The Queen v. Cheung Fuk Wah

CACC000095/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Fuad, V.-P., Kempster, J.A. & Barnes, J.

Date of Hearing: 1st June 1988

Date of Judgment: 1st June 1988

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J U D G M E N T

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Fuad, V. P. (giving judgment of the Court):

1. The Applicant, Cheung Fuk Wah (D1 at the trial) appeared in the District Court before His Honour Judge Sanders and pleaded not guilty to the offences of causing grievous bodily harm with intent (1st charge) and of claiming to be a member of a triad society (2nd charge). He was convicted on the 2nd charge but convicted, in relation to the 1st charge, of the lesser offence of assault occasioning actual bodily harm. His sister (D2), who is not before us, was convicted of the assault offence as a counsellor and procurer.

2. The Applicant now seeks leave to appeal to this Court against his convictions. He has abandoned his application in relation to concurrent sentences of 15 months' imprisonment on the 1st charge and 3 months' imprisonment on the 2nd charge.

3. The complainant is a Captain at a Japanese restaurant and the offences arose out of an incident during the early hours of the morning of 11th June 1987. The evidence accepted by the judge, as shown by his full and carefully formulated Reasons for Verdict was as follows. D2 came into the restaurant with three other young women. The complainant served them with food and drinks and then took part in a "finger-guessing" game with them. When the complainant lost, his forfeit was supposed to be that he should consume two drinks. He drank only one and D2 became annoyed.

4. As the complainant went about his duties he could still hear D2 scolding him, D2 then rang her brother, the present Applicant, who came to the restaurant about a quarter of an hour later with three other men. D2 pointed out the victim to her brother and complained about his conduct in not paying the proper forfeit. The men blocked the exit of the restaurant and cut the telephone wires Two of the men picked up knives. The Applicant announced that he was "No. 14" which was understood by the complainant and another prosecution witness to he a claim that he was a member of the 14K Triad Society.

5. The Applicant then hit the complainant over the head with a wine bottle. Two of the men who had come with the Applicant helped him to drag the complainant out of the grill room into the main restaurant where they continued to assault him. During this part of the assault the victim was hit with an ashtray, a tea pot which broke and other objects.

6. The complainant was covered with blood and taken to hospital where he was kept over night. He was found to have four lacerations on his face a laceration over the dorsum of his left hand and a laceration on his right index finger which diminished its extension movement. One of the wounds on his face had to be stitched. The judge accented that the complainant was permanently scarred on his face.

7. The Applicant elected not to give evidence and called no witnesses. D2 took the same course.

8. The judge dealt with the discrepancies in the testimony of the prosecution witnesses in considerable detail and had no doubt that the assault had been proved, though of a lesser degree to that originally charged. He also found that the triad offence had been satisfactorily established.

9. The sole ground of appeal put forward by the Applicant was that the judge had not been fair in believing the victim's unsupported allegations and had consequently found him guilty of being a triad member without corroborative evidence. He said that the victim had made the allegations only out of a moment of rage. Before us, the Applicant added nothing.

10. There is no merit in this application and it is dismissed.

Representation:

Mr. M. Wilson (Crown Prosecutor) for the Crown.

Cheung Fuk Wah, 1st Defendant/Applicant in person.