HKSAR v. Chan Man Chung

CACC000087/2000

CACC 87/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 87 OF 2000

(ON APPEAL FROM DCCC NO. 883 OF 1999)

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Coram: Wong JA, Keith JA and Stock J in Court

Date of Hearing: 31 August 2000

Date of Judgment: 31 August 2000

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. On 16 February 2000, the Applicant was convicted by Judge Whaley in the District Court on three charges of wounding with intent. He had pleaded not guilty. On the following day, he was sentenced to 41/2 years' imprisonment on each charge to run concurrently with one another. He now applies for leave to appeal against his convictions, his application for leave to appeal against his sentences having been dismissed on its abandonment.

The prosecution's case

2. As often happens, the incident which gave rise to the charges began with something trivial - a dispute over the right of way of two vehicles, one of which was a van delivering frozen meat in a village in the New Territories. PW1 got out of the van and asked the driver of the other vehicle to move back so that his van could pass. At that point, a group of people came out from a nearby restaurant. They threatened to beat PW1 up if he did not move his van. One of this group said that his name was Ah Ling and he claimed to be the tor tei for the neighbourhood, i.e. the local triad bully. PW1's van then gave way to the other vehicle and in due course the meat was unloaded.

3. PW1 then went to have supper with some friends of his. One of them was PW2. PW1 told them what had happened. PW2 thought that it would be prudent for PW1 to apologise to Ah Ling and his group, bearing in mind that PW1 would be delivering meat in the area in the future. Accordingly, PW1, PW2 and other friends of PW1 went to the restaurant at which Ah Ling and his group were. It had been agreed that PW2 would do the talking. PW2 apologised to Ah Ling and his group, and the apology was apparently accepted by Ah Ling. PW1 believed that the matter had been settled and that the incident was over. He was to be proved wrong.

4. PW1, PW2 and their friends then went for supper to another restaurant in the village. Not long after they had sat down and before they had even placed their orders, four or five people with beef knives rushed into the restaurant and attacked PW1, PW2 and their friends. PW1, PW2 and PW3 received serious chop wounds, and it was the attacks on each of them which constituted the three charges which the Applicant faced.

5. PW1's evidence was that the men had been led into the restaurant by Ah Ling. PW1 said that he had been chopped several times by Ah Ling and by one of the other men as well. PW2 also gave evidence that the men had been led into the restaurant by Ah Ling. He testified that he had been chopped by two of the men with knives but that Ah Ling had not been one of them. However, he added that he had seen Ah Ling running out of the restaurant, still holding a knife after he (PW2) had been chopped. At identification parades held about three weeks later, PW1 and PW2 both identified the Applicant as Ah Ling.

6. Two other witnesses claimed that the Applicant had been involved in the attack. PW6 had joined PW1 and PW2 at the restaurant. He had not been present at the original row over which vehicle should have had right of way or at the meeting at which PW1's apologies had apparently been accepted. He testified to having seen about four people rushing into the restaurant with knives and attacking PW1 and PW2. At an identification parade again held about three weeks later, he identified the Applicant as having been one of those men. PW7 also identified the Applicant as having been one of those men, but since the judge felt unable to rely on his identification of the Applicant, it is unnecessary to comment on it further.

7. Although there was no evidence that the Applicant had himself chopped PW2 or PW3, the prosecution's case was that the Applicant had been a party to a joint enterprise to attack PW1, PW2 and their friends and to cause them really serious bodily injury. Accordingly, its case was that the Applicant should be held responsible for the wounding of PW2 and PW3 as well as that of PW1.

The defence case

8. The defence did not dispute that PW1, PW2 and their friends had been attacked, or that the persons who had attacked them must have intended to cause them really serious bodily injury, or that really serious bodily injury had in fact been caused. The defence case was that the Applicant had not been involved in the attack at all. Although the Applicant elected not to give evidence, an alibi witness was called on his behalf. She testified that at the time of the attack the Applicant had been working as a waiter in another restaurant in the village.

The reasoning of the judge

9. The judge appreciated that the case raised issues of visual identification, and he considered the evidence of the witnesses who had purported to identify the Applicant in accordance with the principles in R. v. Turnbull [1977] 1 QB 224. He reminded himself of the need to scrutinise their evidence with great care, and that honest witnesses who are sure that their evidence is correct can be mistaken. However, in relation to PW1, he bore in mind that PW1 had seen the man who he had later identified as the Applicant on three occasions that day: during the initial argument over which vehicle had had the right of way, during the meeting at which PW1's apologies had apparently been accepted, and during the attack itself. The judge said that on the first two occasions PW1 had been face to face with the man in circumstances which could not be characterised as merely a fleeting glimpse.

10. In relation to PW2, the judge bore in mind that PW2 had seen the man who he had later identified as the Applicant on the latter two occasions, and that the man had not been a complete stranger to PW2. PW2 had known the man by sight and by name for a few days prior to the attack. The judge took into account that the argument over the right of way had occurred while it had still been daylight, though beginning to get dark, and even though the lighting in the restaurant had been dim, he found that the lighting had nevertheless been sufficient to enable PW1 and PW2 to recognise the Applicant. The judge concluded that in those circumstances he could safely rely on the identification of the Applicant by PW1, PW2 and PW6. He rejected the evidence of the alibi witness.

The discrepancies in the evidence

11. Mr Wong Man Kit for the Applicant has trawled through the evidence and has identified a number of differences in the evidence of the prosecution witnesses. Those differences relate to the Applicant's clothing, the role he played in the attack and the lighting in the restaurant in which the attack took place. Those differences were not referred to by the judge in his Reasons for Verdict, let alone resolved. In not doing so, the judge is said to have failed to comply with the instructions given to judges and magistrates by the Court of Appeal in Lam Kam Ming (CA 607/79), in which it was said that "[s]ignificant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved".

12. We reject this criticism of the judge. We do not think that the differences in the evidence of the witnesses which Mr Wong has identified were particularly significant ones, certainly not differences of the kind which the judge had to resolve. For example, it would not have been all that surprising for the witnesses to have disagreed about the clothing of the man who had led the attack, since if they remembered anything about the man they would have been more likely to have remembered his face in view of the fact that PW1 and PW2 had seen the man earlier that evening and PW2 had already known him. The judge was aware of the differences in the evidence of the prosecution witnesses because Mr Wong (who represented the Applicant at his trial as well) pointed them out to the judge in his closing address. The fact that the judge did not refer to those differences in his Reasons for Verdict can, we think, only have meant that he did not regard the differences as undermining his conclusion that the identification of the Applicant by PW1, PW2 and PW6 as the man who had led the attack could safely be relied upon.

13. It is appropriate, we think, for us to reiterate that it is not necessary for judges or magistrates to resolve in their Reasons for Verdict every single conflict in the evidence. They only need to decide those issues of fact which need to be decided in order to answer the ultimate question, which is whether the prosecution has proved each of the ingredients of the offence beyond reasonable doubt. That is not to say that peripheral factual issues never need to be resolved. What issues of fact need to be resolved in a particular case will depend on the circumstances of that case. But what we can say without reservation is that in the present case the judge was entitled to take the view that the differences in the evidence did not have to be resolved. It was open to him to conclude - as we must assume that he did - that, however those differences were resolved, the evidence of identification remained sufficiently reliable for the judge to have safely convicted the Applicant on the basis of it.

The triad connections of the prosecution witnesses

14. In the course of their cross-examination, it was put to PW1, PW2 and those of their friends who gave evidence that they were members of a triad society, and that the meeting at which the apologies had been tendered and apparently accepted had in fact been a meeting designed to secure a pact between two triad factions. Those allegations were denied. The judge did not make any express findings as to whether those denials were true or untrue, but he clearly suspected that the witnesses were triad members (and therefore that that part of their denials was untrue) because he noted admissions by several of them in the witness statements which they had given to the police which suggested that they were members of a triad society. The judge continued in his Reasons for Verdict as follows:

"It is not entirely surprising that they denied their triad membership in court, bearing in mind that it is well-known that it is a criminal offence. To my mind this did not affect the reliability of their evidence as to what occurred during this chopping attack and as to the part played by the defendant in it. I could detect no sign whatsoever of any desire on their parts to exaggerate the case against the defendant."

15. The judge is criticised for this approach. If their denials were untrue (as the judge clearly suspected), that is said to have cast doubt on the reliability of the rest of their evidence. If they had lied about their membership of a triad society, they might have been lying about their identification of the Applicant. They could have been motivated by a desire to get a member of another triad faction into trouble.

16. The difficulty with this argument is that the judge rejected it. It does not follow that if a witness is lying about one thing, the rest of his evidence cannot be relied upon. Jurors are regularly exhorted not to take so simplistic a view. It was open to the judge to conclude, as he did, that, even if the witnesses had been less than frank about their triad affiliations, that did not undermine the reliability of their identification of the Applicant.

Conclusion

17. For these reasons, we reject the criticisms which have been levelled at the judge's reasoning. We can detect no basis on which it can be said that the judge's conclusions were flawed, or that the convictions of the Applicant were unsafe or unsatisfactory. Accordingly, the Applicant's application for leave to appeal against his convictions must be dismissed.

Representation:

Mr Wong Man Kit, instructed by Messrs Chan & Tsu, for the Applicant.

Mr Peter Chapman, of the Department of Justice, for the Respondent.