Lam Pang and Another v. The Queen
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CACC000627/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 627 OF 1973 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 17th December, 1973. ----------------- JUDGMENT ----------------- 1. This case arises out of a fight between two parties of young men which occurred on the 2nd May, 1973, at the Maison Rouge Restaurant, Cleveland Street. As a result three persons were severely injured. Seven young men were charged with three counts of wounding with intent to do grievous bodily harm. They were all found guilty and were sentenced to two years' imprisonment. The two appellants are two of the seven persons. In the court below they were the sixth and seventh accused. 2. The central character in this drama is one CHAN Shuk-kuen, a dance hostess. During the trial she was referred to as "Elsie". Sometime before the 2nd May, Elsie complained to one LO Chiu Wa, who was referred to in the court below as "P.C. Wa", that some of the accused persons were in the habit of borrowing small sums of money from her and not repaying her. P.C. Wa who seemed to have been her "protector" arranged a meeting with Elsie and the second accused at which no settlement was reached. It was agreed, however, that there would be a further meeting at 1 a.m. at the Maison Rouge on the 2nd May. 3. P.C. Wa arrived at the Maison Rouge to keep this appointment but Elsie was not there. He saw two taxis arrive filled with young men and he saw them come into the restaurant. P.C. Wa then left the restaurant because he thought that there might be a fight. It is quite obvious from the evidence that there existed two opposing groups of persons, P.C. Wa's group and another group, included in which were at least some of the accused persons in this case. It was this other group that P.C. Wa saw arrive at the Maison Rouge. 4. P.C. Wa returned to the restaurant later bringing the second, third and fourth accused with him. By this time Elsie had arrived at the restaurant and P.C. Wa and his friends joined her at a table. The evidence is somewhat confused as to what then happened, but there is no doubt that a fight ensued and various weapons were produced. Three persons who were members of P.C. Wa's group were badly hurt and it would seem that from the evidence that P.C. Wa's group was unarmed while the opposition group in which some of the accused persons were included was armed. Elsie was present throughout the fight and was the most important witness called at the trial. It is agreed that the lighting at the restaurant was dim but she said she recognized five of the accused persons as being in the party which was armed and which fought with the party of P.C. Wa. She also said that she particularly noticed at least two persons whom, until then, she had not seen before, who were amongst that party. Later, she identified various of the accused persons including the sixth and seventh accused, the two present appellants. She said that she paid particular attention to the two appellants because they were persons in the armed party whom she had not seen before. The fight caused considerable confusion because the restaurant was full. 5. It is necessary to deal with each appellant separately. The first appellant was identified by Elsie at an identification parade. In her evidence she says that she saw him holding "an object" in his hand. She also said that he, together with two other of the accused were "fighting with objects in hand". She said they were all fighting P.C. Wa's friends but it was very difficult for her to say who attacked whom. 6. This is the only evidence against the first appellant which was accepted by the judge. There was other evidence that the first appellant was concerned in the fight which was given by P.C. Wa but the evidence of P.C. Wa was expressly rejected by the trial judge in his judgment. It is fair to say that the judge accepted the evidence of Elsie when she said that she carefully noted the three persons in the group whom she did not know, and of whom the first appellant was one. 7. The first accused, WONG Hin-chiu, gave evidence on his own behalf and said that he knew the first appellant and that he, the first appellant and Elsie had met together at another ballroom a few days previous to the incident. This was denied by Elsie and by the first appellant who each say that they had not seen each other before the day of the incident. This is important because of the reason that Elsie gave for recognizing the first appellant: namely that she had paid particular attention to him as he was a complete stranger to her. 8. Later, in his evidence, the first accused contradicted his previous statement and said that the first time he saw the first appellant was at the police station. It would, we think, have been important to test whether Elsie's reason for her identification of the first appellant was correct in view of the direct conflict between the evidence of Elsie and the first appellant on the one hand and the evidence of the first accused on the other hand. It is true that the first accused told a different story later. But the case against the appellant rests entirely on the identification of Elsie. The point is: Did Elsie see the first appellant before the date of the incident? 9. One solicitor represented both the first accused and the first appellant and there is no doubt that the allegation of a previous meeting by the first accused must have taken him by surprise. It is not difficult to understand, therefore, why neither the first accused nor the first appellant was cross-examined on this point. Mr. Ching, for the first appellant, pointed out that this point was not referred to by the trial judge. He urged that the statement of the first accused that there had been a previous meeting at which both Elsie and the first appellant were present, though it was contradicted later, must throw some doubt on the validity of Elsie's identification of the first appellant. And we are inclined to agree that this would be the case if the judge believed that there might have been a previous meeting. 10. The first appellant did not deny that he was present at the ballroom. He said he witnessed the fight but that he did not take part in it. He said that he knew two of the persons who were attacked. He was sitting a little way away from the corner of the restaurant in which the fight occurred. He said that he was having tea with two girls, one of whom has since left Hong Kong for Singapore. The other girl was not called as a witness on his behalf because he said it was unnecessary to do so since he had not been engaged in the fight. This appellant was represented and we cannot accept this as a valid reason for not calling the other girl. 11. The first appellant said he was sitting with the two girls at the table just inside the main door. He said, when the fight occurred he wished to leave the restaurant to run away. However, he said that he tried to leave by the rear door. This would have taken him nearer to the fight. If he had wished to leave the restaurant he could have left by the main door which was very close to him. 12. However, he said the fight took a very short time and all the other customers in the restaurant tried to run away towards the rear of the restaurant as well. They were told that the rear door was locked so they all turned and dashed out of the main entrance. He and the two girls also left from that entrance. As I have said the only evidence against the first appellant is that of Elsie. She said that the first appellant took part in the fight but she did not particularize what part this appellant took in the fight: whether he was defending himself, defending his two friends who were in the party that was being attacked or whether he himself was one of the attacking party. 13. Mr. Ching argued that this evidence was not enough for the learned trial judge to reach the conclusion that the first appellant had any intent to cause grievous bodily harm or that he had a common intent with those persons who, it is clear from the evidence, injured the three victims of the fight. He said that at the most the evidence showed was that his client took part in an affray. The evidence was that the first appellant had a weapon and was fighting. And the witness Elsie said said that it was difficult to tell what each individual person actually did in the fight. It must be admitted that the evidence as to the intent of the first appellant was very slight. It amounts to an inference drawn from the account of Elsie and is otherwise unsupported. But we are not saying that it was wrong of the judge to draw such an inference. 14. We consider that though each of the two points made by Mr. Ching, namely, the slight and unresolved doubt thrown on the identification of the first appellant and the paucity of the evidence to show what specific part the first appellant took in the fight is not, if considered separately, a matter on which to found a successful appeal, yet together they are such that we should apply section 83(1)(a) of the Criminal Procedure Ordinance. We direct that the verdict of the judge be set aside on the ground that in all the circumstances it is an unsafe or unsatisfactory verdict. 15. The second appellant was the seventh accused in the court below. Two witnesses identified him as being present at or taking part in the fight. The first was P.C. Wa and it is interesting to note that this witness said that he did not see this appellant "do anything". However, although this is absolving evidence so far as this appellant is concerned the judge rejected the whole of the evidence of this witness. 16. The other witness again was Elsie. Her evidence, so far as this appellant is concerned, was similar to her evidence concerning the first appellant. She said that this was the first time she had ever seen him and so she took particular notice of him. She said that she saw the second appellant in the restaurant fighting with P.C. Wa's friends. She saw him with an object in his hand. At the identification parade she identified the second appellant as being one of the persons who took part in the fight but she said she did not know what the object was that he was holding in his hand at the time. 17. The second appellant in his defence stated that he was not at the restaurant at all and he called in evidence a woman name Lam Mei Yuk. This is a girl with whom the second appellant lives. She gave evidence that she was with the second appellant during the period in which the fight took place. The police had interviewed this witness three days after the fight and had taken a written statement from her. At that time the police were interested in the movements of a man called LAU Man Fei. This is abundantly clear from the statement and the man, LAU Man Fei, was referred to by several witnesses during the course of the trial. LAU Man Fei lives in the same flat as the second appellant and LAM Mei Yuk. Certain portions of the written statement taken from LAM Mei Yuk were put to her in cross-examination by Crown Counsel. The statement was an uncautioned statement and is in narrative form. It has obviously been composed from answers given by LAM Mei Yuk to questions put to her by the police as part of their investigation into a possible connection between LAU Man Fei with this case. There is only one reference to the second appellant and that is immaterial. In the witness box, LAM Mei Yuk denied making part of the statement which she is recorded as having made. This was a reference to her movements at a period of time well after the time at which the fight took place. The learned trial judge rejected the evidence of the alibi of the second appellant because of the denial by LAM Mei Yuk that she had said what was recorded. It does not appear that he realized that the offending passage covered a period of time well after the fight. Had this been pointed out to the trial judge we do not know whether he would have accepted the evidence of the alibi or not. In this sense we think that there was a misdirection albeit not a misdirection sufficient of itself to found a successful appeal. However, coupled with the not very satisfactory evidence of identification of the second appellant and also taking into consideration what I have said above with regard to intent which applies equally to this appellant, we think in this case also we should apply section 83(1)(a) of the Criminal Procedure Ordinance. 18. In the event, therefore, the appeals of both appellants are allowed and their convictions quashed and their sentences set aside.
Representation: C. Ching (K.D. Yung & Co.) for 1st Appellant. F. Eddis (Samuel Soo & Co.) for 2nd Appellant. Allderdice, C.C. for Crown/Respondent. |