Chan Pui Mun v. HKSAR

FAMC No. 45 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 45 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 514 OF 2006)

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Between:

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DETERMINATION

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Mr Justice Bokhary PJ :

1.This applicant seeks leave to appeal against the Court of Appeal’s judgment affirming her conviction after trial in the District Court on 14 charges laid under the Offences Against the Person Ordinance, Cap. 212.  The charges were of assault occasioning actual bodily harm, wounding, inflicting grievous bodily harm, wounding with intent and causing grievous bodily harm with intent.  They spanned the period of almost four years from 4 April 2001 to 10 February 2004.  Each offence was charged as having occurred at a shop in Wanchai operated by the applicant’s husband, and having been committed against the same victim, a man in his early 20s, who worked at that shop.  And each was attested by direct evidence, supported by medical evidence.  The victim’s wages were modest.  His working hours were long.  And his duties were quite arduous.  The business carried on at the shop was the sale of parrots.  He had to feed them, clean their cages, clean the rest of the shop, attend to customers and perform various other functions. 

2.It was the prosecution’s case that the applicant had attacked and hurt the victim almost daily throughout the charge period.  The charges were sample charges. 

3.In seeking leave to appeal to the Court of Final Appeal, the applicant does so under both limbs of s. 32(2) of the Court’s statute.  Under the “point of law” limb, the applicant asks us to certify and grant leave to appeal on the question of whether evidence solely from the victim is admissible as similar fact evidence.  The evidence in question was of attacks other than the ones charged, the prosecution’s case being, as we have just mentioned, of almost daily attacks.

4.Under the “substantial and grave injustice” limb, two complaints are put forward.  One is that the Court of Appeal had treated the evidence of those other attacks as similar fact evidence when the prosecution had, at the trial, treated it as background evidence.  As for the other complaint, it runs thus.  The courts below had wrongly held that the defence had impugned the victim’s character.  And they had, on the basis of that error, taken into account evidence which was prejudicial to the applicant, namely evidence to the effect that she was of bad character and that the victim was of good character.

5.The short answer to the point of law raised on the applicant’s behalf is that there is no rule, nor is there any justification for establishing a rule, that similar fact evidence must come from a source other than the victim.  No analogy can be drawn between similar fact evidence and corroboration.  What source similar fact evidence would naturally come from depends on the circumstances.  In the present case, one of the suggestions made by the defence was that the victim may have accidentally injured himself.  On the question of whether that was a reasonable possibility, the prosecution was entitled to lead evidence of the whole of the circumstances, including the other attacks.  The evidence of the other attacks was relevant to the question of whether accident was a reasonable possibility.  And the natural source of such evidence was the victim.

6.Leading counsel for the applicant submitted that the other attacks were admissible only as background but not as similar fact evidence.  Whether one calls the other attacks background or similar fact is not crucial.  What is crucial is whether the defence was prejudiced by the other attacks having been treated as background by the prosecution at trial but as similar fact by the Court of Appeal.  We do not consider it reasonably arguable that the defence was prejudiced.  So the first complaint of substantial and grave justice is not reasonably arguable.

7.As to the second such complaint, it seems to us plain beyond reasonable argument to the contrary that the prosecution had not led evidence either of the victim’s good character or the applicant’s bad character.  Nor had the prosecution cross-examined the applicant on her character, although she was cross-examined on what she said about her own personality.  A question in the case – and it was a massive question – was why the victim had for so very long put up with what the prosecution said that he had so terribly suffered at the applicant’s hands.  Some of the evidence concerned went to showing that the victim’s personality was such that he might well suffer in silence rather than report any attack on himself by the applicant.  The rest of the evidence concerned went to showing that, contrary to the defence allegation, the victim was not the sort of person who associated with undesirable persons who might have injured him.  Like the first complaint of substantial and grave injustice, the second one is not reasonably arguable.

8.There is no reasonably arguable point of law available to the applicant.  Nor is it reasonably arguable that there was any departure from accepted norms on which she can base any complaint of substantial and grave injustice.  In the result, leave to appeal is refused.

Mr Joseph W Y Tse SC and Mr Eddie S Chan (instructed by Messrs Wong, Hui & Co.) for the applicant

Mr John Reading SC and Ms Irene Fan (of the Department of Justice) for the respondent