HKSAR v. Lai Wang and Another

CACC 389/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 389 OF 2007

(ON APPEAL FROM DCCC NO. 479 of 2007)

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BETWEEN

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Before: Hon Stuart-Moore VP, Yeung and Hartmann JJA

Date of Hearing: 20 February 2009

Date of Judgment: 20 February 2009

Date of Reasons for Judgment: 26 February 2009

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REASONS  FOR  JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

1.The appellants (D1 and D2 respectively at trial) were convicted on 22 October 2007 of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, following a trial before District Judge M Yuen.  On the same day, D1 was sentenced to 3 years and 3 months’ imprisonment while a term of 3 years was imposed on D2.

2.The appellants sought leave to appeal against conviction and sentence.  At the conclusion of the proceedings on 20 February 2009, we gave leave to D1 and D2 to appeal against conviction but, treating the hearing as the hearing of their appeals, we dismissed both appeals.  The applications for leave to appeal against sentence were dismissed.  We now give our reasons.

3.The facts were relatively straightforward.  The evidence was provided in large measure by the victim of the alleged offence (PW1) and two witnesses called by the defence (DW1 and DW2).  Neither of the appellants gave evidence.

4.Putting matters shortly, a ‘pooling’ scheme amongst a number of taxi drivers was in existence in Mongkok whereby passengers paid a fixed fare to go to Tsing Yi but would have to share the taxi with others who did the same.  Drivers who participated in the scheme had to pay $100 each month and were then able to tune into a particular radio channel to enable them to work more efficiently.  PW1 was a participant in the scheme but there was a dispute over payment of his subscription.  It was this dispute which led to him being blinded in one eye as the result of an incident which led to the joint charge of wounding against the appellants.

5.The judge’s summary of the evidence of PW1’s account of the fight and its consequences was as follows:

“24.  Shortly after midnight on 24 Sept[ember] 2006, PW1 received a telephone call from Fei Choy who told PW1 over the phone that ‘Tai Hou’ (the nickname of D2) would not allow PW1 to use the radio channel.

25.  To PW1’s understanding the prohibition of use of the channel or a prohibition to speak over the channel implies a prohibition on the use of the Shandong Street passengers pooling line at the same time.

26.  After receipt of Fei Choy’s telephone message, PW1 carried on with his work. About 1 to 2 hours after he received the phone call from Fei Choy, PW1 was again queuing up at the Shandong Street passengers pooling line. After PW1 pulled his taxi aside, he saw D2 at the opposite side of the road. PW1 got out of his taxi and walked across the road to where D2 stood. PW1 wished to ascertain from D2 directly whether it was D2’s decision to disallow PW1 to use the channel.

27.  When PW1 got to where D2 stood, he asked D2 if D2 disallow[ed] him to speak on the channel. D2 gave him the answer ‘yes’ and that D2 was ‘watching the street’.

28.  As PW1 was talking to D2, D1 suddenly approached PW1, punched PW1 on his left face with his fist. At the same time, D2 put PW1 into a headlock. Both D1 and D2 then continued to punch PW1 on his face and head together.

29.  PW1 put up resistance and entered into a struggle with the defendants. Eventually PW1 fell onto the ground with his face facing the ground. After PW1 fell onto the ground, D1 and D2 stopped the attack and went away. PW1 was unable to say if D2 was also on the ground with him or whether D2 was just bending over him. PW1 recalled when he fell he heard D1 saying D2 was his ‘Big Brother’.

30.  After PW1 got back on his feet, PW1 went back to his taxi, PW1 noticed he got injuries over his face and his elbow. He got some water from the boot of his taxi and wiped the blood off his face. As PW1 was wiping his blood, D2 came over to him with 3 other males. D2 said to PW1 that if the matter was not settled, they could have another fight in Tsing Yi.

31.  PW1 later called his friend for assistance. PW1’s friend took PW1 to the hospital. Medical reports confirmed PW1 to have sustained serious left eye injuries. The left eyeball of PW1 ruptured in the incident. The left palpebral fissure of his left eye was completely filled with blood clot and oozing uveal tissue. No light perception was detected on his left eye. Emergency operation was carried out to repair PW1’s ruptured eyeball shortly after the incident.

32.  Despite the operation PW1’s left eye vision was completely obscured by significant hyphaema. Vitreous hemorrhage was detected on PW1’s left eye. No light perception was recorded on PW1’s left eye. Eventually PW1 had to have an artificial eye shell inserted into his left eye socket to replace his biological eyeball.”

6.When DW1 and DW2 testified, each of them said that PW1 was the first to throw a punch and that this was directed at D2.  Neither of them said that D1 or D2 struck PW1 on the head.  However, D2 in his interviews with the police, described giving PW1 two punches on the face and added that he saw that PW1’s face was bleeding.  He told police: “Ah Sir, I will be responsible for what I have done.  However, it was [PW1] who hit me first so I hit him back”.  D1, in his answers to the police, made out at first that he had not hit PW1 at all but had merely mediated.  Later, he agreed that he had become physically involved in the incident.  He admitted getting hold of PW1, losing his balance, falling to the ground and seeing D2 hit PW1 in the face twice.  As he was very scared, D1 said that he drove away.

Grounds of appeal

7.No evidence was called to establish that PW1 had suffered a wound at the hands of his assailants.  Perhaps an inference to that effect might have been drawn from PW1 having to wipe blood from his face but it was an aspect of the charge which appears to have escaped the attention of everyone at trial.  This is only worthy of mention at all because Mr John Haynes, for both of the appellants, flourished this point as his 1^st ground of appeal.  It is a technical point with no particular merit but as, technically he is correct, we propose, in the absence of any prejudice to the appellants and in order to meet the situation which has arisen, to apply the provisions of section 83A of the Criminal Procedure Ordinance, Cap. 221.  It was at no stage disputed, nor could it have been, that PW1’s ruptured left eyeball amounted to grievous bodily harm.  The issue which did arise upon this charge was whether the evidence was sufficient to establish an intent to cause grievous bodily harm.  This was an issue which arose whether the particulars alleged ‘wounding’ or ‘causing grievous bodily harm’. 

8.Section 83A provides:

“Power to substitute conviction of alternative offence

(1)  This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2)  The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity.”

The power to substitute a conviction of an alternative offence includes the court’s power to amend the particulars of the offence upon which the conviction has been recorded (see: HKSAR v Li Ting-kit [2000] 2 HKLRD 129 at 144).

9.Accordingly, we granted leave to appeal against conviction on this ground.  The present statement and particulars of the offence of which the appellants were convicted read as follows:

“Statement of Offence

Wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212.

Particulars of Offence

LAI Wang and LO Ho-kit, on the 24th day of September, 2006, at the junction of Reclamation Street and Shantung Street, Mong Kok, Kowloon, in Hong Kong, unlawfully and maliciously wounded TANG Ying-kei, with intent to do him grievous bodily harm.”

10.The existing statement of offence will be amended so that it reads:

“Causing grievous bodily harm with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212.”

The particulars of the offence will be amended to read:

“LAI Wang and LO Ho-kit, on the 24th day of September, 2006, at the junction of Reclamation Street and Shantung Street, Mong Kok, Kowloon, in Hong Kong, unlawfully and maliciously caused grievous bodily harm to TANG Ying-kei, with intent to do him grievous bodily harm.”

11.The two remaining issues which arise in this appeal were rightly described by Mr William Tam, for the respondent, as being whether, first, the judge could safely rely on PW1’s account when set alongside the evidence of DW1 and DW2 and the largely exculpatory statements of D1 and D2 and whether, secondly, there was sufficient evidence to find that D1 and D2 intended to cause grievous bodily harm to PW1.

12.The last of these points is raised in the context of the 2^nd and 3^rd grounds of appeal.  In these, it was emphasised by Mr Haynes that this was a short fight involving no weapons and no premeditation.  On the other hand, Mr Tam submitted in his written argument that, as the judge had accepted PW1’s account, this meant that D1 and D2 had deliberately punched PW1 on his head and face after D2 had put PW1 into a headlock.  If they had aimed punches at other parts of PW1’s body which would have been less susceptible to really serious injury, only then would there have been force in Mr Haynes’ submission.

13.The judge’s assessment of this aspect is to be found in her Reasons for Verdict, in these terms:

“105.  I accept PW1’s evidence that D1 approached and delivered his first blow on PW1’s face when PW1 and D2 were still having their verbal exchange. On the evidence, I do accept the fact that the confrontation by PW1 is unexpected. The motion and the approach by D1 in delivering his first blow on PW1 was not within the contemplation of the parties. D2 would not be acting in concert with D1 for the first blow on PW1. Nevertheless when D2 exercised his conscious decision to grab PW1 by his neck and to assault PW1’s head … the same time [D1] delivered his blows on PW1’s head, D2 acted in joint enterprise with D1 on all those subsequent attacks on PW1 … carried out physically by D1 or D2. When grabbing PW1 by his neck, D2 was fully aware of the blows delivered by D1 on PW1 landed on PW1’s head. They must have intended the natural consequence of causing grievous bodily harm on PW1 by those blows.”

14.The judge then ruled out a defence of self defence on the part of either D1 or D2 before going on to say:

“110.  A person’s intention can only be viewed with reference to all the surrounding circumstances. When PW1 was put under a headlock by D2 and the blows were delivered to the head of PW1 jointly by D1 and D2 resulting in a ruptured eyeball, it would be an affront to common sense to fail to come to the irresistible finding that the attackers, i.e. D1 and D2 did intend with their blows to cause serious bodily harm on PW1.

111.  I accept on the evidence PW1’s ruptured eyeball was occasioned as a result of the cumulative blows on the head of PW1 by D1 and D2.”

15.It is perfectly plain, on the judge’s assessment, that by repeatedly punching PW1’s head and face, really serious injury was intended by D1 and D2.

16.There is no reason, in our opinion, to interfere with the judge’s conclusions in this regard.

17.The 4^th and 5^th grounds of appeal contain a suggestion that the judge failed to carry out a proper assessment of PW1’s credibility in the light of the evidence given by DW1 and DW2 and “failed to direct herself correctly as to the standard of proof when assessing the caution statements and the defence case”.  However, it is apparent that the judge was well aware of the approach that had to be taken by her in regard to both aspects of the reasons for verdict which are criticised.  She had set out the appropriate burden and standard of proof to be applied before going on to say:

“69.  This court must determine whether the evidence satisfied this court beyond reasonable doubt that the prosecution’s case has been correct in contending that D1 and D2 jointly unlawfully and maliciously wounded PW1 with the intent to cause PW1 grievous bodily harm.

70.  If this court accepts the accounts given by the defence witness[es] to be truthful or probable, the whole event may well be a matter of accident and that the injury on PW1 could well have been accidental.

71.  Even if this court does not accept the accounts given by the 2 defence witness[es] or the accounts given by defendants in their statements to be truthful or credible, this court must still proceed to consider whether the defence case or the defence propositions cast reasonable doubt on the prosecution’s contention. If reasonable doubt exists, the defendants are obviously entitled to the benefit of it.

72.  In assessing the evidence, this court bears in mind the fact that D2, DW1 and DW2 are persons of clear record. In law, a witness of good character or of a clear record is considered to be more credible when his credibility and veracity are under scrutiny. Secondly a person of a clear record such as D2 is considered to have a lower propensity in engaging in crime.”

18.The judge then gave a detailed assessment of the evidence she had accepted and also her reasons for rejecting other contradictory evidence.  The judge was mindful of PW1 being, as she put it, “economical with words” but we are satisfied that, having seen and heard that witness, she was fully entitled to have nonetheless accepted his testimony.

19.For these reasons, the appeals against conviction were dismissed.

Sentence

20.Turning to sentence, there was no merit in the grounds advanced by Mr Haynes.  This was a dreadful offence resulting in the permanent blinding of PW1 in one eye.  The 3½-year starting point taken by the judge was entirely appropriate.

21.It is noteworthy that when the judge was sentencing D1, she made reference to the fact that he had previously served a total of 12 years’ imprisonment for robbery coupled with a firearms offence.  In this regard, D1 had apparently been released from prison in 2002 and the judge stated that because he had remained out of trouble until 2006 when this offence was committed, she was “prepared to give him a discount of 3 months” from the starting point of 3½ years.  We can, with respect, see no justification whatsoever for granting D1 any discount.  He had a dreadful criminal record and this was another illustration of the serious violence to which he is prone to resort.

22.The sentence of 3 years in D2’s case was because the judge discounted his sentence by 6 months (or just over 14%) on account of his previous good character.  Following a contested trial for an offence of this gravity, where D2 had shown no remorse of any kind, this was extravagant leniency for which again there was no proper justification.

23.Accordingly, the applications in regard to sentence were dismissed.

Mr William Tam, SADPP, of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Messrs Krishnan & Tsang, assigned by Director of Legal Aid, for the 1^st and 2^nd Appellants.