HKSAR v. Ho Sun Wai

CACC 378/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 378 OF 2007

(ON APPEAL FROM DCCC NO. 552 of  2007)

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Before: Hon Stuart-Moore VP, Stock JA and Wright J in Court

Date of Hearing: 16 January 2009

Date of Judgment: 16 January 2009

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J U D G M E N T

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Hon Wright  J (giving the judgment of the Court):

1.This is an application for leave to appeal conviction, after trial before District Judge Chua, on two charges of wounding with intent to do grievous bodily harm contrary to section 17(a) of the Offences Against the Persons Ordinance, Cap 212.  The applicant’s application for leave to appeal sentence was dismissed on an earlier occasion, he having indicated that he did not intend to pursue it.

2.The charges arose out of a dispute between neighbours: the evidence disclosed, and the judge was fully alive to the fact, that there had been bad blood between them up for some while prior to the commission of the offences.  Things came to a head in the early hours of the morning of 19 April 2007.  What started as an exchange of abuse escalated into a physical confrontation during which time the applicant used a knife to inflict wounds to the male neighbour and to his wife, who was then some six months pregnant.

3.Four witnesses testified the before the judge, three being members of the family and the fourth being a security guard employed in the building where the incident occurred.  The applicant also testified. 

4.The applicant had indicated to the judge when he was arraigned that he pleaded "Guilty to wounding but not wounding with intent".  The judge, quite properly in our view, at that early stage asked to see the medical reports: she did so in order to see, prima facie, whether the injuries were such that the wounding properly brought the charges within the ambit of section 17(a).  She followed this course in order, as she expressed it, to make sure that the applicant was not prejudiced by the loss of the discount which would have accrued to him by virtue of a plea.  She also reminded counsel, as she was entitled to do, that it was his duty to ensure that the applicant understood that on a plea of guilty he would be entitled to a one third discount which he would forfeit after trial. 

5.This course, which on any responsible reading of the transcript of proceedings demonstrates only concern for the applicant's position, has now been characterised in this application as being a “suggestion” by the judge that the applicant should plead guilty: it is submitted that this "indication of guilt before she heard evidence has cast doubt on the fairness of the trial".  Although there was no discrete ground of appeal which specifically criticised this aspect of the judge's conduct, as there should have been had it been intended to pursue this argument, these matters appeared in the applicant’s skeleton submission.  These submissions are without any merit: they border on the impertinent.

6.The issue at trial, as the judge realised, related to whether she was able to draw the inference that the applicant had acted with intent to wound the male neighbour and/or his wife.  To resolve that issue it was necessary for her to determine the question of credibility and reliability of the witnesses.  She referred to the evidence, insofar as it was necessary for her to do so in the course of succinct, clear reasons for verdict.  It is correct that the judge did not use the word "credibility" but from the way she delivered her reasons for verdict it was self-evident that this was a matter in the forefront of her mind.

7.She demonstrated why she accepted the evidence of the prosecution witnesses, indicating specific sections of evidence which she found supportive of their version.  She made reference to a previous conviction of the neighbour's wife on charges of criminal damage and common assault involving the applicant and his property, showing she was aware not only of the ongoing animosity between these people but also of the fact that the neighbour's wife, at least, was given to precipitate behaviour.

8.She also set out the applicant’s evidence which she described with, in our view, good grounds as being "patently untrue".  Of particular importance in this regard is the fact that it was the applicant's testimony that the physical fight occurred only after the security guard, PW4, had visited the neighbour's flat and then left the floor completely: according to him, he was then attacked by the male neighbour, his wife and the third person.  It was never suggested to the security guard when she was cross-examined on behalf of the applicant that she in fact was not present when the physical fight, about which she had testified in some detail, had occurred. 

9.Ground 1 asserts that the judge erred in "…ruling on evidence and rejecting the applicant's case of self defence…" and then lists seven complaints about findings of fact which the judge made.  The judge was entitled to accept or reject the evidence of the prosecution witnesses and the applicant: she was aware of discrepancies in the prosecution evidence which she expressed as being understandable in the light of the nature of the incident: she was well aware of the history of the characters involved. 

10.Ground 2 asserts that the judge failed to direct her attention to the risk of collaboration between the first three prosecution witnesses.  Apart from the fact that there was, physically, simply no time for the three of them to have concocted a story between the time of the incident and the arrival of the police, we reiterate that the judge was fully alive to the background history and to the circumstances in which these offences occurred.

11.In a document which is described as "Supplemental Appellant’s Skeleton Submission" three further paragraphs appear which, if we understand their import correctly, criticise the judge for intervening in the course of the proceedings and of hampering the applicant’s counsel in the conduct of the defence.  Once again, there is no specific ground of appeal to which these "skeleton submissions" relate, as there should have been had it been intended to pursue this argument.

12.In any event, we have read the transcripts which have been provided.  In regard to the question of the judge's interventions, we are satisfied that, although some of them may have been able to have been more economically phrased, none exceeded acceptable bounds (see CHAN Kam-keung v HKSAR FAMC43/2008, unreported).  The majority of the interjections by the judge were in an effort to have counsel, both prosecution and defence, who was not Mr Poon who appears today, put their questions more accurately or more clearly to the witnesses: it has to be said, unfortunately, that in each of these instances the judge's concerns were well founded.  Other interjections dealt with matters where the judge was seeking clarity for her own purposes.

13.We see no merit in the submission that the judge interfered with defence counsel's cross-examination.  Specific complaint is made about the exchange which appears at 85J to 86C of the appeal record.  It was clear that the judge's understanding of the evidence differed from that of defence counsel.  Each said so in terms.  The judge merely pointed out, her understanding of what the evidence had been: she specifically said to defence counsel "If you have instructions, then you put it, otherwise that, I am telling you, is established".  That hardly constitutes interference.

14.Complaint is also made about the exchange that appears from 88S to 90G.  Once again, it is clear that the judge was seeking to clarify the point that defence counsel thought he needed to make.  It is significant that prosecuting counsel became involved in this exchange, also indicating that he did not understand defence counsel's position.  The judge, sensibly, rose with a request to the prosecutor that he explain to defence counsel the apparent difficulty.  We note that when court resumed some six minutes later defence counsel was able to put his case to that witness without further difficulty.

15.None of the matters raised in the course of this application has any merit.  The application is dismissed.

Mr Robert S K Lee, SC, SADPP,  and Ms Olivia Tsang, SPP, Department of Justice, for Respondent

Mr Jackson Poon, inst’d by M/s W K To & Co for the Applicant