Leung Kwok-tung and Another v. Leung Chi-yuen
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CACC000755/1980 A. Huggins (Laurence Pang & Co.) for both appellants. T. Gall for Crown/Respondent.
----------------- Coram: Sir Alan Huggins, V.-P., Leonard, J.A. and Silke, J. Date of Judgment: 10th March 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. The 1st Appellant (1st Defendant) appeals with leave against two convictions, the first of having assaulted a dance hostess on 18th April 1980 occasioning her actual bodily harm and the second of having assaulted a detective police constable on 28th April 1980. The 2nd Appellant (4th Defendant), also with leave, appeals against two convictions, the first of possession of an offensive weapon on 28th April 1980 and the second of having assaulted another detective police constable on the same date. 2. Originally, there were four defendants and altogether ten charges, in some of which two of the defendants were jointly charged. The 1st Appellant was charged, in addition to the two charges on which he was convicted, with blackmailing the hostess on the 28th April 1980. Of this he was acquitted. The 2nd Appellant was acquitted on one other charge, that of assaulting yet another police constable (9th charge). The 2nd and 3rd Defendants faced various allied charges, either of blackmailing the hostess or assaulting detective police officers. 3. The record indicates that unfortunately the case was neither presented nor tried with the care for which one would hope. On the first charge the learned judge said that the alleged victim refused a request for money and claimed that the 1st Defendant struck her in the left eye. Complaint is made that the judge went on:
where an injury to her eye was seen. With all respect to him, it was not so supported. The only part of that evidence which was supported was that the victim had been struck in the left eye: the suggested connection with the 1st Defendant - which, of course, was most prejudicial - was just not there. We find nothing in the first and the third grounds of appeal on this charge, but there is some substance in the fourth ground, which complains that the judge refused to accept the hostess's evidence of a threat whilst accepting her evidence of a blow, for, on the submission of no case to answer, the judge said that there was no evidence of a threat, whereas in truth there was evidence. That, of course, was, in that context, favourable to the accused, but it is argued on behalf of the appellants that this is indicative of the lack of care with which the evidence was reviewed by the learned judge. 4. The fifth ground relates to the evidence of a woman called LAU Ming that the hostess had swollen lips on that night, and the suggestion clearly was that she might have been subjected to an assault other than that alleged in the first charge. The alleged victim was seen by a doctor, who did not mention having seen any swollen lips. Miss Lau was not examined or cross-examined as to the time and place at which she saw the victim and the matter was left uncertain. All that is necessary to say is that the possibility of a different assault was not properly investigated and we are not satisfied that this conviction can safely stand. 5. As to the fifth charge - that of 1st Defendant's assaulting Detective Constable 9017 - we have been taken through the evidence in some detail and there are clearly discrepancies between the witnesses. The result, it has been submitted, is that the evidence was not sufficiently reviewed. It is possible that the 1st Defendant was the person who kicked the constable. On the other hand, it is by no means certain that he was. As one of the matters which was unsatisfactory in the trial it must be mentioned that the defence produced a photograph showing the 1st Appellant and the 2nd Appellant handcuffed together. This photograph was never proved. We do not know at what point of time it was taken, even if it was a genuine photograph. Had it been properly proved, no doubt questions would have been asked as to whether or not the position of the handcuffs which are shown in that photograph as being on the left arms of both the 1st and the 2nd Defendants had been altered from the time the handcuffs were first put on. This also was considered by the judge nor were the apparent discrepancies. We cannot think that it is possible to save that conviction. 6. The only matter which has caused us any real difficulty has been the fourth charge against the 4th Defendant, of possession of an offensive weapon. There were two witnesses who clearly stated that the 4th Defendant was in possession and there was supporting evidence from KAN Kin-kwok which was in some respects conflicting but which was not fully reviewed. One of the constables whose evidence was accepted (D/P.C. 12702) was not considered to be sufficiently reliable to justify a conviction on the tenth charge, which was another charge of assault with that particular weapon. The witness KAN Kin-kwok, whose evidence was at times relied upon by the judge, has been shown since the trial to have been a person who was by no means an independent witness, he having been convicted in 1974 of an offence of possession of an offensive weapon and sentenced for that offence to six months' imprisonment and for another offence to four months' imprisonment consecutive. 7. The only other evidence against the 2nd Appellant on the charge of assaulting D.P.C. 11647 was that of the alleged victim. Having considered the matter with some anxiety we think that it would not be a foregone conclusion that D/P.C. 11647 would necessarily have been believed had he stood alone and had the case been fully investigated. This conviction also is, therefore, unsatisfactory. 8. We do not think that it would be proper here to apply the proviso. This was a case where it would have been desirable that there should be a retrial but, quite clearly, having regard to the nature of the evidence, a retrial is out of the question. 9. The appeals of both appellants must be allowed, the conviction quashed and the sentences set aside. 10th March 1981. Representation: A. Huggins (Laurence Pang & Co.) for both appellants. T. Gall for Crown/Respondent. |