The Queen v. Tsang Kwok-fai and Another

CACC000088/1988

BETWEEN

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Coram: Hon. Power, J. A., Penlington, J. A. & Bewley J.

Date of Hearing: 13th October 1988

Date of Judgment: 13th October 1988

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J U D G M E N T

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Power, J. A. :

1. Each of the applicants was convicted on 27th January 1988 after trial before Judge Downey in the District Court of causing grievous bodily harm with intent and of robbery. Each now appeals against those convictions.

2. The Crown case was that on 25th September 1987 at around 4.30 P. m. after attending his girlfriend's court proceedings, the victim, Mr. Lo met the applicants, who were, at the trial, the 1st and 2nd defendants and to whom I shall refer to as the1st and 2nd defendants, who were the brothers of the girlfriend. It was alleged that the three of them drove around the Kwun Tong area on a goods vehicle for about two hours and at about 12.30a.m. on 26th September, the following day, the victim was woken up by the defendants whilst he was sleeping at the rear of the goods vehicle and that they then, assaulted him. The assault was accompanied by persistent suggestions that the victim had forced the sister into prostitution.

3. It was the Crown case that the 1st defendant at about 4.00 a.m. used a nylon string to strangle the victim and that further threats were made to the victim and that he was told to hand over his valuables. The most serious assault was alleged to occur when the 2nd defendant was strangling the victim with a string and the 1st defendant was covering his mouth with his hands it was alleged that this caused the victim to lose consciousness and that when he awoke he heard the defendants discussing their intention to take away his wristwatch and necklace. The allegation was that these were removed by the defendants and immediately thereafter he escaped and boarded a passing vehicle and eventually, the police having been called, was taken to United Christian Hospital for treatment. The defendants were arrested and the 1st defendant under caution admitted that he had the intention to strangle the victim because he caused his sister to become a prostitute. He denied involvement in any robbery as did the 2nd defendant who denied any involvement at all.

4. Both of the defendants have filed Grounds of Appeal and Additional Grounds of Appeal. The 1st defendant Grounds of appeal were:

(1)    that the judge did not ideal with many doubtful points.

(2)    that the witness Lo's testimony. Was inconsistent with his, statement given at the police  station;

(3)    that the exhibits failed to serve as substantial evidence presumably his ground really is that the exhibits were not conclusive evidence.

(4)    that he and the witness knew each other and it was therefore impossible for him to have robbed him.

His fifth ground was not really a ground at all it was an explanation as to what happened. He said that there had been a misunderstanding and he hit the victim on the spur of the moment and that he was not holding any offensive weapon.

5. The Grounds of Appeal of the 2nd defendant were the same except that in ground, (5) he stated that he was not present at the scene and had riot assaulted the victim. These grounds really raise matters of fact. What is being argued by  the applicants is that the victim's evidence was such, when placed against the background of the evidence as a whole that the judge should not have given him any credibility.

6. When the reasons of the judge are read there can be no doubt that he was fully aware that the prosecution relied very heavily upon the credibility of Mr. Lo. He said at p.4 of his Reasons for Verdict:

"It has been submitted that Mr. Lo should not be believed. At best, he has exagerated the events of the night in question, presumably to deflect his own misconduct in getting involved with Yim-fong and making threatening demands for money from her relatives. I accept that he is not to be treated as, an innocent youth. despite his age. He has a previous conviction for robbery, when he was fourteen years of age. He admittedly told a lie to the police wen he said that he had had a sexual relationship with Yim-fong a fact which he vehemently denied in Court. It was suggested that the allegations of robbery were completely fabricated and that he had hidden his watch and necklace while he was in the hospital.

I have taken all these matters into account in trying to assess Mr. Lo's credibility. His apparent concern for Yim-fong's welfare, by trying to see her after her arrest, trying to contact her family members to arrange bail, and attending her various court appearances, may suggest that suspicions of his material self-interest are justified. But, having seen him give evidence and having considered all the evidence and surrounding circumstances, I' am satisfied that he has told me the truth on all material points.

This passage makes it clear that the judge was aware of the importance of looking with care at the evidence of Mr. Lo and that he did examine that evidence with care we are satisfied that there is nothing in the first ground of appeal as the trial judge clearly did give careful consideration to all relevant matters.

7. The second ground is that the witness's testimony was inconsistent with the statement which he gave at the police station. This is true but again the trial judge was fully aware of this He said.

"Such discrepancies as exist between his evidence and previous statements to the police and Doctor Thwin are, in my view of minor or trivial significance."

The weight to be given to such discrepancies as did exist was clearly a matter for the trial judge.

8. The third Ground of Appeal complains that the exhibits presented to the court were not conclusive as to the guilt of the accused. This may well be so but the 'judge did not rely on them as being conclusive. He relied upon the belief which he placed on the evidence of the victim

9. The other matters raised, in the Ground of Appeal are simply denials of involvement and we do not need therefore to deal with them further

10. The 1st defendant in his Additional Grounds of Appeal takes issue with an observation which the trial made judge made with regard to the possibility that the victim had hidden his property and pretended it had been stolen from him. Issue seems to be taken with the statement by the judge at p.9 where he said:

"I am sure that searches would have been made it the hospital or Mr Lo' s' home if there has been any, grounds for suspecting that his robbery complaint was unfounded."

Taken out of context this statement might give cause for concern but when put in context it is clear that it was no more than an observation by to judge that as the police had no ground for suspecting that there any fabrication they had no reason for making any searches in the hospital or at the victim's home to see if they could find the property.

11. The 1st defendant goes on to again raise a number of matters of fact. He again submits that the trial judge, should have had doubts because of the discrepancies which he lists. As we have already said these were matters for the trial judge. He considered Mr. Lo, the victim's evidence with care and was in the outcome satisfied that he was a truthful witness. Nothing has been shown to us that would justify our interfering in that conclusion.

12. The 2nd accused in his Additional Grounds complains that the victim in cross-examination said that he had "thought" that the 2nd accused had been the one to strike him before he lost consciousness. He suggests that this apparent uncertainty, demonstrated by the use of the word "thought", arose out of mendacity and that the trial judge should are _.made such a finding. We are not satisfied that there is anything of significance in this. The use of the word "thought" may well have been because the situation was somewhat confused at that time. There can be no doubt when the evidence is read that the victim was saying that both the 1st and 2nd defendants were present and that both were assaulting him.

13. The 2nd accused also complains that the fact that no bloodstains were found upon his person, indicating that he was not involved in any way with the victim, should have caused the trial judge some doubt as to the allegations made against him. This matter was not, however, overlooked by the trial judge, he dealt expressly with it, saying:

"The only evidence that D2 was a party to this grievous assault on Mr. Lo is that of Mr. Lo himself. Everything that D1 said suggests that D2 was not present during the fight. The fact that no bloodstains were found on D2's clothings tends to rule out any close bodily contacts between Mr. Lo and D2 at the material time. But, this fact does not cause me to doubt the evidence of Mr. Lo that D2 took an active part in the assault upon him. The sparsity of contact evidence in the form of bloodstains is consistent with the forensic evidence as to the nature of Mr Lo's injuries, and the absence of any external wounds."

14. Having considered the matters raised by, the applicants in their Grounds of Appeal and Additional Grounds of Appeal we are satisfied that there is nothing, to occasion this court any concern as to the propriety of the convictions recorded against them.

15. The applications for leave to appeal against conviction are therefore dismissed.

Representation:

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

1st Applicant TSANG Kwok-fai in person.

2nd Applicant TSANG Kwok-man in person.