HKSAR v. Chan Hok Pang

CACC 193/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 193 OF 2008

(ON APPEAL FROM DCCC NO. 1082 OF 2007)

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

Date of Hearing :  5 March 2009

Date of Judgment :  5 March 2009

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

Introduction

1.This is an application for leave to appeal that relies entirely on discrepancies in the testimony of witnesses at trial and the suggestion that the judge did not pay sufficient attention to them.  The applicant did not give evidence at trial, and the defence at trial was conducted entirely on the basis of discrepancies.  This Court has had to read, in addition to the Reasons for Verdict, almost 200 pages of transcript, which covers all of the evidence at trial, to note all the discrepancies that were drawn out, to note their context, to note what the judge said of them, and to see whether the judge erred in his treatment of them.

2.The applicant was convicted on 30 April 2008, after trial before Judge Whaley in the District Court, of three offences of wounding with intent to cause grievous bodily harm.  He was sentenced to a total of four years imprisonment and, not surprisingly given the gravity of the offence and the injuries inflicted, there is no extant application for leave to appeal against sentence, that having been abandoned and accordingly dismissed.  He seeks only leave to appeal against the convictions.

The evidence

3.The facts are relatively detailed and span a few days at the beginning of August 2007.  It suffices for present purposes to provide a mere outline.

4.A Ms Li owed rent to the applicant and there was a dispute about it.  She lived with a Mr Xu and his son in premises also occupied by a Mr Liu.  On 2 August, according to her testimony, there was some unpleasantness between her and the applicant and an implied threat against her.  She said that on the afternoon of 3 August, several men, including one who had been in the applicant’s company the previous day, came to her and one of them assaulted her.  She reported the matter to the police.

5.That evening Xu, Li, Liu and a man called Tsang gathered at a restaurant in the same road where they all lived.  It is common ground that Xu and a clansman of his called Wong met the applicant at Xu’s behest, in an attempt to sort out the dispute but, on Xu’s version, the discussion, which took place outside a nearby post office, ended unpleasantly although according to Xu there was no violence.  He returned to the restaurant.  He made several telephone calls to the applicant as did Tsang.  Xu said that he was warned by Wong by telephone that about ten men were gathering, apparently with a view to an attack.  Xu telephoned Ms Li, who by that stage had returned home, and told her to stay where she was.  She did not obey because, she said, she was nervous and came out of the premises.  The evidence of Xu and Li was that they saw the applicant ahead of a group of about ten men and that the applicant (or someone else) spoke to Tsang, asked if it was he who had just made calls to the applicant and when Tsang said it was, the applicant signaled his followers to attack Tsang.  They did so with choppers and other weapons.  Xu and Liu rushed forward to assist but were themselves attacked.  The three injured men boarded a taxi and were taken to hospital to be treated for serious injuries.

6.It was accepted at trial that a gang of about ten men had attacked Xu, Tsang and Liu that evening outside the restaurant and that that attack had taken place shortly after telephone calls from Xu and Tsang to the applicant and, most particularly, shortly after the last telephone call of all, which was from the applicant to Tsang.

The defence

7.The applicant did not testify and adduced no evidence on his behalf.  A detailed defence case was put to Xu, none of which was supported by evidence.  It was to the effect that when Ms Li had an argument with the applicant in a restaurant earlier that day about the rent, an unidentified 60-year-old man had intervened, to Ms Li’s annoyance; that that 60-year-old man was present when Xu and Wong had met the applicant near the post office and that Xu had severely assaulted the man; that Xu wrongly assumed that the applicant had called the police (who did visit the area of the restaurant that evening and speak to Xu); and that Xu therefore decided falsely to name the applicant as the person who had led the attacking gang.

Analysis

8.Sometimes discrepancies are important and may serve to undermine the credibility of witnesses in a material manner, such as might cause a judge to reject their evidence.  But the approach to discrepancies must be realistic.  Often, words used by witnesses in testimony or in their witness statements to the police are treated by counsel as if they were statutory instruments.  Often, the clear sense of what a witness said is buried by an insistence on literal interpretation.  Sometimes, as in this case, the events in question, the lapse of time, the number of persons involved, and understandable nervousness on the part of the witness both at the time of police interview and at trial, will inevitably result in discrepancies.  Often, though not always, discrepancies, if treated with common sense, do not detract from the credibility of the core story by the witnesses and this, in our judgment, was such a case.

9.In this particular case, cross-examination was extraordinarily detailed and we have read it all.  Isolation of discrepancies is one thing: reading them in the context of the testimony as a whole quite another.  We are bound to say that the more we read of the evidence in this case, the more obvious it became – on paper at least – that despite the discrepancies to which we have been taken (and we see no utility in particularizing them) the evidence of the witnesses as a whole, and on the key points, was entirely credible.  Further, the more into the cross-examination we read, the more obvious it was that the emphasis of the trial on every conceivable discrepancy became an exercise in losing sight of the wood for the trees.  What was never in dispute was that there was an argument between Ms Li and this applicant; that on the afternoon of 3 August 2007, at a time when the argument was not resolved, she called the police in relation to an incident at which was present an associate of the applicant; that there was a series of telephone conversations between the applicant and Xu and Tsang on the night of 3 August very shortly after which there was a vicious attack by about ten men upon Xu, Tsang and Liu.  So the only question was whether the applicant ordered the attack.  Xu and Li said that he was there and the other witnesses were not able to say who the leader of the gang was.  The applicant did not give evidence.

10.It is also apparent from a reading of the transcript that the judge was alive to each discrepancy pointed out and himself intervened on occasions to explore them.  One example is when Ms Li accepted that the story she told the police when she called on the afternoon of 3 August was materially different from that given to the Court about the events of that afternoon.  She was asked about this difference, not only at length by counsel but also by the judge, and gave an explanation which appears to us to be perfectly understandable, namely, that by the time the police arrived she regretted having reported the matter and was afraid and therefore watered down the facts.

11.There was detailed exploration of differences between her evidence in court and specific matters mentioned or not mentioned by her to the police and she explained that the situation in which she found herself was one that had caused her to be confused and scared, so that she was not paying attention to the details.  This particular comment arose from the fact that in evidence she said that she had returned to her residence at about 10 p.m. whereas she had told the police that it was at about 11:30 p.m.  Cross-examination, in the context of the facts in this case, on a disparity of that sort was, with respect, silly and unrealistic.

12.Similarly unfruitful and unrealistic was extensive cross-examination about the fact that in evidence she said that she heard the applicant say to the group of ten “chop him” (in reference to Tsang as the intended victim), whereas she did not refer to that oral order in her written statement to the police.  The judge intervened to point out that although in the witness statement there was no reference to the words used by the applicant, Ms Li had expressly asserted in her witness statement that the applicant pointed the group’s attention to the intended victim, the clear implication being that he was inviting the group to attack that victim.  Cross-examination that seeks to make capital of a distinction which is, in its effect and in context, a distinction without a difference is not realistic cross-examination.

13.It is suggested before us that in cross-examination Xu was coy about the telephone conversations which he had with the applicant that evening.  So he was, but a realistic reading of his evidence demonstrates that the fact of the telephone conversations was clearly not in issue, and we fail in the event to see how this coyness could, in the context of the evidence as a whole, assist this applicant.

14.As for some discrepancies between the testimony of one witness and that of another, they were to be expected, given the nature of the events on the evening in question and given further that at least two of the prosecution witnesses gave evidence to the effect that they had been the worse for drink, and one of them had considerable difficulty in understanding what everyone was saying that evening, because he did not speak the language.  Other pieces of evidence were telling; for example, Xu’s evidence that the applicant was not himself carrying a weapon.  Had he wished to make false allegations against the applicant, as was suggested in cross-examination, he could easily have added such an assertion for good measure.  Tsang was a close colleague of Xu and had the prosecution been a concoction between the prosecution witnesses to land the applicant in trouble, one might have expected Tsang to identify the applicant as one of the persons present at the attack upon him, yet he did not do so.  It is said that there were differences as to who was standing where immediately before the attack started.  We have taken this submission into account and we think that the complex factual situation that prevailed renders this point one of insufficient significance.

15.The judge accepted the evidence of the prosecution witnesses as to the central facts.  He had been addressed in detail by defence counsel on the suggested discrepancies and the judge noted that :

“Naturally, there were differences in the details of their respective accounts of events in question, as is only to be expected when five different people are asked to describe a set of events which they were caught up in, at various times, to different degrees in slightly different circumstances from each other.  This is especially so, bearing in mind the somewhat chaotic and fast-moving nature of events once the violence had started in the course of which PW1 to 3 were each quite seriously chopped.  The prosecution witnesses corroborated each other in various significant respects, and the salient points of the events in question emerged very clearly from the prosecution evidence as a whole.”

16.The judge noted that Ms Li’s evidence as to what she told the police when they were called on the afternoon of 3 August was “hopelessly conflicting and clearly unreliable for reasons which it would be otiose for me to burden this judgment with, but appear to relate to her immigration status in Hong Kong at this time”.  In his written submission, which he has adopted in oral argument, Mr Acton-Bond says that the judge has it wrong in suggesting that the conflict related to her immigration status.  Whilst it is clear that there was a problem with her immigration status which she mentioned, the real explanation for her inconsistent account of the events on the afternoon of 3 August is the one we have mentioned, namely, her regret at the time that she had called the police.  This is an explanation that rings entirely true and the fact that the judge has concentrated upon another possible explanation does not assist the application. 

17.There were other discrepancies to which the judge made express reference in the Reasons for Verdict but we need not deal with them save to comment that the Reasons as a whole, as well as the transcript of evidence, show that the judge had each and every discrepancy well in mind.  More importantly, we are satisfied that his analysis of them and of their effect was realistic and sensible and we do not for a moment agree with the suggestion that the discrepancies have been accorded insufficient weight by the trial judge.

Conclusion

18.In our judgment, there is no merit in this application and it is accordingly dismissed.

Mr Jonathan Acton-Bond and Mr Job, Mak Kin Ming instructed by Messrs Vincent T K Cheung, Yap & Co. for the Applicant

Mr David Leung, SPP, of Department of Justice for the Respondent