HKSAR v. Ly Hoa

CACC000665/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 665
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 23 June 1998

Date of delivery of judgment: 23 June 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant seeks leave to appeal against his two convictions for wounding with an intent, contrary to S.17 (a) of the Offences against the Person Ordinance, Cap 212.

2. Particulars of the first charge:

"LY HOA, on or about the 6th day of November, 1996, outside Block 25, Pillar Point Vietnamese Refugee Centre, Tuen Mun, New Territories, in Hong Kong, unlawfully and maliciously wounded NGUYEN XUAN CHIEN, with intent to do him grievous bodily harm."

and the second charge:

"LY HOA, on or about the 1st day of April, 1997, outside Block 27, Pillar Point Vietnamese Refugee Centre, Tuen Mun, New Territories, in Hong Kong, unlawfully and maliciously wounded HOANG ANH SON, with intent to do him grievous bodily harm."

3. It will be noted that both incidents occurred at Pillar Point Vietnamese Refugee Centre and that a period of five months separated them.

4. On the first count the victim PW1 gave evidence that there had previously been bad blood between himself and the Applicant and that the Applicant had accused him of theft.

5. So far as the incident itself was concerned Judge Chua summarised PW1's evidence in this way:

"In the evening of 5th November 1996 close to midnight, PW1 said he had gone to the camp to visit his wife and child. They were not in their room, so he went to the second floor of Block 25 in search of them. When he arrived on the second floor at the beginning of the corridor, he saw ahead of him two men sitting by the door to Room 15. They were drinking beer with two other men. As soon as he realised from 9 1/2 feet away one was the defendant, he averted his eyes and walked quietly past. Although he discovered his wife and child were not in either Room 17 or 18 at the end of the corridor, he stayed to chat with an occupant for 10 minutes. He left after that to return to the staircase.

As he drew up alongside the defendant, the defendant from 2 feet away called out his full name and asked him to join them for a chat. He sensed "the situation was not good" for him and declined, pleading a lack of time. As he went past, the defendant suddenly drew out a 2 feet long knife and slashed his throat and thumb. At the time, he was holding a doll in his right hand. He fled and was taken by ambulance to the Emergency and Accident Unit of Tuen Mun Hospital."

6. PW1 also gave evidence concerning the second count. He was again visiting the camp. When he was leaving, he saw one of the inmates he knew a Mr. Cuong. This inmate invited him to discuss the previous incident with him. PW1 told him to mind his own business. A fist fight then ensued. Cuong called out for assistance and the Applicant was one of the men who approached. He was holding a long knife. He managed to escape. However when he was in the kitchen searching for some implement to defend himself he heard a shriek outside and saw the Applicant chopping the legs of PW2, the victim in the second count. PW2 gave evidence that he had been attempting to escape from an armed group of men but fell down. While he was down he was chopped on his legs and head. He was able to recognise the Applicant as one of the men in the group.

7. The Applicant gave evidence that on both the occasions in question he had not been present at the scene. He said that he had been with his female companion, Miss Mak. He called her as a witness and in general terms she supported his evidence although no convincing reasons were given why she was able to remember the particular dates and times so long after the incidents.

8. The judge made the following findings of fact:

"The case of R. v. Turnbull, [1976] CAR, volume 63, 132 has highlighted the problems with identification evidence, and I have warned myself both PW1 and PW2 might have been mistaken in their identification of the defendant as their attacker. It is also true both were in situations of danger when fear might affect judgment. I am satisfied, however, having closely examined their testimony, that they had not identified the defendant because of any past grudges, but had honestly and without exaggeration related what they saw.

I am also satisfied, although both attacks took place at night, there was sufficient light and opportunity by both persons to recognize the defendant. Both were cases of recognition. I am satisfied when PW1 first saw the defendant in the first incident, he had averted his eyes after recognising him. I expect he was not looking for trouble. During the 10 minutes he was in the room talking to a friend, the defendant, who had also seen him, had fetched his knife and was ready for him on his way back to the staircase. I am also sure the defendant meant to attack PW1 again in the second incident but he got away and the defendant and his friends attacked PW2 instead.

I am satisfied beyond reasonable doubt both the defendant and his girlfriend had lied, she to help him. I have warned myself people may lie for reasons other than guilt. I am, however, satisfied the lies the defendant and his girlfriend told as to the defendant's whereabouts on those two occasions were motivated from a realisation of guilt. See R. v. Burge and Pegg [1996] 1 CAR 163."

9. The final observations were the subject matter of the 1st perfected ground of appeal. Complaint is made that the Judge wrongly directed herself in relation to lies.

10. This direction was somewhat confusing. In the first place it is difficult to understand the reference to a realization of guilt so far as Miss MAK is concerned.

11. It would appear that these observations are otiose. The Judge clearly did not regard either the Applicant or Miss MAK to be truthful witnesses and she rejected their testimony. The situation is in many respects similar to that which prevailed in R. v. MAN Bing-chou unreported being Criminal Appeal 383 of 1990.

12. In that matter the applicant, who was charged with murder, admitted that he had started the fire but said that it was an accident. The jury when convicting clearly rejected the exculpatory evidence of accident. The Court of Appeal held that once the jury were satisfied that the evidence of accident was a lie, the defence of accident went and a conviction inevitably followed. The lie did not prove guilt but, properly put, it eliminated the defence. In the present case, the judge was satisfied that the prosecution witnesses were truthful. She was also satisfied that the applicant and his girlfriend had lied. Those findings were sufficient to establish guilt - the prosecution case was proved, the alibi was eliminated. In such circumstances the Applicant's lies clearly must have been motivated by a realization of guilt. The Judge's statement that this was so added nothing. It certainly did not render the conviction either unsafe or unsatisfactory.

13. The second ground is in this form:

"2. There are procedural irregularities which render the trial unfair to the Applicant/Appellant.

Particulars:

(a) The learned trial Judge had taken over the prosecution by questioning PW1 about the material issues.

(b) The learned trial Judge had improperly elicited from Prosecuting Counsel about the contents of the witness statement of PW3."

14. The passages from the transcript complained of read:

"COURT: Can you tell us a bit more about your relationship with the defendant before this occurred?

Q. You said you've known him for a long time. For how long and what was your relationship?

A. Yes, I've known him for quite a long time, I've known him since 1990 or 91.

Q. Did you consider yourself friends or what?

A. Not really friends but we were just a kind of acquaintance to each other and sometimes we sat together and played.

Q. You said you used to play together - I think that's the phrase you used - what did you play or are you just referring generally to drinking together?

A. Well, the first thing was that he was from the same hometown in Vietnam as me and so we often played together and drinking together, but not very intimate friends I must say.

COURT: Was there bad blood between the two of you before this incident?

A. Yes, we had some kind of bad blood amongst ourselves before.

COURT: Sorry, had you quarrelled or something?

A. Yes.

COURT: What was the lighting condition at that time on the second floor?

A. It was not very bright and it wasn't too dark either, just about all right to see things.

COURT: How far were you from the defendant when you saw him?

A. You mean at the beginning when I saw him?

COURT: Yes.

A. The first time I saw him was when I was just walking up the staircase, a few steps.

COURT: Sorry, I don't know what that means. How many feet were you from him?

A. It was about from here to that door.

COURT: Yes, can I have the chart? No, not this one. It's 9 feet 5 inches.

And then did you get closer to him or not?

A. Well, in fact at that time as I told you before, I was looking for my wife and child and I had to go past him?

Q. When you went past him, how close to him were you?

A. Just about that far, about 2 feet or a bit more than 2 feet.

COURT: Yes, thank you. Is identity in issue?

MR NG: I think it is in issue because the defence is one of alibi.

COURT: I see, all right."

15. There is nothing objectionable in these interventions. What the Judge was attempting to do was to seek clarification concerning the witnesses' testimony.

"COURT: Sorry, according to the second photograph - I don't know which cut you received or which was ...

Q. Were they both caused on the same occasion or all caused on the same occasion or had you been hit on the head previously?

A. Yes, all during that incident.

COURT: Yes, thank you. Just a minute, Mr Nunns.

Now, you said when you turned around after you fell down you saw Cuong and Ly Hoa in front of you with their weapons to chop you?

A. Yes.

COURT: You've also said that you were so frightened you did not notice who chopped you?

A. Correct.

COURT: Are you saying that those two had attacked you but you cannot say which one of them caused which injury or are you saying something else?

A. Well, in fact I just cannot tell you who attacked me. At that time, all I did was lying down on the ground.

COURT: All right. When you looked up after you fell down, you said you saw Cuong and Ly Hoa with weapons in their hand, is that right?

A. Correct.

COURT: How far was Ly Hoa from you at that time?

A. From here to the end of this desk.

COURT: All right, that's 2 feet 5 inches. And did you notice how he was holding the weapon?

A. He was holding the weapon like this and both of them were just one next to each other in front.

COURT: He had his knife in his right hand you've just indicated?

A. Yes.

COURT: With his hand above his eye level?

A. Yes.

COURT: And how about Cuong?

A. He was the same.

COURT: Yes."

16. A similar observation can be made concerning this passage.

17. The final matter complained of relates to the reference to PW3's witness statement.

18. It is evident that this witness did not come up to proof. It would appear that all that the Judge was seeking to elicit was that this had been the case.

19. The matters complained of did not render the trial to be unfair. The convictions were not unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr. Darryl Saw, S.C., S.A.D.P.P. & Mr. Naresh Daryanani (D.P.P.) for Respondent

Mr. Eric Kwok instructed by M/S Ivan Tang & Co. for Applicant