HKSAR v. Kwong Ching Wai and Others

HCMA154/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 154 OF 2009

(ON APPEAL FROM TWCC 1226 OF 2008)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 15 December 2009

Date of Judgment : 8 January 2010

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J U D G M E N T

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1.The three appellants were convicted after trial in Tsuen Wan Magistracy before Mr J.T. Glass of a joint offence of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212. Each was sentenced to 6 months’ imprisonment and each now appeals his conviction.

2.The prosecution case was that on 22 October 2007 the victim (“PW1”) was in his friend’s flat in Kwai Chung when the appellants (“D1”, “D2” and “D3”) came to the door and were allowed in. D2 alleged that PW1 had in some way betrayed them to the police about some matter and then commenced to move towards PW1.

3.PW1 had been apprehensive about the appellants for some time and had taken the precaution of bringing a sheathed knife to his friend’s flat as protection and had located it beside the sofa where he was sitting at that time. When D2 came towards him PW1 took out the knife from where it was hidden and held it by the sheathed blade. D2 grabbed PW1 by the neck and pulled the knife from PW1’s hand, in the process pulling the knife from its sheath and cutting PW1’s hand.

4.D2 then hit PW1 above his left eye with the handle of the knife several times. Then D2 and D1 punched and kicked PW1 a number of times on his head and other parts of his body. In the meantime D3 grabbed PW1’s friend (who became PW2 at trial) and restrained him.

5.Following that, all three appellants left the premises. Subsequently, once aware of the investigation they each surrendered themselves to the police, were arrested and charged.

6.PW1 was found to have suffered various abrasions, cuts to his hand and a cut to his forehead.

7.Ms Judy Ma, who represents all appellants, advances a number of grounds of appeal. All grounds are common with the exception of the final ground relating only to D3. They are summarised and renumbered as follows :

(1)  The magistrate failed to give sufficient weight to improbabilities in PW1’s evidence.

(2)  The magistrate’s findings were inconsistent or in error in respect of :

(a)  PW1 being rendered unconscious by the attack;

(b)  PW1 having taken dangerous drugs prior to the attack; and

(c)  his finding that PW1’s treating doctors would have noticed had he taken drugs prior to the attack.

(3)  The magistrate wrongly rejected the defence of self-defence.

(4)  The magistrate erred in finding D3 acted in concert with D1 and D2.

Ground 1(all appellants)

8.Ms Ma says it is improbable for a person such as PW1 to have taken a knife to a friend’s place (i.e. PW2’s flat) simply because he was “worried” about being attacked as a result of a quarrel he had had with D2. It was PW1’s further evidence that he had “stored” that knife at PW2’s premises some days earlier as a precaution, and Ms Ma says that is even more improbable, particularly in view of the fact that PW1 was apparently prepared to travel unarmed to the premises simply to chat with PW2 in circumstances where he said he had been threatened on the phone the day previously.

9.However PW1’s evidence was that he was worried about D2 potentially attacking him after an earlier argument. D2 (and D1 and D3) were friends or associates of PW1 and PW2 and knew where PW2 lived and were able to locate PW1 there as PW1, apparently to their knowledge, spent some time with PW2 as they also were friends. In those circumstances, in the context of the evidence as a whole, this evidence is not so improbable as to be fatal to the prosecution case.

10.Ms Ma makes other complaints under this ground. She says there was no evidence that PW1 was attacked, and so he had no reason to take out the knife; but that is not quite correct as PW1’s evidence was that D2 “rushed” or “dashed” towards him. Ms Ma asserts also that if PW1 was assaulted as he alleged with feet and fists he would have been seriously injured; the answer to that is that PW1 suffered bruising to the brain, various abrasions and other bruises and a cut above the eye. She asserts also that PW1’s evidence that he saw D3 grab PW2 was unbelievable as PW1 was being attacked at the time; but it seems to me that a person such as PW1 would be aware, in a general sense, of what the others in the room were doing even if he was in a struggle with D1 and D2.

11.In short I do not think there is sufficient substance in this ground so as to cause me to disagree with the magistrate’s conclusions. Given this appeal was a rehearing I should add that I accept the credibility of PW1 in this regard. He was obviously subjected to a severe beating. His injuries are consistent with what he said happened and there can be no realistic explanation of his head and other injuries other than that he was beaten “by fists and kicks” as he alleges. None of the appellants were injured. Those facts strongly support the magistrate’s findings and his acceptance of PW1 as a credible witness.

Ground 2 (all appellants)

12.By this ground Ms Ma complains of the magistrate’s findings in two specific respects. She firstly says the magistrate was wrong in finding PW1 had been rendered unconscious by the attack upon him.

13.In this regard the magistrate had said in his Statement of Findings :

“8.  It was suggested that PW1’s memory was poor and that the neurologist’s medical report supported this fact.  I noted in this respect that the doctor said PW1 had transient loss of consciousness from the incident for an unknown period and he had poor recollection of the details.  I found this doctor would have seen PW1 very soon after his admission to the hospital given PW1’s history of unconsciousness.  I considered this apparent inconsistency carefully, but found that PW1, who had just suffered from an attack rendering him unconscious, might well be in such a condition when seen by the doctor immediately after the incident, but once he had had time to recover the actual happenings of that night could become clear in his mind.  I found in conclusion that I was satisfied beyond reasonable doubt that PW1 was clear in his mind when giving his evidence and that I could rely upon it.”

14.The complaint is that there was no evidence from PW1 that he was at any time unconscious and that the magistrate’s finding was simply wrong. The complaint seems somewhat counter-intuitive because if Ms Ma were able to establish the magistrate was wrong in finding that PW1 had lost consciousness, it is difficult to see how that would adversely impact upon PW1’s reliability as a witness.

15.In any event, with respect to the argument advanced, it is quite clear that the magistrate was concerned about that part of the medical report produced at trial of Dr Ling Ka Kin of the neurosurgery department of Princess Margaret Hospital which referred to PW1 having “suffered a transient loss of consciousness for an unknown period and had poor recollection of the details [of the attack]”. The issue which this finding concerned was the reliability of PW1’s recollection of the events leading up to and during the attack upon him. The conclusion of the magistrate, after considering the contents of Dr Ling’s report, that he could nevertheless rely on PW1’s evidence was reasoned and sensible. The criticisms of the magistrate in regard to this aspect of his findings are not sustainable.

16.The second complaint made under this ground has a somewhat firmer basis; the finding complained of is this :

“12. I was not impressed with D2’s evidence and I found I did not believe he was telling the truth and I rejected his evidence when it conflicted with PW1’s evidence.  I found that he had gone to the flat with D1 and D3 in order to directly confront PW1 about his suspicions and I rejected his evidence that he had gone to simply have a drink and a chat.  I also rejected his evidence that PW1 was taking ice at the time of their arrival, and I rejected his evidence of how he said the incident had occurred.  I found that he and D1 and D3 had done as PW1 said.  I also disbelieved his explanation for trying to get the knife from PW1 because he did not know if the young people had left the flat, and because he thought it was easier to do so than to retreat.  I found on his evidence PW1 was in a hazy condition due to the drugs he was taking and I found he therefore knew that PW1 was not behaving normally.”  [Emphasis added]

17.The italicised findings appear to be in conflict, and Mr Tso’s (for the respondent) attempted rationalisation of the inconsistency, so far as I understand it, on the basis that the magistrate was simply attempting to comment on the evidence of D2, sits awkwardly with the terminology used by the magistrate. I accept for the purposes of this appeal that the findings were inconsistent. Where then does that leave matters? This appeal is a rehearing : see HKSAR v Chou Shih Bin (2005) 1 HKLRD 838 at paragraphs 17 to 19 and in my view I am “at large” in this regard and can arrive at my own judgment. On that basis I do not think the inconsistency matters. The issue as to whether or not PW1 had consumed drugs prior to the attack upon him went logically to the question as to the reliability of his recollection of events. But there was no evidence as to what amount of any drug, according to D2 or any other witness PW1 had taken, or whether PW1 was in any way incapacitated. The consumption of drugs or alcohol by witnesses in cases involving violence is far from uncommon and, while it is a relevant factor in assessing the credibility of the witness, without some evidence of the quantity consumed, or the time spent in consumption, or evidence as to any incapacitating effect of that consumption being led before the court, the mere fact of evidence of some consumption of drug or alcohol can have very limited weight on the assessment of the witnesses reliability. In the circumstances of the present case PW1’s evidence of what occurred was detailed and coherent and the real issue was not whether he confused events which formed the elements of the offence, but whether he was telling the truth. In my view the credibility of PW1 was not in any substantial sense reduced by any assertion by D2 in his evidence that PW1 had consumed “ice”. In any event I agree with the magistrate’s assessment of the credibility, or lack of it, of D2. That being so D2’s assertion that PW1 had taken drugs has no weight and in the absence of any independent evidence to that effect means PW1’s credibility remains unaffected by this aspect of the evidence and the apparent contradiction in the magistrate’s findings. I should add that I agree with the magistrate’s general assessment as to PW1’s credibility, and for the reasons he has otherwise given.

18.Ms Ma also argues that the magistrate was wrong to have said in his Statement of Findings :

“9.  I noted that neither of the doctors made any mention of PW1 suffering from drug withdrawal symptoms when they examined him. I believed that doctors would have noticed if PW1 had recently consumed a dangerous drug like ice and I found they would have mentioned it in their reports.”

19.I agree with Ms Ma that this finding does go too far inasmuch as there was no evidence as to whether any drug or toxicological test had been performed on PW1, or whether he was an addict who would have displayed drug withdrawal symptoms during his one‑day stay in hospital. Nevertheless I do not see that this finding of the magistrate has any great bearing on the credibility of PW1, and so far as this is a rehearing I am satisfied that his conclusion as to PW1 being a credible witness is correct even when the particular finding complained of is set aside.

20.This ground fails.

Ground 3 (all appellants)

21.The first complaint under this ground is that the magistrate wrongly rejected the defence of self-defence so far as the appellants’ cases were concerned. Ms Ma’s basic point is that it was common ground that PW1 was armed and none of the appellants had weapons, leading to the possibility that they were acting to defend themselves.

22.The magistrate’s finding, so far as self‑defence was concerned, was as follows :

“7.  I was impressed by PW1 and I found he was an honest and reliable witness and I accept his evidence even after reminding myself that he had brought the knife to the premises and had stored it in a sheath for protection as he anticipated trouble from the defendants. I found the medical evidence supported the injuries he had sustained. I also found that I was satisfied beyond reasonable doubt that he had simply picked up the knife and shown it to the defendants in an effort to prevent them attacking him. I, however, took note that his showing of the knife to the defendants could be interpreted as an indication that he was intended to use it to fight.”

and :

“14. I looked for evidence of self-defence, as I was aware it was a complete defence to the charge, which the prosecution had to disprove beyond reasonable doubt once raised. I also kept in mind that if a defendant had done an act in a moment of anguish that he reasonable and instinctively believed was necessary then this could support the defence. I found, however, that the prosecution had disproved self-defence for each defendant beyond reasonable doubt.”

23.I accept that the final sentence in paragraph 7 is ambiguous, and I will deal with that in a moment. But I should say immediately that in my judgment the balance of the evidence disproved self‑defence so far as the subsequent attack on PW1 with feet, fists and the knife handle was concerned. Once the knife was out of PW1’s possession he was subjected to a heavy beating. That was the only realistic conclusion on the evidence of the injuries to PW1’s head. There was then no room remaining for self‑defence so far as this later attack was concerned and I agree with the magistrate’s findings in this regard. But I do have some doubt as to whether the pulling of the knife from the hand of PW1 could properly be regarded as part of that attack. As the magistrate noted, PW1’s showing of the knife to the appellants could have been interpreted by them as an indication that he intended to use it to fight them. If that were so then D2 disarming PW1 could not be regarded as part of any attack upon him.

24.Even though the evidence of D2 had been rejected by the magistrate there was sufficient in the evidence of PW1 to give some weight to the defence case in this regard. PW1 had said that he had brandished the knife as D2 came towards him so as to “frighten” the appellants. The prosecution case had been summarised in the magistrate’s Statement of Findings as being :

“4.  The prosecution case very basically was that D1, D2 and D3 had entered the flat where PW1 and PW2 were located and alleged that [PW1] had tipped the police off and had betrayed them.  D2 then moved towards PW1 so PW1 grabbed the knife he had beside the chair and held it by its paper sheath in order to warn the defendants that he had such a weapon.  He had brought this knife into the flat for protection prior to this occasion.  However, D1 and D2 then dashed forward and D2 grabbed the knife out of PW1’s hand, cutting his hand as he did so, and then the handle of the knife was used to hit PW1 around his eye areas 3-4 times.  PW1 was also grabbed by his neck and fisted and kicked in the face.  PW1 noticed whilst he was being attacked that D3 was grabbing PW2.  The defendants eventually left taking the knife with them and then the police were called.  PW1 was sent to the Princess Margaret Hospital for treatment.”  [Emphasis added]

25.In my judgment D2’s actions in removing the knife from PW1’s hand could not be proven to have been part of an attack as opposed to a mere disarming of PW1. In this regard in my view the appellants are entitled to the benefit of the doubt. Nevertheless there is no doubt what next happened was an attack on PW1, and that during that attack he sustained a 2 cm wound on his forehead. That is the only basis upon which the conviction is sustainable.

26.This subsequent attack upon PW1 (during which he sustained the cut to his forehead) was always part of the prosecution case against the appellants and is capable of itself supporting the charge of wounding. Ms Ma argues that there was no evidence from PW1 as to how he sustained this injury and that there was therefore no sufficient proof that the injury was caused by the attack. With respect that is a completely unsustainable argument. PW1 said he was hit on his forehead above his left eye which was the location of the injury, and that he was hit there a number of times. That wound was significant, it was 2 cm long and the inference is overwhelming that it was sustained as a result of the attack by D1 and D2.

27.This ground therefore succeeds to the extent that the conviction is restricted to the wounding of PW1 which occurred after his disarming when he was struck on his head a number of times.

Ground 4 (D3 only)

28.By this ground Ms Ma argues that the evidence was insufficient to inculpate D3 in the joint enterprise to attack PW1. She relies particularly on the evidence of PW2 who said in cross‑examination that when D1 and D2 struggled with PW1, “it could be said” he and D3 tried to stop the fight, and in re‑examination, that at the time of the struggle D3 and he “wanted to stop him”. Subsequently upon the application of the prosecutor PW2 was treated as a hostile witness on the basis (amongst others) that his statement referred to D3 grabbing him, PW2, by the neck.

29.Ms Ma cannot call in aid PW2’s evidence in this regard. The magistrate had rightly rejected his evidence as having no credibility. That left PW1’s evidence. He said during the attack he saw D3 grabbing PW2. If that evidence was accepted, as in my view it rightly was in this case, then that was sufficient to bring D3 within the ambit of the joint enterprise to attack PW1. There can have been no other reason for D3 to grab PW2 during the attack other than to allow the attack upon PW1 to proceed without interruption.

30.This final ground also fails, and the appeal against conviction is dismissed.

Mr Simon Tso, SPP of the Department of Justice, for HKSAR

Ms Judy C.Y. Ma, instructed by Messrs Wong & Wong, assigned by DLA, for the Appellants