counsel's handling of the defence in the trial court below. Evidence is then tendered under subsection (1) to support or deny the contention that there has been incompetence. 13. Mr Grossman submitted that the Applicant had fulfilled the twin requirements of subsection 2(a) and (b) and, in the alternative, he invited the court to receive the evidence under the broader basis of subsection (1)(c). 14. The proper approach to these two subsections was set out in The Queen and Tam Chung-shing [1989] 1 HKLR 42 at p. 47G, where Silke VP observed that:
15. Taking, firstly, the provisions of section 83V(2)(a), the court has looked at whether the evidence which we are asked to receive is "likely to be credible". This needs to be set into the context of all of the evidence because we do not consider that it can or should be looked at in isolation. 16. There was a wealth of evidence against the Applicant. Firstly, PW1 knew the Applicant well and he gave evidence that it was the Applicant who led the assault by firstly grabbing hold of him and then slapping him across the ear. The attack became more serious when the Applicant picked up a pole from a table nearby and proceeded to use it by hitting PW1 on various parts of his body until PW1 managed to get hold of it. It was at this stage that PW1 saw the Applicant produce a vegetable chopper, or something of that description, from his waistband which he used to chop PW1's shoulder. 17. In addition, PWs 2, 3 and 4 each identified the Applicant as the principal assailant who eventually resorted to the use of the chopper. They had not previously encountered the Applicant but were able to identify him without difficulty nine days after the incident on the identification parades. 18. The Applicant, in common with his co-defendants, did not, as we have said, give evidence. His defence was advanced by his counsel on the footing that PW1 and his friends had deliberately framed the Applicant as the result of past bad feelings which had built up between the Applicant and PW1. In furtherance of the Applicant's defence, it was suggested that the victim's injuries had been self-inflicted, motivated by a desire to obtain "settlement" money from those he accused of attacking him. 19. Having regard to the evidence which the judge found was reliable, in the sense that it was truthful and accurate, we have concluded that the evidence we have been invited to receive is not likely to be credible. The same considerations apply to the alternative application which was made under section 83V(1)(c) and accordingly we do not consider it either necessary or expedient in the interests of justice to receive the evidence. In these circumstances, we rejected the application to receive further evidence and proceeded to hear the leave application relating to conviction. Grounds of appeal 20. Although three grounds of appeal have been put before us, they are closely related and can be dealt with together. Mr Grossman submitted that the conviction was unsafe and unsatisfactory because, in summary:
21. In reality, the third complaint was an example of one of the many contradictions referred to by Mr Grossman when he was advancing his arguments today. 22. We do not need to consider the evidence in great depth in order properly to consider these grounds. As PW1 and the Applicant were very well known to each other and the remaining eye-witnesses had positively identified the Applicant as the culprit who held the chopper, the judge was satisfied that the attack, in general terms, occurred in the circumstances described by the prosecution's witnesses. 23. Mr Grossman has criticised the judge's findings in regard to this Applicant by focusing his argument to a large extent upon the fact that eleven out of the twelve verdicts recorded by the judge were acquittals despite the positive evidence, to be gleaned from the testimony given by PWs 1-4, that the four defendants were all jointly involved in the three offences alleged against them. He submitted that the judge had isolated the evidence which identified the Applicant as the guilty culprit on the wounding charge, without giving proper regard to the reservations the judge had expressed on other aspects of the testimony given by the same four eye-witnesses. 24. We disagree with this proposition. It is plain that the judge did give the closest attention to the evidence in the trial and, having done so, was satisfied that no mistake had been made about the role played by the Applicant which was wholly distinct from the roles played by his co-defendants. Regarding the parts played by the others in his group, the judge said that he was not satisfied to the required standard that they had assisted the Applicant in the attack on PW1 and the other two victims of assault. His justification for this is to be found in three passages which read as follows:
25. Obviously there was considerable suspicion which attached to all of the co-defendants, particularly D1 (Palminder Singh) who was arrested as he ran away from the scene in bare feet. However, far from failing to heed the detail of the case which the judge has been criticised for doing, he could not have looked with greater care at the evidence in arriving at his conclusions. These, in some respects, can be regarded as having been generous in relation to the Applicant's co-defendants. 26. In the course of giving his Reasons for Verdict, the judge referred to evidence given by PW1 to the effect that he had previously engaged in "settlements" of cases. There is no justification for the contention made on behalf of the Applicant that the judge had ignored the importance of this aspect of the case. On the contrary, in a case where it had been suggested that PW1 was motivated to frame the Applicant in the hope of settling out of court for a monetary sum, it was plainly a crucial aspect of the way the defence was being run. It is apparent from the Reasons for Verdict that the judge had this very much in mind. 27. Finally, with regard to the inconsistencies arising from PW1's evidence, particularly relating to his injuries when compared to the medical reports about his condition, these were taken into account by the judge. They were generally, in any event, of peripheral significance and, if the defence of a "frame-up" had any substance to it at all, it might well have been expected that the evidence would have been rehearsed so as to iron out any potential inconsistencies. One example concerned an alleged injury to PW1's left or right ear about which he was inconsistent. The judge covered the inconsistencies in a passage taken from his Reasons for Verdict in the following way:
Conclusion 28. There was, we are satisfied, nothing in the reasoning of the trial judge which can properly be criticised. His findings were entirely justified on the evidence and we have not been given any good reason to disturb the verdict which was recorded against the Applicant. 29. Accordingly, the application is dismissed.
Representation: Mr P.S. Chapman, SADPP, of the Department of Justice, for the Respondent. Mr C.S. Grossman, SC and Ms M. Panesar, instructed by Messrs B. Manek & Co., for the Applicant. |
Further hearings and rulings under CACC 622/1999