HKSAR v. Wong Kam Chan and Another

CACC 142/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 142 OF 2011

(ON APPEAL FROM DCCC NO. 631 OF 2010)

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BETWEEN

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Before: Hon Cheung CJHC, Stock VP and Cheung JA in Court

Date of Hearing: 11 May 2012

Date of Judgment: 11 May 2012

Date of Handing Down Reasons for Judgment: 17 May 2012

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons for Judgment of the Court):

1.On 30 March 2011, the applicants were convicted in the District Court by Judge Stanley Chan upon a charge of wounding with intent, contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212 and sentenced, in the case of the first applicant, to 3 years 6 months’ imprisonment and in the case of the second applicant to 3 years’ imprisonment. Each sought leave to appeal conviction. The second applicant had sought leave to appeal sentence but abandoned that application so that it stands dismissed.

2.On 11 May 2012 we dismissed the applications and said that we would provide our reasons.  This we now do.

3.The charge was that the applicants on 9 April 2010 in Boundary Street Mongkok unlawfully and maliciously wounded Wong Kam Tim with intent to do him grievous bodily harm.

4.Despite the inordinate length taken by defence counsel in the court below (not Mr Li who appeared before us) to traverse every minute detail of the case – so much so, that on the 11^th day of a 15-day trial, the trial judge, who had shown remarkable patience, was constrained to complain about the extraordinary and unrealistic detail into which counsel were delving – the case in fact falls within a straightforward compass.

5.Mr Wong, the complainant, worked as a subcontractor.  On the afternoon of 7 April 2010 he received a telephone call from someone representing himself as a man called Chiu.  From the caller display, Mr Wong noted that the incoming telephone number was 6826 1191.  Chiu said that he wanted to entrust Wong with a project and an arrangement was made for the two to meet at a cafe at 9 am on 9 April.  The two had never met before.  So Wong went to the arranged place and whilst he was having breakfast he received a telephone call from Chiu, from the same telephone number, saying that Chiu was about to arrive and Wong made a return call shortly thereafter.  The number on the telephone which Wong was using that day and on 7 April was revealed to the court below during the trial.

6.Everything thereafter moved very swiftly.  Chiu said that his boss was nearby with a motor car and would pick them up and take them to the site of the project for which Wong’s services were required.  An unusual feature of Chiu’s appearance was that he was wearing a face mask.

7.Wong and Chiu quickly walked along Boundary Street where, in the vicinity of a small garden there, a man jumped out and attacked Wong with a rod.  He was wearing a cap which fell off during the attack.  Chiu attacked Wong from behind.  The attack did not last long but it was quite vicious and the complainant was later admitted to hospital suffering laceration wounds to his head, bruising, and a fracture of a finger.

8.The men ran off towards Boundary Street and Lai Chi Kok Road.

9.The police arrived very soon after and Wong told them what had happened.

10.About 9:20 am the same morning, very shortly after the attack on Wong, a group of police officers happened to be on patrol in Lai Chi Kok Road and they saw two men running.  According to the officers’ testimony, one of the two men was wearing, inter alia, a face mask and a cap.  The police intercepted the two men.  It is common ground that the two men were these two applicants.  The first applicant took off his face mask and put it into a trouser pocket.  The men were panting and the second applicant was perspiring.  The men were separated and questioned.  No weapons were found on either man.

11.By this stage police were attending to the complainant a short distance away.  As a result of what Wong told the police, a telephone call was made to Chiu’s telephone, number 6826 1191, and a telephone in one of the first applicant’s pockets rang.  The telephone was removed from his pocket and the display showed the call to have emanated from the telephone in Mr Wong’s possession.

12.According to the officers attending to the applicants, each applicant – in answer to questions then put to them about the wounding incident of which those police officers were then aware – made inculpatory remarks.  The first applicant said that he had hit the victim with a rod in order to teach him a lesson.  The second applicant said that he had assaulted someone but had used his bare hands and not an iron bar.

13.The applicants were taken to the police station where the events upon arrest were recorded but each applicant refused to sign the record of those events.

14.At trial, Mr Wong the complainant testified.  He was cross-examined for over a day and a half.  He had attended an identification parade at which he had not identified the two applicants.  The purpose of the cross-examination, it seems, was to elicit a distinction between the descriptions which he had given to the police about his assailants and the personal features of, the clothing in fact worn by, the applicants upon their arrest.  Cross-examination went into unrealistic detail including questions about the thickness or thinness of the eyebrows of one of the assailants, and the material of which one of the assailant’s trousers was made - whether nylon or cotton: matters such as that.

15.The applicants’ case in relation to the alleged admissions by them at the scene of their arrest was that the words attributed to them were not used and that no inculpatory comments of any kind were made but, to the contrary, that they advanced unqualified protestations of innocence.  Nonetheless, an issue of admissibility was raised because of the suggestion that an inspector had said to them at the scene of their arrest that if they did not co-operate they would be charged with murder.  There was also an allegation of a breach of the Secretary for Justice’s Rules for the Interviewing of Suspects on the basis that the applicants should have been cautioned sooner than they were.

16.So the judge adopted what we know as the alternative procedure: various officers gave evidence about the circumstances of the arrests and about what happened at the police station after the applicants were taken there; and the applicants gave evidence on the special issue.  The judge then delivered a ruling on the special issue; in doing so he said that he was satisfied about the credibility of the police officers who testified; was satisfied that the applicants had spoken the words attributed to them; was sure in any event that nothing untoward had occurred or had been said, so that the voluntariness of the admissions was established; and, finally, that there were no grounds upon which he might justifiably exercise his discretion to exclude the evidence.

17.Then the trial returned to the general issue, in respect of which the applicants each gave evidence.  Each spoke of the circumstances in which they came to find themselves that morning in Boundary Street; what they had been doing before they went to Boundary Street – namely, collecting a debt from an acquaintance of the second applicant; and, then, in relation to the circumstances of their arrest and what happened at the police station, they merely adopted the testimony which they had given upon the special issue.

18.The applicants’ testimony, both upon the special issue and upon the general issue, accepted that :

(1)   the first applicant was wearing a face mask when apprehended by the police : quite why, according to him, is not clear – at one stage it was said that he was doing that because he normally wore a mask when he was on duty; at another, that he had influenza;

(2)   the first applicant was wearing a cap; and

(3)   the first applicant indeed had in his pocket the telephone which shortly before had been used to contact the complainant as a prelude to the attack: he had come by it, he said, because he and the second applicant, after they had collected the debt and were in Boundary Street, saw two men running and one of the running men dropped a telephone so the first applicant, in a moment of greed, picked it up.

19.There are many grounds of appeal placed before us, lengthy written submissions and about 140 pages of transcript of the proceedings in the court below.

20.Of the many grounds of appeal there is only one that is barely arguable. It relates to the judge’s remark in his ruling on the special issue that he was satisfied that the statements attributed to the applicants were in fact made.

21.It is correct to say that it was not for the judge to make that decision at that particular stage.  Despite the fact that the stance for the applicants was that the interview and comments were never made, the issue at that stage of proceedings was whether, assuming – contrary to the applicants’ submissions – the comments were made, it was proved by the prosecution that they were made voluntarily; and the questions whether the statements were in fact made and, if made, were true fell for determination on the general issue, assuming the statements to have been ruled to be admissible: see Thongjai and another v R [1997] HKLRD 687.

22.The trial judge was well aware of this split approach as the proper approach and made no ruling at the special issue stage as to the truth or otherwise of the statements, if made.  His error was in making a finding at that point that they were in fact made.

23.That said, there was, on the basis of the way matters proceeded in this particular case an artificiality in the point taken; and no argument was reasonably available to the applicants upon which to suggest that the applicants were prejudiced by the error which, in the context of this case, was highly technical.  We note that in the course of cross-examination and in particular in the course of oral submissions on behalf of the first applicant on the special issue, much time was spent in trying to establish and in urging the judge vigorously that the comments were never made; and no doubt that encouraged the judge to say what he did at the time of his ruling.  No-one then suggested to him that what he had said was inappropriate.  Ms Lai told us that she decided not to raise the point because it was too late to do so.  That, with respect, is not an approach that appeals to us: it is always open to counsel, if he or she really feels potentially disadvantaged, to point out the error and to invite the judge to reconsider the matter in the light of such evidence as might later be forthcoming.  But, in any event, each of the applicants then testified on the general issue and the judge, hardly surprisingly, rejected their defence.  There was nothing in the evidence they gave on the general issue that in the event could conceivably have made any difference to the impugned finding which he expressed at the time of his ruling.

24.The error which has been pointed out is not one which we would categorise in the context of this particular case as material but even if it were, we would have had no hesitation whatsoever in applying the proviso referred to in s 83(1) of the Criminal Procedure Ordinance, Cap 221.  This is a case in which sight seems, with respect, to have been totally lost of the wood for the trees.  The wood is constituted by the facts that within a very short time of the attack on Mr Wong, by two assailants, one of whom wore a cap and a face mask and had prior to the attack telephoned Mr Wong, there were these two men (the applicants) found very close by – one with a face mask and in his pocket the very telephone from which the telephone calls had been made.  The case against these applicants was as overwhelming as one might imagine.

25.It was also argued that in his ruling on the special issue, the judge ought not to have said that he found the testimony of the police officers on the special issue reliable.  That was a strange submission.  True it is that where the question of voluntariness is centred on allegations of police impropriety and the judge, after hearing evidence, rules the impugned statements to be admissible, a judge tends to say no more than that he is satisfied that voluntariness has been established.  But it is clearly implicit in such a ruling in such a factual context that he has believed the testimony of the police officers that no impropriety has taken place.  The suggestion that he must not actually say so and if he does, an irregularity is constituted is not a mature suggestion.

26.Amongst the other grounds of appeal is the contention, by both counsel, that the judge assumed the role of the advocate in his conduct of the case so as to create a real danger of a perception of bias.  In order conscientiously to assess this complaint – one that should not lightly be made – we have traversed the length and breadth of the extensive transcript only to find that it is entirely without foundation.  The judge handled the case with scrupulous fairness and incredible patience.  Counsel ought not to have drafted or put their names to this ground.

27.There is a ground of appeal that there were material discrepancies between the description given by Mr Wong, complainant, of his assailants and their clothing, on the one hand, and their actual appearance and the clothing worn upon their arrest.  We have alluded to the extraordinary cross-examination in this regard; cross-examination which, in the context of a man who had encountered his attackers but briefly and mostly in the context of an attack, was largely divorced from any reality.  Similarly, this ground of appeal is not realistic.

28.We do not propose to deal with the remaining grounds of appeal save to say that there was nothing in them.

Ms Alice Chan, SADPP of the Department of Justice, for the Respondent

Mr Tong C Y Li, instructed by Simon C.W. Yung & Co., for the 1^st Applicant

Ms Annie Lai, instructed by Lui & Law, for the 2^nd Applicant