HKSAR v. Lee Kwok Lam

CACC 201/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 201 OF 2012

(ON APPEAL FROM DCCC 1340/2011)

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BETWEEN

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J U D G M E N T

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Hon Beeson J (giving the judgment of the court):

Introduction

1.The appellant was convicted by Judge Douglas Yau after trial in the District Court, on 3 charges:

Charge 1:   Conspiracy to wound with intent to do grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 and sections 159A and 159C of the Crimes Ordinance, Cap 200;

Charge 2:  Possession of offensive weapons in a public place, contrary to section 33(1) of the Public Order Ordinance, Cap 245;

Charge 3:  Dangerous Driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374.

The appellant now seeks leave to appeal against his conviction on Charges 1 and 2 only.

Background

2.The intended victim was a 61-year-old retired man who was referred to during the trial as “Mr X”.  He was involved in a dispute over his ancestral home in a village in Mainland China.  He had been threatened by persons there that he would be in danger if he refused to cooperate with a development scheme which needed to demolish his house to proceed.  A few days after the threat he was assaulted by someone and he reported the case to the Mainland police. 

Prosecution case

3.At about 7:43 am on 15 September 2011, acting on information, a police party was waiting near Wa Tai Road and saw a private car driven by the appellant (who was D1 at trial), stop near lamp post No W1643 on the northbound Wa Tai Road.  Police officers kept observation. A minute later a second car driven by D2 with D3 and D4 as passengers, pulled up close behind the appellant’s car.  The appellant alighted from his car, walked to the car behind him, and returned with an object resembling a registration plate held in his hand.  He was seen squatting in front of his car.  After a short while, D2 and D3 alighted from their car and the three men chatted together.  The three men then returned to their respective vehicles and the police officers observed that the registration plates on both cars had been changed during the time since their arrival. 

4.At 7:55 am three police vehicles were called to the scene to intercept the two cars.  In an attempt to avoid capture the appellant drove in such a way that damage was caused to the police vehicles blocking his exit.  This was the basis for Charge 3, the dangerous driving charge.  The appellant refused to leave his car when asked to do so.  The police broke open the window of the car and arrested the appellant.  D2 also tried to escape by reversing suddenly and his car collided with one of the police vehicles.  There was some minor damage to the police vehicles, but nobody was injured. 

5.On being cautioned at the scene post-arrest the appellant said “Ah Sir, it was Ah Chung (D2) who had asked me to drive the car here, he said that after I had driven the car here, Ah Chung would repay the $5,000 that he owed me.” 

6.A search of the two cars revealed the following items.  In the appellant’s vehicle (V1) were:

(1)   a walkie-talkie which was switched on and ready to use;

(2)   3 caps;

(3)   2 pairs of labour gloves;

(4)   7 surgical masks; and

(5)   1 pair of fake registration number plates LN 5963 stuck over the original number plates PX 5009.

7.In the second car (V2) driven by D2 were:

(1)   a walkie-talkie which was switched on and ready to use;

(2)   4 caps;

(3)   5 pairs of labour gloves;

(4)   1 surgical mask;

(5)   1 pair of fake registration plates HD 9233 stuck over the original number plates PZ 4368;

(6)   2 18-inch beef knives with handles wrapped with bandages (one knife was found underneath D3’s seat, another knife was found underneath D4’s seat; and

(7)   2 coloured printouts of a photograph of “Mr X” showing his full address, his telephone numbers and the name by which he was usually addressed.

8.The two walkie-talkies seized from the cars were examined by police experts and were found to be configured by frequency in a way which allowed easy communication between them.

9.A driving test was conducted by an officer of the Organized Crime and Triad Bureau to check the distance between the scene of the arrest and the place of residence of “Mr X”.  That distance was found to be 1.7 km and from the place of arrest it took about 1 minute 54 seconds to drive there at an average speed of 70 km per hour.

The trial

10.It was common ground that the only evidence available against the appellant was circumstantial evidence and in consequence the single issue was whether the judge had been justified in drawing therefrom the irresistible inference that the appellant knew of the presence of the two beef knives in the car and that he was party to a conspiracy to wound “Mr X” and cause him grievous bodily harm.

11.The prosecution called the intended victim Mr X to set the background to the case and called 6 police officers who gave evidence of their observation of the two vehicles and the subsequent arrests.  Admitted Facts were also put before the court.  The most significant items of agreement were:

(1)   The finding of caps, gloves and masks in both cars.

(2)   The finding of two knives in the second car.

(3)   The finding of one walkie-talkie unit in each car.

12.The appellant was represented at trial.  He elected not to give evidence and did not call any witnesses.  It was an admitted fact that when arrested and cautioned he told the officer that it was D2 who had asked him to drive the car to the meeting place.

Reasons for Verdict

13.The gravamen of the judge’s findings is found at paras 60 to 68 for his Reasons for Verdict:

“60. I find that based on the circumstantial evidence recited above, it is an irresistible inference that D1 had conspired with D3, D4 and the other male in the car behind. I find that their agreement must be that they were to wound PW1 with the intention to cause him grievous bodily harm. This finding is based on the presence of the 2 beef knives which were obviously adapted for use to attack and cause serious injury to another person. It is clear that D1 and those in the car behind were communicating through the walkie-talkies. The masks and gloves and caps were to be used in the attack. The handles of the beef knives had been covered with bandages which would ensure that no fingerprints were left behind. The photos of PW1 was for reference so that they would be able to identify PW1 for the attack. The fact that D1 had driven to a place within 2 minutes’ drive from PW1’s residence goes to show their intention to carry out the agreement to wound PW1.

61. I find D1 guilty of Charge 1.

Charge 2: possession of offensive weapon

62. I find first of all that the beef knives are offensive weapons per se. Even if they are not, they are clearly adapted for use for causing injury to the person. Although they are classified as ‘beef knives’, the fact that the handles were wrapped with bandages goes to show that they have been adapted for causing injury without leaving any fingerprints on the handles should the knives be left behind at the scene of an attack.

63. The next question to consider is whether D1, together with D2 to D4 ‘had with them’ the knives.

64. Since the knives were found not in the vehicle driven by D1 but in the vehicle that had stopped behind, the prosecution must prove beyond reasonable doubt that D1 knew that the others had with them the knives.

65. Based on the available circumstantial evidence, I find that D1, together with D3, D4 and one other male had agreed to wound PW1 with the beef knives found in the vehicle behind. I find that because of the close connection between D1 and those in the car behind, as indicated by the walkie-talkies, the fact that they had arrived at the scene one after another, the fact that 2 of the people from the car behind had alighted and walked to D1 to chat with him, the fact that both cars had multiple pairs of gloves, surgical masks and caps which are items capable to be used to conceal one’s face, the fact that both cars had fake licence plates installed, and the fact that PW1’s photos were found in the glove compartment of the car behind, it is an irresistible inference that D1 knew that those in the car behind had with them the 2 beef knives.

66. I find also that D1 knew and intended for those beef knives to be used to cause injury to PW1.

67. I find that there is no lawful authority for D1’s possession of the knives, nor are there any reasonable excuses.

68.   I find D1 guilty of charge 2.”

The Appeal

14.The appellant’s perfected grounds of appeal against conviction were as follows:

Ground 1:  The conviction of “Conspiracy to wound with intent to do grievous bodily harm” was unsafe and unsatisfactory in that:

(a)   there was no or no sufficient evidence to prove that the appellant knew of the presence of the two knives in the car;

(b)   there was no or no sufficient evidence to prove that the appellant knew the knives were to be used;

(c)  there is no or no sufficient evidence to prove that the appellant agreed with the others to wound “Mr X”.

Ground 2:  “Possession of offensive weapons in a public place” was unsafe and unsatisfactory in that:

(a)   there was no or no sufficient evidence to prove that the appellant knew of the presence of the two knives in the car; and

(b)   there was no or no sufficient evidence to prove that the appellant would harm the victim with the two knives.

15.Mr David Ma, of counsel, for the appellant, submitted that the trial judge’s approach in determining the matter was wrong.  He submitted that the primary issue was to determine whether the evidence was sufficient to prove beyond reasonable doubt that the appellant was aware of the presence of the two knives in the car behind him.  He submitted that it was wrong for the judge to find first that the appellant was a party to a conspiracy, before he had identified the elements of the conspiracy.  He argued that the judge must identify the terms of the conspiracy, before he could determine whether the appellant was part of that conspiracy. 

16.It is arguable whether the second charge was necessary at all as it was part and parcel of the conspiracy and the possession of the knives was proved by the same circumstantial evidence as was available to prove the first charge.  It might be said that the second charge was otiose in that it did not add anything to the gravity of the conspiracy to wound.  However the charges and the circumstantial evidences on which they are based are so entwined that complaints about the order in which they were considered are of no significance.

17.Counsel submitted further that although the evidence relied on by the judge as proving the charges may have raised grave suspicions that his client had entered into a joint enterprise to carry out some form of criminal or illegal activity, that there was insufficient evidence from which he could draw an irresistible inference that the appellant was engaged in a conspiracy to wound as against, say, a conspiracy to intimidate or kidnap the intended victim.  

18.On Charge 2 counsel pointed out that there was no evidence that the appellant had been inside the second car, nor was there any forensic evidence such as DNA or fingerprints to show any contact with the knives.  Thus there was insufficient evidence to establish his client’s guilt on either charge.

19.Counsel for the respondent submitted that in respect of Charge 2 the judge was entitled to find that from the circumstantial evidence he could draw an irresistible inference that the applicant together with the three men in the second car was in possession of the knives and that he intended their use.  In drawing that inference the judge relied on the evidence which showed the extremely close connection between the two cars and the occupants thereof. 

20.This was a joint enterprise and a plan was in the process of being carried out in a manner which demonstrated that the occupants of the cars were in extremely close walkie-talkie communication; travelling in convoy in close proximity; each car was equipped with false number plates; the occupants were carrying similar equipment to conceal their identities and given those circumstances the applicant must have known of the presence of the knives and their proposed use in effecting the plan.  In essence this was a situation where the two vehicles and the occupants absent evidence to the contrary were inextricably linked.  In those circumstances the judge was entitled to draw the inference that he did.

Consideration

21.There was other evidence which, if accepted, (and the judge did accept it - see para 44 of the Reasons for Verdict) would allow the judge to draw an irresistible inference that the conspiracy was to wound rather than to kidnap or threaten.  Mr Franco Kuan, Senior Public Prosecutor, who represented the respondent, reminded the court it was necessary to look in context at the evidence given by Mr X, who was PWl.

22.Mr X told the court that in July 2011 the power and water supply to his ancestral home had been cut and that the door of the house had been prized open.  The house of his next door neighbour had been forcibly demolished.  He had been punched by someone when he attended a protest meeting.  He had been told also, by a former village chief, that if he did not agree to the demolition of his ancestral home for a redevelopment scheme he would be at a great disadvantage. 

23.Mr X identified himself as the subject of the copy photos found in the glove compartment of the second car and said they had been taken in Shenzhen in March or Apri1 2011, although not by him, nor did he know they had been taken.  Written on the back of the photos was his Hong Kong address, his telephone numbers and the name by which people commonly addressed him.  He told the court that he did not know what the defendants were up to.

24.Thus if the evidence of Mr X was accepted there had been committed against him a series of acts each escalating in gravity but which to the date of the appellant’s arrest had not succeeded in forcing him to capitulate as the developers demanded.  It is against that background that the circumstances of the case should be examined.

25.As to the reasons for inferring a conspiracy to wound rather than to kidnap or intimidate, Mr Kuan pointed out, that on the day of the incident there were no restraints or other paraphernalia commonly used in kidnapping found in either vehicle.  Moreover it was unlikely that knives of the type found were to be used simply to threaten the victim when previous threats had been ignored by Mr X.

26.The knives were 18 inch beef knives, formidable weapons, which had been carefully bandaged at their handles.  Commonsense shows that this would improve a user’s grip and also militated against the possibility of fingerprints being left on the wooden handles.  The latter result was important as it was likely that the weapons once used might be abandoned at the scene.

Conclusion

27.There was a solid body of circumstantial evidence on which the judge could find the appellant guilty of these offences. The judge found all the prosecution witnesses were honest and reliable.  The appellant elected not to give evidence or call witnesses as was his right.

28.The judge directed himself correctly, focused on the relevant issues, and found he could draw the necessary inferences which enabled him to be satisfied beyond reasonable doubt of the appellant’s guilt on each of the charges.

29.We are satisfied that there is no substance in this appeal and accordingly leave to appeal is refused.

Mr Franco Kuan, SPP, of Department of Justice, for the respondent

Mr David Ma, instructed by Chan & Tsu, for the applicant