HKSAR v. Siu Yat Man and Another

[English translation – 英譯本]

CACC 151/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 151 OF 2010

(ON APPEAL FROM DCCC NO. 1043 OF 2009)

________________________

BETWEEN

________________________

Before: Hon Cheung JA, Kwan JA and Chu J in Court

Date of Hearing: 22 March 2011

Date of Judgment: 22 March 2011

Date of Handing Down Reasons for Judgment: 4 April 2011

________________________________

REASONS FOR JUDGMENT

_________________________________

Hon Chu J (handing down the reasons of judgment of the Court):

1.The two Applicants were jointly charged with one count of “Causing grievous bodily harm with intent” and one count of “Wounding with intent”, both contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, Laws of Hong Kong. After trial, District Judge Mary Yuen convicted them of both charges on 14 April 2010 and sentenced the 1^st Applicant to Training Centre and the 2^nd Applicant to three years’ imprisonment. They were aggrieved by the conviction and applied for leave to appeal. Having heard the submissions by both the prosecution and the defense, this Court allows the application by the 1^st Applicant. Treating the leave application as the appeal, this Court quashes both the conviction and sentence of the 1^st Applicant. In respect of the leave application by the 2^nd Applicant, it is dismissed by this Court. The reasons for the judgment are given below.

Particulars of the charges

2.The particulars of the first charge against the two applicants are that on the 22^nd day of February, 2009, on Ground floor, near Fung Yam House, On Yam Estate, Kwai Chung, together with other persons unknown, unlawfully and maliciously caused grievous bodily harm to Mok Wai Tung, with intent to do him grievous bodily harm. The particulars of the second charge are that on the same day at the same place, the two applicants together with other persons unknown, unlawfully and maliciously wounded Wong Chi Cheung with intent to do him grievous bodily harm.

Facts of the case

3.According to the prosecution evidence, the two victims Mok Wai Tung (PW1) and Wong Chi Cheung (PW2) were chatting with two friends (i.e. altogether four persons) at a chess table in a park off Chak Yam House, On Yam Estate in Kwai Chung at 12:10 a.m. on 22 February 2009. Suddenly a group of 10 odd males arriving in three taxis rushed towards the two victims and their friends. The two friends managed to escape but the two victims were caught up and attacked by those males. PW2 said that he was pinned down on the ground by one male and was kicked and fisted by three to four other males. He was also hit hard on his head by iron pipes. After the assailants left, he saw PW1 lying on the ground not too far away from him and bleeding in his head.

4.The two victims were sent to hospital for treatment. The doctor diagnosed that PW1 suffered serious injuries to the head, bleeding and swelling at the scalp of the top right skull, multiple bruises at the scalp near the left temple and fracture at the left orbital bone. He was hospitalized at the Intensive Care Unit for a day before he was transferred to the Neurosurgical Unit for treatment. He was discharged on 28 February. As for PW2, the doctor diagnosed that he suffered 4 lacerations at the rear of the head, partial tenderness at the left hand and fracture at the 4^th metacarpal bone of the left hand. Twenty stitches were applied to his lacerations and his fractured left hand had to be kept in plaster cast. PW2 was discharged on 23 February.

5.In the morning on 25 February 2009, the police arrested the 1^st and the 2^nd Applicants for “Causing grievous bodily harm with intent” and “theft” respectively. When the 1^st Applicant was arrested, his mother was present. Under caution, the 1^st Applicant said that he understood and had nothing to say. After he was taken to the police station, the police took a written record of interview from him. According to the record of interview, the 1^st Applicant admitted that at the early hours on 22 February, he together with the 2^nd Applicant and another 6 persons attacked a group of about 10 men outside the Shopping Arcade in On Yam Estate. Those men tried to escape immediately, but one male in red shirt could not run off and was kicked and fisted by the two applicants and their companions. Shortly afterwards, ten odd men arrived with some holding iron pipes in their hands. They had a fight with two applicants and his companions. They were no match for the applicants’ group and the 2^nd Applicant and his companions snatched two iron pipes from them. As they were trying to escape, one man in black shirt was caught by the 1^st Applicant and his companions, then the 2^nd Applicant and his companions hit him repeatedly with iron pipes.

6.When the 2^nd Applicant was arrested and cautioned, he indicated that he understood. Later that day the police took a written record of interview from him inside the police station. He made no confession in the record of interview. In the afternoon on the following day, he had an interview with the police again. During the interview, the police showed him aforesaid record of interview made by the 1^st Applicant and the record of interview made by another arrested person. Then the 2^nd Applicant indicated that he got something to say. After he was reminded of his caution, the 2^nd Applicant made certain confessions. The 2^nd Applicant said that he together with the 1^st Applicant and another six companions dashed towards and attacked a group of about 10 men who were near the chess table in On Yam Estate. He only kicked a man in red shirt a few times. Then the men who had run off returned with iron pipes and the two parties had a fight. During the fight, his companions snatched the iron pipes from the other party and assaulted one man in black shirt in that group with the iron pipes. The 2^nd Applicant said he only kicked that man a few times with his feet.

Findings by the trial judge

7.At the trial, the prosecution and the defense had no dispute that PW1 and PW2 were attacked and suffered the aforesaid injuries. The disputes between the prosecution and the defense were mainly about whether the 1^st and 2^nd Applicants took part in attacking the two victims. In this regard, the prosecution relied solely on the records of interview given by the two applicants.

8.The 1^st and 2^nd Applicants objected to the Court’s admission of their records of interview as evidence. They respectively alleged that the police intimidated and used violence on them, and that the content of the records of interview did not come from them. Moreover, the 1^st Applicant mentioned in paragraph (3) of his Grounds of Objection that when he was in the detention room, he made a request to a patrolling male police officer in uniform that he wanted to phone his family for legal representation. However his request was turned down because the officer-in-charge had given instruction that the case was serious and precaution must be taken against the 1^st Applicant tipping off any outsiders. 

9.To deal with the issue as to whether the records of interviews by the two applicants should be admitted as evidence, the trial judge adopted the alternative procedure. The two applicants elected to give evidence in respect of the special issue. However in the trial of the general issue, they elected not to give evidence.

10.The trial judge was satisfied that the records of interview were taken from the two applicants voluntarily, and that there was no unfairness in the case that justified the exercise of her discretion to exclude the confessions made by the two applicants. In respect of paragraph (3) of the 1^st Applicant’s Grounds of Objection, the trial judge said the following in her Reasons of Findings in the Alternative Procedure:

‘4. D1 even said that inside the police station, he was given a “Notice to Detained Persons” that informed him of his rights to hire a lawyer. He made a request to the uniformed officer on duty to phone his family for a lawyer. The uniformed office then said precaution must be taken against D1 tipping off outsiders, so D1 was not allowed to phone his family. D1 believed that as he was not allowed to phone his family, he probably would not be allowed to hire a lawyer.

…

31. I am satisfied that Inspector Pannu neither gave an order to his subordinates for the special purpose of taking away the defendants’ mobile phones nor issued a “no outside contact” order. The duty officer said that when he patrolled to the detention room, [D1] did not make any request for hiring a lawyer. I accept that [D1] could have requested to make a phone call to family members, but he did not request to hire a lawyer. The police did not deprive [D1] of his rights to hire a lawyer.’

The trial judge was also satisfied that the prosecution had proved the two charges beyond reasonable doubt. She accordingly convicted the two applicants of the charges.

Appeal application by the 1^st Applicant

11.The 1^st Applicant’s application for leave to appeal consists of two parts. The first part is to appeal against the trial judge’s decision on the special issue regarding whether his record of interview should be admitted as evidence, and the second part is against the conviction of the charges. 

12.In respect of the decision on the special issue, the 1^st Applicant put forth three grounds of appeal. The main thrust of his argument was that his request to call his family to hire a lawyer was refused. Firstly, the 1^st Applicant alleged that the prosecution called neither the duty officer who was inside the report room at the material time nor the officer who patrolled to the detention room. Therefore he argued that the prosecution failed to prove beyond reasonable doubt that the 1^st Applicant’s record of interview was not taken after his request to phone his family for legal representation was denied. Secondly, the 1^st Applicant alleged that after he had given evidence on the special issue, the trial judge erroneously allowed the prosecution to call the duty officer to rebut his evidence on the request to make a phone call to his family. The 1^st Applicant’s third ground of appeal was that the trial judge made mistakes in the way she understood and evaluated the evidence.

13.The 1^st Applicant alleged that his record of interview was taken from him involuntarily and unfairly, and one of the reasons for this allegation was that when he was detained, he was not allowed to call his family for legal representation because the officer-in-charge sought to prevent him from tipping off any outsiders. The prosecution called Inspector Pannu (PW5), the officer-in-charge, who agreed that before the action of arrest, he had briefed his team of officers to seize the mobile phones of arrested persons in order to prevent them from contacting outsiders. PW5 also agreed that he gave an order to the duty officer that the arrested persons should have “no outside contact”. 

14.When the trial judge gave her Reasons of Findings in the Alternative Procedure (paragraph 31), she said that PW5 neither ordered his subordinates to take away the applicant’s phone nor made any “no outside contact” order. Her decision in this regard was not in accordance with the evidence of the case.

15.After the 1^st Applicant gave evidence on the special issue, the prosecution called the duty officer (PW7) of the report room to rebut the 1^st Applicant’s allegation that he made a request to his family for lawyers but it was denied. PW7 confirmed that if the officer-in-charge had given such an order, the officer(s) on duty would carry it out accordingly and would neither allow the suspects to have any outside contact nor allow them to call their families. PW7 said that he personally had not received the 1^st Applicant’s request to call his family, nor had he received such a request through other officers. Moreover, he saw no record of such a request in the computer record. However PW7 agreed that, including him, there could have been altogether four police officers who had patrolled to the detention room. Some officers could have received the request from the 1^st Applicant to call his family during the patrol, but did not notify him or make any record in the computer record.

16.In the Reasons of Findings in the Alternative Procedure (paragraph 31), the trial judge held that the police did not deprive the 1^st Applicant of the right to hire a lawyer because the 1^st Applicant might have requested to call his family, but he did not request to hire a lawyer. Mr. Jim submitted to this Court that having found that the 1^st Applicant might have requested to phone his family, how could the trial judge be certain that he did not request for a lawyer. We agree that it is not easy to understand the findings by the trial judge in this regard, especially when the 1^st Applicant testified that he “had made a request to the uniformed police officer on duty to make a phone call to his family for legal representation” (See paragraph 4 of the Reasons of Findings in the Alternative Procedure). The trial judge did not explain why she was satisfied that the 1^st Applicant’s request was only to phone his family and did not involve the hiring of a lawyer. We are of the view that the trial judge’s finding that the 1^st Applicant did not request for legal representation was unsafe.

17.Given that the 1^st Applicant’s request to call his family for legal representation was turned down, the court should consider whether his record of interview should be excluded on the basis that it was given under unfair circumstances and that it would be unfair to the 1^st Applicant to admit the record of interview as evidence in the trial.

18.Article 35 of the Basic Law provides that Hong Kong residents shall have the right to confidential legal advice and choice of lawyers for timely protection of their lawful rights and interests. Similarly under the common law principles, a suspect under arrest shall also have the right to legal representation and advice. This is an important right to have.

19.In this case, when the 1^st Applicant was arrested, the police officer administered verbal caution on him. He clearly replied that he understood and had nothing to say. When he was taken to the police station, he received a Notice to Detained Persons informing him of his right to legal representation. He made a request to call his family for legal representation but it was refused. Then he was interviewed by the police and he made certain confessions which became the only incriminating evidence against him in the case. We are of the view that under such circumstances, the record of interview taken from the 1^st Applicant could have been taken unfairly, and that it might also be unfair to the 1^st Applicant to admit such evidence as evidence in the trial against him. Therefore, the errors by the trial judge in the understanding of the evidence and finding as to whether the 1^st Applicant had been deprived of his right to legal representation had, in fact, a significant impact on the safety of her decision that the record of interview was made voluntarily and fairly. Mr. Lui for the prosecution also indicated that they could not be confident that if the trial judge had correctly held that the 1^st Applicant had indeed made a request for legal representation but it was refused, she would have made the same decision to admit the record of interview as evidence.

20.In view of the above reasons, we consider that the trial judge’s decision to admit the 1^st Applicant’s record of interview is unsafe. Given that the record of interview was the only incriminating evidence against the 1^st Applicant in the trial, the decision to convict the 1^st Applicant is therefore unsafe.

21.It then follows that we need not deal with the other grounds of the application put forth by the 1^st Applicant.

Appeal application by the 2^nd Applicant

22.The 2^nd Applicant put forward three grounds to support his application for leave to appeal.

23.The first ground by the 2^nd Applicant was in relation to the decision by the trial judge to admit his record of interview as evidence of the case on the basis that it was given voluntarily. The trial judge said in her Reasons of Findings that the two applicants’ allegations against the police were incredible, and in respect of their allegations of having been severely beaten by the police, the trial judge held that “they suffered no physical injuries and made no complaint”. The 2^nd Applicant argued that the trial judge was wrong when she said that he “had made no complaint” because at the first hearing before the Tsuen Wan Magistrates’ Courts, he had already made a complaint against the police for coercing him to sign the records of interview by force. The 2^nd Applicant also submitted that the trial judge erred when she did not consider whether he had exercised the right to remain silent before he made the complaint to the magistrate.

24.In respect of the two applicants’ complaints to the magistrate at the first hearing that the police had coerced them to sign the records of interview by force, the trial judge expressly dealt with this in her Reasons of Findings in the Alternative Procedure. She had obviously taken this point into consideration. As pointed out by the prosecution, the matter was first heard on 18 September 2009. In other words, it was not until seven months after the 2^nd Applicant had signed the records of interview that he lodged the first complaint that the police had used force on him. We are of the view that reading from the wordings and logic of the Reasons of Findings by the trial judge, the phrase “had made no complaint” means no immediate complaint was made by the two applicants, and does not suggest that they never complained.

25.The 2^nd Applicant also said that he was exercising his right of silence when he did not make any complaint before the first hearing, and that no adverse inference should be drawn against him. We do not accept his argument. We are of the view that when the trial judge considered whether the 2^nd Applicant’s allegation was credible, she was entitled to take into account factors in relation to why the 2^nd Applicant did not make immediate complaint so as to decide whether the allegation was a recent allegation or fabrication. Moreover, when the trial judge held that the 2^nd Applicant’s allegation was not credible, she also took into account other relevant circumstances, including that although the 2^nd Applicant alleged that the police was violent towards him on the day of arrest and that they invented the contents of the record of interview, there was no confession in the record of interview made on that day. On the contrary, the 2^nd Applicant said that before he signed the 2^nd record of interview in which his confession was contained, the police did not use violence on him. We are of the view that the trial judge had correctly considered and analyzed the relevant evidence, including the time and circumstances under which the 2^nd Applicant made his first allegation against the police. The submission by the 2^nd Applicant that the trial judge had not followed the legal principles and had wrongly directed herself was not substantiated. The first ground of his application cannot stand.

26.The second ground by the 2^nd Applicant was that the trial judge had made a significant procedural mistake when she allowed PW5 (Inspector Pannu) to give his evidence in Chinese after making an oath in English. We do not see any merit in this ground.

27.First of all, the transcripts of the recordings of the PW5’s testimony do not show that he all along or most of the time answered the prosecution and the defence’s questions directly in Cantonese. On the contrary, the transcripts show that the trial judge had at one stage asked the witness to clarify his answers in view of the translation difficulties (T5 N-R), and that the court interpreter had asked the Counsel to repeat his questions (T7 P-Q). Moreover, it is true that in court proceedings a witness should make an oath in the language that he gives his testimony. However, the court will not conclude that the witness’s testimony is invalid and exclude it merely because he gives his evidence in a language which is different from that he takes his oath. Nor will the Court of Appeal consider it as a major procedural irregularity of the original trial, so as to rule that the verdict of the trial judge was unsafe and should be set aside. In his submission to this Court, Mr. Yeung cast doubt on PW5’s command of the Chinese language. However, PW5 said under the cross-examination by Mr. Jim, Counsel for the 1^st Applicant, that he understood Cantonese and he communicated with the other officers in the punti dialect (T8 K-M). Furthermore, we have also noted that when PW5 gave evidence in court, the defence did not raise any concern with the trial judge that the witness was testifying in a language different from that he swore in and asked the trial judge to rectify. These show that they did not consider that there was anything unfair in the trial procedures. Nor did they think that the defendants’ right to a fair trial was infringed in any way. Therefore, the fact that PW5 testified in Chinese after having made his oath in English at the trial did not constitute any major procedural irregularity. It certainly would not render PW5’s testimony invalid or justify the exclusion of his evidence. Mr. Yeung cited the case of HKSAR v Mahat Prem Bahadur [1998] 3 HKC 336, at 340H-I.  However the facts in that case are very different from the present case, and the legal principles laid down in that case are not relevant at all.

28.The 2^nd Applicant put forward the third ground which was that the trial judge did not understand that the injuries sustained by the two victims could have been caused by a person other than the 2^nd Applicant and that the injuries could have been caused by other persons using the iron pipes. Mr. Yeung argued that the two victims did not say in their evidence that the 2^nd Applicant was the assailant, and that in the record of interview, the 2^nd Applicant only mentioned kicking the man in red shirt and another man in black shirt a few times. There was no evidence in the present case which suggested the two victims were the only persons wearing a red shirt and a black shirt. Therefore no one could eliminate the possibility that the 2^nd Applicant had kicked someone other than the two victims.

29.We consider that his submission is purely speculative. The assault mentioned by the 2^nd Applicant was the same in terms of the location and time as specified in the particulars of the charges and described in the prosecution evidence. The record of interview by 2^nd Applicant clearly revealed that the case involved a fight between two gangs. The first gang was made up of the two applicants and his other eight companions, and the second consisted of the victims and another ten odd companions. The gangsters were sharply divided into two sides when they had a fight. The 2^nd Applicant also confessed that he kicked the two men of the opposite side. In the circumstance, the submission by Mr. Yeung that it was possible that “the wrong persons were assaulted, the wrong persons were identified or the assault was arbitrary” was not supported by evidence.

30.Moreover, although the 2^nd Applicant only confessed to a few kicks and no other assault in other ways, he is criminally liable to the injuries sustained by the two victims under the legal principle of “joint enterprise”.

31.Mr. Yeung also submitted that the trial judge did not draw a clear distinction between the two charges. We are of the view that his submission in this regard is irrelevant. From the reading of paragraph 8 of the Reasons of Findings, it can be seen that the trial judge clearly understood that the first charge was different from the second charge. In this case, the defense did not challenge the injuries sustained by the two victims. In view of this, Mr. Yeung’s submission as to whether the PW1 had sustained “break of true skin” would not support the 2^nd Applicant’s application.

Conclusion

32.We allow the 1^st Applicant’s application for leave to appeal. Treating his application as the formal appeal, we allow the appeal. His conviction and sentence are hereby quashed. But the application by the 2^nd Applicant is refused.

Mr. Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent.

Mr. Jacky Jim, instructed by Messrs. Cheung & Choy, for the 1^st Applicant.

Mr. Y C Yeung, instructed by Messrs. Wong & Co., for the 2^nd Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.