Fung Chi Keung v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 587 OF 1972

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Coram: Huggins, MuMullin and Pickering, JJ.

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JUDGMENT

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Huggins, J.:

1.  The Appellant was one of three men charged with unlawfully and maliciously wounding with intent to do grievous bodily harm. His application for leave to appeal against conviction was dismissed by the single judge and has been renewed before this Court.

2.  There is no doubt at all that a man called MIU Kam-lung, a garage mechanic, was seriously wounded. This arose out of an incident relating to a car hired from the garage at which he worked. The car was hired for a visit to Rocky Bay made by a number of young men, including the Appellant. During the day the car was damaged. The Appellant went to the garage to report this and returned with the proprietor and two mechanics to Rocky Bay. A discussion took place about compensation and this discussion became somewhat heated. However, an agreement was eventually reached that a sum of $800 would be paid. The proprietor of the garage returned to Kowloon and left the two mechanics to collect the compensation. It was when one of the mechanics went into the village to collect the money that he was set upon by something in the region of twenty men and was wounded.

3.  The victim identified three men as having participated in this attack and these three included the Appellant. At an identification parade he picked out the three men and at the trial no attack was made upon this identification of the Appellant. It was, of course, open to possible attack, because the Appellant had no doubt seen this man both at the garage and during the discussions at Rocky Bay. If, therefore, the victim was minded to commit perjury he might have sought wrongly to implicate the Appellant as being one of the party who had been using the car and whose use of the car led to the assault upon him.

4.  The Appellant was interviewed by the police some one month later and made two cautioned statements to police officers – and a further statement in answer to the charge when he was formally arrested. In these statements he admitted that he had been involved in the attack and had in fact struck the victim on the hand with an iron bar.

5.  The defence at the trial was an alibi and the Appellant also attacked the statements alleged to have been made by him as having been made under duress. The learned trial judge held a trial within a trial and decided that the statements were admissible. We cannot say that he was wrong to do so. That being so, we are faced not merely with the identification by the victim of the Appellant as one of his attackers but also admissions by the Appellant not only that he was present but that he was actively participating in an attack on the victim.

6.  His story was that he left Rocky Bay in the garage proprietor’s car and later alighted and walked home but that he was not at the scene at all at the time of the attack. He admits that he passed near the scene of the attack on his way home but despite having been involved in the discussions about compensation, he apparently neither wished to be present when the payment was finally made nor before going home did he make any inquiries to ascertain whether the matter had been finally settled.

7.  The Appellant has emphasised before us that the victim was unable to say exactly what each of his assailants did in the course of the attack. That is of course true, but the victim as in no doubt that the Appellant was one of his attackers and that each one of his attackers did in fact hit him with weapons.

8.  The learned judge was impressed with the victim as a witness. As I have said, he believed the police witnesses as to the taking of the statements, and in our view it is impossible for us to say that the learned judge came to a wrong decision. It was entirely a question of fact to be decided by him on a consideration of all the evidence.

9.  The application must be dismissed.

10.  As this is the renewal of an application which was dismissed by the single judge there will be an order that the time spent in custody pending the appeal do not count towards the sentence.

13th February, 1973