HKSAR v. Lam Chin Cheung Raymond

CACC000126A/2000

CACC 126/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 126 OF 2000

(ON APPEAL FROM DCCC 919 OF 1999)

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Coram: Hon Mayo VP, Yeung J and Burrell J in Court

Date of Hearing: 19 July 2001

Date of Judgment: 19 July 2001

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1.A2 was D2 at the trial below in the District Court before H H Judge Chua. He was convicted of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, causing criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap. 200 and reckless driving, contrary to section 37 of the Road Traffic Ordinance, Cap. 374.

2.He was sentenced to a total of 31/2 years imprisonment. He is seeking leave to appeal against his convictions. Initially he also was seeking leave to appeal against the sentences imposed but he abandoned his application and it is dismissed.

3.Originally his application was set down to be heard with A1's application. He was D1 in the trial below. At that hearing A2 applied for an adjournment to enable him to obtain legal representation. His application was acceded to and he is now legally represented.

4.A1's appeal was proceeded with and was dismissed. For the sake of convenience we will be adopting the background facts which were set out in the judgment which was delivered on A1's application in as much as the facts were relevant and germane to this application.

5.All of the charges arose out of an incident which occurred on 17 December 1998 at Deer Hill Bay, Tai Po.

6.PW1 the victim of these charges gave evidence that on the day in question he had been queuing with prospective purchasers of flats at this development. He had previously queued for flats for A1 who it appears was a property speculator. He had done so for payment of a fee of $1,000 per day. On the instant occasion he had been queuing for someone else. At about 3 pm an announcement was made that sales would be postponed until January. PW1 left together with his friend Mr Yip who gave evidence as PW2.

7.They went to tea at Tai Po and were joined by PW1's girlfriend who gave evidence as PW4. After tea they returned to Deer Hill Bay so as to retrieve sleeping bags which had been left at the site. PW4 followed in her car and she parked it in close vicinity to PW1's.

8.After PW1 got out of his car he saw A1. He approached him with eight or ten other man. PW1 asked A1 why he had not paid him for queuing for him on a previous occasion. At this point A1 pulled out a flat object wrapped in a newspaper and placed it on his shoulder and said 'What fucking calculation? I declare war on you' whereupon PW1 was struck on the head and his mobile telephone was snatched from him. He was then set upon by a group of men carrying torches and wooden sticks. He managed to escape to his car. He attempted to drive his car away but a grey Toyota motor car registration number FU 9199 was driven into the right side of his car and this and another car repeatedly crashed into his car thus immobilising it.

9.When he got out of his car he was chased by the group of men. At this time he saw FU 9199 which was driven by A2 who he recognised as A1's general factotum approaching him at high speed and obviously attempting to run him down. He succeeded in jumping onto the bonnet of the car but later fell off it. He and PW2 managed though to escape to PW4's car which she was driving away. She drove PW1 to hospital where he was treated for his injuries and a report was made to the police.

10.In the meantime the group of men continued to damage extensively PW1's car with the weapons they were using.

11.PW2 largely corroborated PW1's version of events. There were some inconsistencies in their evidence as was pointed out by the Judge. PW4 also gave evidence which was in conformity with their evidence.

12.There was also other helpful evidence. PW7 an independent witness who works for Centaline Properties gave general details of the incident which were consistent with the testimony of the other prosecution witnesses. The importance of his evidence was its independence although it was in some respects lacking in detail.

13.The other significant evidence for the prosecution was the fact that A2's fingerprints were found on a newspaper which had been used to wrap up a hammer which appears to have been the instrument PW1 was referring to when he described the initial attack upon him. No explanation was forthcoming to explain the presence of these fingerprints on the newspaper.

14.Both applicants gave evidence at their trial and A1 called a witness. A1 said that he had been at the site on the afternoon in question. Someone had approached him and asked for money. He refused this request. While he was walking around he saw a silver car registration number DN 9111 (which belongs to PW1) being driven at a high speed. He was unable to avoid it and it came into contact with him causing him severe injuries. He was taken to hospital for treatment. It is significant to note that at the hospital when asked by the doctor what was the cause of his injuries he said that he had fallen from the window on the 1st floor of a building. The witness he called was a lady Miss So he had known for some time. She gave evidence that she had been at the site. She had seen the car which had run A1 down coming into contact with him. She agreed in cross-examination that she had only reported the accident to the police on 19 December 1999 and that this had been after A1 had spoken to her on the telephone.

15.A2 also agreed that he had been at the site. He had been aware that fighting had taken place but that he personally had not been involved in it.

16.In her reasons for verdict the Judge made it clear that although she was aware that PW1 and PW2 both had criminal records she had been satisfied that they had been telling the truth and that their version of the events which had taken place was essentially truthful. She had not been impressed with either applicant as witness of the truth. She had been satisfied at the appropriate level that all of the charges had been proved.

17.A2's first ground of appeal is that the Judge had intervened during the course of the trial to such an extent that he had been deprived of a fair trial. Passages from the transcript are then given in support of this complaint.

18.There have been a number of cases recently where this has been a cause of complaint.

19.The mere fact that a judge may have intervened on numerous occasions does not of itself mean that the trial has not been conducted in a perfectly proper manner. The circumstances of each case will be different.

20.It may be the case that it is necessary for the judge to intervene if he or she is to fully understand either the evidence or the submissions which are proceeding before him/her.

21.It may also be necessary for the judge to intervene to exclude irrelevance and discourage needless repetition.

22.One of the factors which has to be weighed in determining whether the interventions have been excessive is whether looking at the matter as a whole the defence has been hampered in advancing its case. In this connection much will also depend upon whether the interventions have been made in a spirit of animosity or whether they have been of a constructive nature.

23.The ultimate test is whether considering the trial as a whole it can be said that the defendant has had a fair trial and that any conviction was safe and satisfactory.

24.In applying this criteria to the present case it has to be said immediately that the interventions were in no way excessive. Generally they were constructive and helpful.

25.Up until p. 62 of the transcript there were very few interventions by the Judge and in each case the interventions were entirely proper. From pages 62 to 72 there are numerous interventions. These interventions were made when PW1 was giving evidence concerning where the different cars were located at the time of the assault and how it was that he had been obstructed in effecting his escape. This was also of relevance in connection with his evidence as to how he managed to get to his girl friend's car and then escape.

26.PW1 was making rather heavy weather of his evidence. The Judge by her interventions was able to considerably clarify the position. This assistance was constructive and fair and rather than hampering the defence appears to have been helpful to all concerned.

27.Following this there were not many interventions. Certainly taken as a whole it cannot be said that the interventions came anywhere near to amounting to an irregularity or being in any way improper. There is no merit in this ground.

28.The second ground is that the Judge erred materially when she stated that A2 was with A1 when PW1 returned to the site. It is true that the Judge does appear to have erred. PW1 only identified A2 as being the driver of FU 9199. The mistake however was not material. It is clear from the evidence that very shortly following A1 and his associates assault on PW1 FU 9199 was according to his evidence driven into his car. Clearly this was all part of the joint enterprise contended for by the prosecution. There was evidence that A2 was part of the group.

29.The third ground is that the evidence of the two principle prosecution witnesses was open to grave doubt by virtue of their background and criminal convictions and the serious discrepancies in their evidence.

30.A1 made a similar complaint in his grounds of appeal. There is nothing in the complaint. The Judge was fully aware of both men's criminal records and she kept this in mind when making her assessment of their evidence. For the reasons she gave she was nonetheless prepared to accept their testimony.

31.The fourth ground is that the Judge failed to give cogent reasons for rejecting the evidence of the independent witness PW7 when his evidence supported the defence contention that another group was involved in fighting at the same time.

32.With respect this ground is somewhat unrealistic. It has to be borne in mind that the situation which obtained would have been confused and it would have been difficult for any onlooker to know where one fight ended and another began or whether it was all part and parcel of the same fight. Not surprisingly PW7 was vague in some respects as to exactly what had transpired. What is true however is that PW7's evidence was generally consistent with PW1's and supported his evidence that he had been a victim of an attack. Specifically PW7 said that he saw the people from car FU 9199 chasing the people from car DN 9111 which is the registration number of PW1's car.

33.In the fifth ground complaint is made concerning the impossibility of DN 9111 having been manoeuvred in the manner stated by PW1 in all the surrounding circumstances. If the evidence including the sketch plan is considered in detail it would not have been impossible for DN 9111 to have turned around and ended up in the position indicated by PW1 in his evidence. In addition to this there was no prosecution evidence that FU 9199 had overtaken DN 9111. This ground is without merit.

34.This conviction was in no way unsafe or unsatisfactory and the application is dismissed.

Representation:

Mr Robert S K Lee, SADPP and Miss Evelyn Tsang, GC of the Department of Justice, for the respondent

Mr David Mackenzie Ross, instructed by Messrs Chan & Cheng for the 2nd applicant