The Queen v. Wan Ka Ming

CACC000069/1988

BETWEEN

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Coram: Hon. Power, J.A., Liu & Macdougall, JJ.

Date of Hearing: 4th August 1988

Date of Judgment: 4th August 1988

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J U D G M E N T

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Power, J.A.:

1. The applicant in this matter was convicted after trial of five charges of malicious wounding and sentenced to 2?years on each charge to be served concurrent. He now seeks leave to appeal against that conviction but has abandoned an application for leave to appeal against sentence.

2. The Crown case was that on 23rd June 1987 the five victims while having a meal at the Flourishing Hot Pot Restaurant were attacked and chopped by about eight assailants, a number of whom were armed with knives, who then after the attack left the restaurant, boarded a vehicle in Saigon Street and made good their escape. Among those who were attacked were two brothers LEE Yan-yeuk and LEE Yan-tak. They were the only victims of the attack to give evidence as to the facts of the attack. The facts generally had been agreed but of course there was no agreement as to the identity of the attackers. LEE Yan-yeuk said that he could recognize two of the attackers and he also said that he knew the applicant. But he did not identify him as being one of the persons present on that evening. It is important to be accurate with regard to what he did say which was:

"I don't know whether he was present, it was very confused."

3. His brother LEE Yan-tak said that he recognised two of the attackers and he said also that the one at the door who directed the attack was the applicant. He said, as indeed had his brother said, that he had known the applicant before this incident. The applicant gave evidence denying that he had ever been present at the scene.

4. The trial judge made the following finding in his Reasons for Verdict:

"The attack on the victims was not disputed. The only issue in this case is whether I accept PW2's evidence of identification of the 2nd Defendant.

I have observed the demeanour of the witnesses. It struck me that PW1 and PW2 were truthful witnesses. PW1 did not say he recognized or noticed the presence of the 2nd Defendant but PW2 positively identified the 2nd Defendant in considering the evidence of PW2 I was extra careful because I was aware during cross-examination that he had a string of previous convictions. Having put myself on guard as to his previous convictions I still come to the conclusion that he was frank in his evidence and that he was not shaken in cross-examination. I am satisfied that he has told the truth and positively identified the 2nd Defendant as the one who stood at the door and ordered the attack."

5. Mr. Mayne who appears for the applicant attacks this finding in his Grounds of Appeal contending that the learned trial judge gave undue weight to his finding that the two brothers were telling the truth, and that he failed to give sufficient consideration as to whether the second witness was not only truthful but also accurate in his evidence. His attack rests to a very large extent upon the basis that the trial judge failed to distinguish between a truthful witness and an accurate witness. He suggests that the trial judge's reasoning in this regard is apparent in the passage which I have just read where he said:

"I am satisfied that he has told the truth and positively identified the 2nd Defendant as the one who stood at the door and ordered the attack."

He suggests that the learned trial judge in that sentence made an illogical and wrong jump from a finding of truth to a finding of accuracy. We are not persuaded that that is so. It is clear that the trial judge made a careful examination of all the evidence and we cannot accept that he fell into the error suggested by Mr. Mayne.

6. It is further suggested that the fact that LEE Yan-yeuk who knew the applicant, as did his brother, did not see the applicant at the scene when he was in a good position to do so, should, of itself, have occasioned the trial judge to entertain some doubts as to the correctness of his brother LEE Yan-tak's evidence. Mr. Mayne has referred us in detail to the evidence in support of this submission and he suggests that the trial judge failed to make the careful assessment he should have of that evidence it is his submission that the evidence is on its face suspect and unreliable. It cannot, however, be said that the trial judge was unaware of this difficulty. Indeed he dealt with it at some length when he said:

"It has been suggested that both PW1 and PW2 had equal opportunities to observe the attack and yet P.W.1 did not say that the 2nd Defendant was there. If the 2nd Defendant was there then PW1 could be able to recognize him. Doubts in the circumstances must have arisen. I have also directed my mind to this point when assessing the evidence of the witnesses. I am satisfied that the attack was sudden and the victims who were having their meal then were not prepared for theattack. The situation was chaotic and very confused. Different people have different perception of what was heard and what was seen or and reacted differently it was not surprising if PWl was not aware of the presence of the 2nd Defendant. After all when he was suddenly confronted with knives wielding attackers would he not first of all try to protect himself and get away from it rather than looking further away to see who were present at the door. In the circumstances the inability to identify the 2nd Defendant by PW1 in my view was attributed to his perception of facts rather than the absence of the 2nd Defendant."

7. This is, clearly, a careful assessment of the situation. The trial judge had been addressed upon it by counsel, as revealed from his notes. He directed his mind towards it and came to the conclusion which appears in the passage I have just read.

8. As to the evidence of the applicant he said:

"The 2nd Defendant on the contrary was not a convincing witness. I did not " find his evidence to be reliable. His alibi was not supported nor corroborated if it lacks credibility. His evidence of reading the newspaper also lacks credibility. The newspaper did not print the full names of the victims. He said he arrived at the cookfood stall at about 7.30 p.m. and left at about 10.30 to 11.00 p.m. It was an extraordinary long dinner in a cookfood stall. Having considered his evidence in detail I reject his evidence."

9. We are in this regard unable to fault either the reasoning of the trial judge or his findings based thereon. He, and he alone, was in a position to make an assessment as to the credit of the witnesses who appeared before him. He was clearly entitled to believe the evidence of the two brothers and to reject wholly the evidence of the applicant in which an alibi was raised.

10. The matters that had been canvassed by Mr. Mayne were, it must be said with respect to him, essentially matters for the evaluation of the trial judge and we cannot fault the way in which he resolved them. There is nothing to occasion us any doubt that this conviction was safe and satisfactory and the application to appeal against conviction must therefore be refused.

Representation:

Mr. I.G. Cross (Crown Prosecutor) for the Respondent.

Mr. Ronald E. Mayne (M/s Poon & Dissanayake) for the Applicant.