HKSAR v. Cheng Hung Kwong and Another

CACC138/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 138 OF 2009

(ON APPEAL FROM DCCC NO. 1038 OF 2008)

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BETWEEN

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Before : Hon Stock VP, McMahon and Barnes JJ in Court

Date of Hearing : 24 November 2009

Date of Judgment: 24 November 2009

Date of Handing Down Judgment: 3 December 2009

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J U D G M E N T

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Barnes J (giving the reasons for judgment of the Court) :

1.The 1^st Applicant (“D1”) and the 2^nd Applicant (“D2”) each faced two counts of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212, the particulars of which alleged that they, together with other persons, wounded Lam Chung Yee (“PW3”) and Lam Choi Kam (“PW4”) at Tai On Building on 8 January 2008.

2.The trial took place before Deputy District Judge Johnny Chan. D1 pleaded guilty to charges 1 and 3 while D2 was convicted after trial of charges 2 and 4. The judge adopted a starting point of 21 months for all 4 charges. D1 was sentenced to 14 months imprisonment for each of charges 1 and 3, both sentences to run concurrently. D2 was sentenced to 21 months imprisonment for each of charges 2 and 4, both sentences also to run concurrently.

3.D1 sought leave to appeal against the sentences while D2 sought leave to appeal against the convictions and the sentences.

4.We dismissed both applicants’ applications at the hearing and indicated that we would give our reasons at a later stage, which we now do.

THE PROSECUTION CASE

5.The prosecution case was that PW3 and PW4—a husband and wife team—operated a small shop selling cooked-food at shop 17B on the ground floor of Tai On Building (“the shop”). On 7 January 2008, a group of men gathered outside the shop around 10:00 p.m. and they later exhibited disturbing behaviour towards the couple. Police were called but the group dispersed before the police arrived. After the police had gone, sometime after 1:00 a.m. on 8 January, the group returned and a man identified as Li Fook Ming (“Ah Ming”) scolded PW3 and PW4 and told them not to open their shop the next day. Ah Ming then left with the group and a report was again made to the police. At about 3:30 a.m., the group again returned. This time three men (including one called “Tai Tau Chai” and D1) entered the shop while D2 remained outside. “Tai Tau Chai” scolded PW3 and told him not to open the shop the next day. PW3 agreed. Another man (“D1”) tried to pull down the roller gate of the shop. Feared of being trapped inside and being beaten, PW3 dashed out of the shop. Outside the shop, D2 approached PW3 and was pushed away by the latter. PW3 was chased and beaten up.

6.PW4, in the meantime, followed her husband and also rushed out of the shop. She was restrained by D1 and hit on her nose by another man.

7.PW3 managed to get away and made a report to the police. He returned to the building with the police and pointed out D1, who was still outside the building, to the police.

8.CCTVs installed in the vicinity captured the movements of the people involved and we viewed the relevant segments at the request of both parties :

8(a) From 23:46 hours on 7 January to 00:13 hours on 8 January, D2 was seen together with Ah Ming and another man (in dark garment) in the vicinity of the shop. The group was at a table placed between shop A15 and shop 17A (as shown on the sketch exhibitP4). D2 did not remain at the seat constantly, but moved about and returned to the seat from time to time. Another unknown man came and sat on D2’s vacated seat at times. D2 followed Ah Ming and left the building at 00:13 hours.

8(b) From 01:46–01:49 hours, CCTV footage showed Ah Ming, D1, the man in dark garment seen earlier, and another 3 men arrived outside the shop. Ah Ming and some of the men went inside the shop and later came out. They appeared to act in an aggressive manner and another shorter man (identified as the proprietor of the shop next door, shop 17A) appeared to intervene. That was the time when, according to PW3’s testimony, Ah Ming scolded him. D2 was not present on this occasion.

8(c) From 03:42–03:49 hours, D2 was seen following 3 men to enter the building. (It is common ground that D2 had not re-entered the building after leaving with Ah Ming at 00:13 until 03:42.) D1 and the man in dark garment were among this group while Ah Ming was not there. The group of 3entered the shop while D2 stayed outside, looking into the shop frequently. That was the time when PW3 testified that “Tai Tau Chai” scolded him. The 3 men came out briefly and again entered the shop. This time, according to the evidence of PW3, D1 tried to pull down the roller gate. PW3 was seen bursting out of his shop and collided with D2, who was standing right outside the shop. D2 gave PW3 a push. PW3 ran towards the exit of the building and was chased by two men. D2 also ran after PW3 initially, though he slowed to a fast walk. He also went towards the same exit and left the building. In the meantime, PW4 was seen rushing out of the shop and was restrained by D1.

9.Both PW3 and PW4 were assaulted and wounded, though the injuries sustained were not too serious. PW3 suffered from redness, swelling, abrasions and laceration over various parts of his body, requiring one suture on his thigh. PW4 suffered from a laceration on her nose and an abrasion on her inner upper lip.

10.The prosecution case against D2 was one of joint enterprise.

THE DEFENCE CASE

11.D2, who gave evidence, did not dispute that he was present outside the shop when 3 men entered the shop at around 3:30 a.m. He testified that on 7 January he had a business chat with a restaurant owner (DW2) through the introduction of Ah Ming. After the successful talk, he agreed to continue drinking with Ah Ming at Tai On Building. He drank beer at the table in the vicinity of the couple’s shop with Ah Ming and the proprietor of the adjacent congee shop. Though Ah Ming talked to others who joined the table from time to time, he had nothing to do with such talks. He left the building with Ah Ming and went to another place to drink. He felt so unwell after drinking too much that he vomited. As both he and Ah Ming lived in the New Territories and they had gone to the business talk together, he wanted to return home together with Ah Ming. Despite asking Ah Ming to leave on more than one occasion, Ah Ming was not ready to leave, saying they would sit for a bit longer or to have a few more beers. Consequently D2 hung around for hours while feeling ill. During that time, D2 saw 7–8 people sitting with Ah Ming at the table, talking to him. D2 did not know these people.

12.Then came a time when the group went into Tai On Building to look for some food before leaving. D2 followed these people and saw 3 men enter the shop. He saw one of the men speaking to PW3, though he could not hear what was said due to a ringing sound in his ears and the presence of a plastic sheet at the doorway of the shop. He did not enter the shop as he could see no food was being served inside. By this time he had lost sight of Ah Ming but he could not call him as the battery of his mobile phone had gone dead. Later PW3 dashed out of the shop and was chased by the men. PW3 collided with D2 outside the shop. D2 instinctively pushed PW3 away and ran after PW3. As D2 became frightened so he also ran out of the building. He took public transport to go home. D2 was later contacted by Ah Ming who told him to contact the police, which he did.

13.The defence case was that D2 was an innocent bystander who did not take part in the assault and had no idea that was going to happen when he was in the vicinity of the shop.

14.DW2 confirmed D2’s version that there was a business talk on 7 January and that they drank beer and red wine during dinner.

GROUNDS OF APPEAL (ON CONVICTIONS)

15.Mr James McGowan, counsel for both applicants, advanced two grounds of appeal and submitted that the convictions were unsafe and unsatisfactory.

16.The first ground was that the judge erred in finding beyond reasonable doubt that A2 was engaged in a joint enterprise to wound the couple; and the second ground was that the judge had entered into the arena by questioning witnesses including A2, qua advocate instead of qua judge.

(1)  Joint enterprise

17.In his written submission supplemented by an oral submission, Mr McGowan made extensive references to various parts of the CCTV footage (which we viewed in court) to demonstrate how the images were consistent with D2’s version; in particular, how D2 was not a party to the conversation between Ah Ming and others, and how he was hanging around in the vicinity only.

18.We do not find it necessary to list out in detail Mr McGowan’s complaints. Suffice it to say that the main thrust of the argument was that on the evidence before the judge, an inference that D2 was acting in concert with the others was not the only irresistible inference to be drawn. Further, even if D2 were a party to the joint enterprise, such joint enterprise was merely to verbally threaten PW3 and PW4 to stop them opening for business the next day, and not to use force or physical violence against the couple. Mr McGowan thus submitted the convictions were unsafe and unsatisfactory.

19.We would add that Mr McGowan also prayed in aid the mistakes made by the judge in two areas. First, D2 did not say he was drinking alone with Ah Ming, and second, DW2 thought he was asked to point out Ah Ming when he failed to point out D2 in court.

20.Whether DW2’s failure to point out D2 in court was due to his misunderstanding of the question or inability to recognise D2 is neither here nor there. On the evidence he and D2 only met for the first time on 7 January. It does not matter whether D2 and Ah Ming had the business talk with DW2 over dinner before they arrived at Tai On Building. The only issue before the judge was whether D2’s presence was purely co-incidental as an innocent bystander, or a party to the joint enterprise.

21.The judge correctly related D2’s evidence as to the presence of the operator of the adjacent congee shop drinking beer with him and Ah Ming at the table not far from the shop, but the judge later appeared to have made a mistake when he said D2 testified he only drank with Ah Ming. We do not find this mistake of importance. D2 was not merely drinking with Ah Ming and the proprietor of the adjacent shop in any event. Two others persons had come and joined the table during that time.

22.We had the benefit of viewing parts of the CCTV footage which the judge also viewed. While D2 did appear to be walking about when different persons joined the table of Ah Ming around midnight and was not present when Ah Ming went with 5 other men and threatened PW3 sometime after 1:00 a.m., the way D2 stayed close outside the shop at a later time when 3 men had gone inside the shop; the way he paid constant attention to what was happening inside (and we did not see any plastic sheet at the doorway of the shop as D2 alleged); and the way he initially joined the chase of PW3 after PW3 pushed him away, are matters which do not point to an innocent bystander simply hanging around. D2’s story of how he was feeling unwell and yet waited around for hours when he could have gone home without Ah Ming did not sound credible. It was clear from the footage we saw that he was well in control of himself, was able fully to act independently, and could come and go as he pleased. His explanation of how and why he came to be outside the shop when the 3 men had gone in again was not a credible one.

23.On the evidence before the judge, in particular the CCTV footage showing D2’s participation when the 3 men entered the shop to threaten PW3, the judge was entitled to disbelieve D2’s unlikely story of how and why he waited around in the vicinity of the shop for hours, how and why he came to be outside the shop and later chased after PW3. The judge was entitled to draw the only irresistible inference that D2 was indeed acting in concert with the group, of which Ah Ming was the leader, to threaten the couple. We would have drawn the same inference upon the factual findings of the judge. D2 was not merely an innocent bystander.

24.We find it unrealistic to say that the joint enterprise only involved the use of oral threats and did not include any physical personal violence. Clearly, in order to back up the oral threats, a natural consequence is to use physical force as may be required to strengthen the threat.

25.There was no merit in this ground.

(2)  The judge had entered into the arena

26.Having considered the relevant parts of the transcript identified by Mr McGowan in his written submission, we are unable to agree that the judge had entered into the arena qua advocate instead of qua judge as alleged.

27.The judge intervened primarily to (a) remind counsel of what the witness had said when the question put by counsel misrepresented the evidence given; (b) clarify matters raised during the trial, in particular when the evidence given in court did not totally tally with the CCTV footage; and (c) remind the witness to answer the question and not to go astray.

28.Although there were quite frequent interruptions at some stages, the judge did not cross the permissible boundary.

29.This ground also failed.

GROUNDS OF APPEAL (RE SENTENCE)

30.Mr McGowan submitted that the judge erred in saying that this case had “every flavour of a triad attack” when there was no triad-related utterance. He submitted that the two cases referred to by the judge were much more serious than the present case and a starting point of 21 months was too high.

31.The judge made reference to the cases of HKSAR v Ip Chong Fun and another, CACC502/1995 (a case involving persons claiming to be triad members and attacking a family member of a family-run noodle shop with a broken beer bottle, fists and kicks), and HKSAR v Clifford Martin Frank, HCMA1113/2001 (a group attack on two bar patrons with wooden pole, stool, fists and kicks).

32.Mr McGowan submitted the facts of Ip Chong Fun were much more serious and there was no triad-utterance in the present case. Regarding the case of Clifford, Mr McGowan submitted that the judge accepted the facts there were much more serious than the present yet imposed a sentence 3 months higher than the sentence imposed in Clifford.

33.Submitting that the present case was in essence one of criminal intimidation, Mr McGowan cited the sentences imposed on the defendants in several cases.

34.The cases cited were of limited assistance. The present case was not merely an instance of an assault, nor merely an insistence of criminal intimidation. As is evident from the CCTV footage we saw, this was an ugly affair of a group of thugs bullying innocent people and coming back several times over a period of hours, threatening them at close quarters; and when the victims—one of them a woman—sought to escape the group of thugs who closed in on them, they were pursued and assaulted. The absence of any express triad claim makes, in these circumstances, little difference. This was a gang clearly employed to bring home a highly intimidatory message. It is wholly unacceptable for innocent people minding their own business and trying to earn an honest livelihood to be bullied in this way and such conduct calls for deterrence.

35.A starting point of 21 months for each charge, in all the circumstances of this case, was neither manifestly excessive nor wrong in principle.

36.Mr McGowan further submitted that though as a general principle D1 and D2 should receive the same sentence as party to a joint enterprise, each applicant deserved a reduction.

37.A particular matter drawn to our attention in relation to D1 did not amount to material mitigation. He pleaded guilty to both charges and was given the full one third discount by the judge. We saw no reason to further reduce his sentence.

38.In the case of D2, his criminal record is indeed not as bad as A1’s, this being the point pursued on his behalf. However, neither applicant was sentenced on their previous criminal convictions. We already said that a starting point of 21 months was proper for each of the charges. D2 was convicted after trial. There are no exceptional personal or family circumstances to warrant a reduction of the sentence.

39.For these reasons, we refused D1’s application for leave to appeal against the sentences imposed, and D2’s application for leave to appeal against the convictions and sentences.

Miss Sin Pui Ha Mary, SADPP, of the Department of Justice, for the Respondent.

Mr McGowan James H.M., instructed by Messrs Tang, Wong & Cheung, (D.L.A.), for the Applicant.