Shum Kin-wing and Another v. The Queen

CACC000881/1982

BETWEEN

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Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A.

Date: 21 December 1982

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JUDGMENT

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McMullin, V,-P.:

1. The applicants, Shum Kin-wing, and Shum Kin-yip are brothers. They renew applications for leave to appeal against their convictions before the District Court upon a charge of wounding with intent to cause grievous bodily harm The case for the Crown is principally contained in the evidence of two witnesses. The complainant Po Wai-man is employed by a dishwater in the Tuen bun area. He told the court that on 20th November 1981, he and his employer were having a mid-day meal at about 1 p.m. in the Wah Kee restaurant in Tuen Mun. The 1st defendant entered the restaurant and asked the complainant to give him $100. He said to the 1st Defendant that he did not have that money. The 1st Defendant used abusive and filthy language to him and then kicked him on the side, knocking him from the stool upon which he sat His employer had disappeared by this stage to get in touch with the police. By the time he had returned, the proprietor of the Wah Kee had come between the complainant and the 1st Defendant and told them to leave the restaurant. The complainant said that he left by the rear door and the 1st Defendant went out by the front door. He said he was going to make a complaint to the police post nearby, but we he got to the vicinity of the front door he was set upon by a group of people, some of them armed with knives lie told the court that he recognised the 1st Defendant and his brother the 2nd Defendant amongst the armed attackers. He said that he lifted a spade which was lying nearby to defend himself and somebody called A Tung intervened to measure him that such measures were not necessary. He let the spade down and straight away he was assaulted by the 1st and 2nd defendants with knives. He described that held by the 1st defendant as being about 18" long and rusty in appearance, that held by the 2nd defendant as being about the same length and new in appearance. He told the court that these blows actually landed upon his head, and immediately after that he received another blow on the head from a hard object, he did not purport to identify the person who had struck the third blow. He lost consciousness at once, regained it briefly after the police had arrived, was taken off to hospital once more unconscious, but when examined by a doctor, he was apparently conscious and orientated. Nevertheless it is beyond doubt that he was very seriously injured. His injury required immediate surgical attention. It was a grave operation. Under the external injury was discovered a severe fracture of the skull which had frequented part of the bone. Scraps of bone were actually extracted from the brain.

2. Despite what he has made that appears to be in general a good recovery, although the future prognosis is uncertain. The doctor said, when giving evidence, that there was sonic residual right side hemiparesis i.e. weakness in a motor and sensory function" and there was a danger of epilepsy which had not yet manifested itself.

3. The employer of the 1st defendant gave a similar account of what had occurred. He said that when he saw the 1st defendant aiming a kick at the complainant, he left and went to a place nearby where there was a phone are dialled 999. When he returned, he saw the proprietor, as he put it, separating the two men and he said that they both left by the front door. He then saw the complainant being surrounded by a group of people and he was once more frightened enough to go and again phone the police. When he returned he saw his employee lying upon the ground with blood coming from his head.

4. The 1st defendant gave evidence. He did not deny that there had been an altercation between himself and the complainant. He said that on that day he had gone to collect a gambling debt of $100 owed to him by the complainant. He asked for this money. The complainant said he wouldn't pay. They then abused each other using similar vulgar and abusive language, and he admitted that he had aimed a kick at the stool upon which the complainant was sitting. He denied kicking him off the stool. He said that he was ordered out of the restaurant by the proprietor and that he left the restaurant and went straight to a bus stop with the intention of taking a bus to his home. He denied being present at any fracas involving the complainant and his brother or other persons.

5. The 2nd applicant did not give evidence. He called his employer who is also a fish monger in that area and who purported to give him a total alibi for the morning of the 20th November. We need say little about the alibi evidence It is clear that throughout, the 2nd defendant's employer was principally concerned to resist any suggestion that the 2nd defendant had at any time during the morning been absent from his immediate presence and observation. The Judge in dealing with that evidence rejected it and said that it had been thoroughly demolished by the cross-examination. Whether or not that is too strong a description of what occurred in cross-examination, we are satisfied that the alibi witness was not a satisfactory witness.

6. Nevertheless, a matter of considerable concern has emerged in the course of the hearing of this appeal. The Judge accepted the identification by the complainant of the 1st and 2nd defendants. In doing so, he found that they had, as the complainant said, used knives to inflict blows upon the complainant's head. This finding is in the opinion of this court quite clearly controverted by the findings of the doctor. What he observed upon external examination of the complainant was a laceration over the skull, 12 cm long covering the fractured part of the skull. It was, that is to say, a single injury. Mr. Smith has asked as to say that the evidence for the Crown is sufficient to establish that that injury could have been inflicted by the 1st and 2nd defendants acting in concert, the knives happening to coincide on exactly the same part of the surface of the head. Even if one were to countenance what is, by any measure, an extraordinary coincidence, it leaves unaccounted the fact that on the complainant's own evidence he received yet a third blow. That was the blow which actually rendered him unconscious. We can hardly assume that that blow also landed upon the precise place where the two knives are said to have coincided. This was a point of quite crucial importance in the Crown's case and I will return to that in dealing with the Judge's finding thereon.

7. One or two minor points were made by Mr. Smith on behalf of both the applicants. He asked us to say that the evidence of Mr. Po, the complainant, was greatly exaggerated and he points to the fact that Po described how the 1st defendant had thrown bottles at him prior to the two of them being sent from the restaurant. No other witness described any such incident. He also referred to the evidence of the knives and the difficulty it has raised in respect of the doctor's evidence. I have dealt with that and will return to it. He also asked u to say that the Judge's finding that there had been an unwarranted demand was not borne out by the evidence inasmuch as there seemed to be a difference between the complainant and his employer as to what was said in the conversation between the complainant and the 1st defendant. The point is not a very serious one but it may be that what was said by Mr. Chow the employer might better favour the idea of repayment of debt rather than that of an unwarranted demand He said that he had heard his employee saying in response to a demand for money that there would be no problem if he had the money but couldn't pay because he had not got away. That might however also be consonant with the idea of a local tough demanding money unwarrantably.

8. Counsel then points to the fact that Mr. Chow, the employer of the complainant, who had seen the let defendant, during the altercation in the restaurant, did not purport to identify the 1st defendant as one of the attacking crowd outside.

9. Counsel asked us also to say that the quality of the 1st defendant's evidence is better than that of the complainant inasmuch as he frankly admitted that there had been a row and that he had aimed a kick at the other man.

10. There may be some substance in these points, but they are quite secondary to the evidence relating to the knives and the Judge's finding thereon.

11. Having accepted the complainant's evidence in the main, that is to say having accepted that there had been an unwarranted demand which was refused, the judge went onto say: "in his own eyes of course he would have lost face by Mr. Po's sturdy refusal of his demand, and I have no doubt that he was the ring leader of the group who surrounded Mr. Po outside the restaurant minutes later and that it was he who delivered the first blow."

12. This finding appears to exceed the evidence placed before him, and it touches the very nerve of the prosecution case. The Judge did not deal with the patent discrepancy between the doctor's evidence and the story of the infliction by the two defendant of simultaneous blows upon the head of the complainant. This point goes directly to the identification of the alleged assailants. We think that the finding as to the knives was simply not sustainable upon the evidence as it appears upon the record of the proceedings. With that out of the way, identification being the crucial issue, the Crown's case must rest upon the contention that the 1st and 2nd defendants were part of a group who had assaulted the complainant. But if they are not identified in the manner which derives from the complainant's evidence, and which was accepted by the Judge, there is left no clear evidence at all as to what part, if any, either of the defendants had played in the assault.

13. Then with regard to the 2nd defendant, Mr. Smith points out that the complainant did not purport to identify this man (as he had the first defendant) as somebody whom he had seen many times on previous occasions. Counsel says therefore that the identification of the 2nd defendant was one of a kind which fell especially under the need for a careful direction along the lines of Turnbull. No specific direction of that kind is given in the reasons for verdict. It must be said that if the complainant was not previously familiar with the appearance of the 2nd defendant, and there is no evidence to indicate that he was, this was an occasion of the kind which would reasonably be described as one affording merely a fleeting glance in the course of a violent episode, the nature of which would have been to militate against very clear identification. That again is a point of a subsidiary kind and it relates only to the case of the 2nd defendant.

14. Finally, we have noted the fact that although this incident occurred on 20th November 1981, neither of the defendants was arrested until late in March 1982. No reason was given for the arrest of the first defendant, on the 28th of March. Nor were the circumstances surrounding his arrest put before the court: The 2nd defendant was arrested under unusual circumstances: he had, on 30th March, attended a police station with the lawyer engaged for his brother, the 1st defendant, who was to be on an identification parade. When Mr. Po, the complainant, was brought in to attend the parade, he saw the 2nd defendant sitting in a room with a lawyer, and at once pointed him out as one of the men who had assaulted him on 20th November. What remains unaccounted for is the reason for the long interval between the 20th of November and the end of March when these arrests took place. Counsel for the Crown has been able to do no more than assure us that reasons could have been given. This was not done at the trial and we cannot have regard to anything in the nature of an explanation at this stage Evidence of arrest and of the circumstances surrounding arrest is frequently of considerable importance. The absence of such evidence in the present case is merely an additional feature contributing to that lurking doubt which we entertain in respect of these convictions. For the reasons given however we think that the convictions cannot be regarded as safe or satisfactory and treating the applications of the applicants as the hearing of the appeal, we quash the convictions and set aside the sentences

Representation:

C. Smith (Jenkins, Oliver & Au) for both Appellants.

A. Watson-Brown for Crown/Respondent.