HKSAR v. Choi Man Wai and Another

CACC000126/2000

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 919/1999)

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

Date of Hearing: 27 October 2000

Date of Judgment: 27 October 2000

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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. A1 was convicted after a trial in the District Court before H H Judge Chua of one count of wounding with intent contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212 and one count of criminal damage contrary to s 60(1) of the Crimes Ordinance, Cap 200. A2 was also convicted on these counts and in addition was convicted of one count of reckless driving contrary to s 37 of the Road Traffic Ordinance, Cap 374. Both men were sentenced to a total of 3  1/2 years imprisonment. They both seek leave to appeal against their convictions. A2 also seeks leave to appeal against the sentences imposed upon him. As A2 now wishes to be legally represented we agreed to his application being adjourned.

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

3. 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.

4. 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.

5. After PW1 got out of his car he saw A1 and A2. They approached him with eight or ten other men. 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.

6. 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.

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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. The first and second grounds of appeal can conveniently be dealt with together:

"1. The learned judge erred in concluding (p.12 N) that it was unlikely that the 1st Appellant's injuries could have been caused by the impact of the side of a car driven at him at very high speed. Such conclusion was

(a) speculative; and

(b) contrary to	(i)	the expert medical evidence    (p. 164Q, 165A); and
	(ii)	the evidence of Defence witness 1.

2. The learned judge failed to analyse or resolve the issue as to how the 1st appellant sustained his serious injuries - a crucial part of the 1st Appellant's case. His evidence on this issue was supported by Defence witness So Yin Ling whose evidence was not properly considered by the learned judge."

14. There is a problem concerning this evidence. On the evidence which was available it would not have been open to the Judge to infer as she had that A1 either slipped or fallen or someone had run into him. There was no medical evidence which would have supported this thesis.

15. The injuries sustained were quite serious. They consisted of a fractured tibia and a dislocation of the right wrist.

16. It is apparent that the doctor thought that the injuries would have been consistent with either a fall from a height or from an impact from a moving vehicle.

17. There is also complaint that the Judge disregarded the evidence of Miss So who was A1's witness and gave insufficient reasons for this.

18. The question of the amount of detail that a District Judge sitting without a jury should give in his reasons for verdict was considered by the Court of Appeal in HKSAR v Choi Gin-ngon and Others [1998] 1 HKLRD 902. At p. 909 I referred to the observations made by Blair-Keer J in R v RE Low:

"It was contended by Mr How that a District Judge's statement of his reasons for verdict prepared in pursuance of s.30 of the District Court Ordinance (Cap. 336) was comparable to a judge's summing up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and fact which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable."

19. We are satisfied that this is an accurate statement of the requirements which must be adhered to.

20. At the commencement of her commentary on the defence evidence the Judge stated that both defendants were "poor witnesses, evasive, prevaricating and unconvincing". Earlier when commenting upon Miss So's evidence the Judge referred to the fact that she only made a report to the police two days later and then only after speaking on the telephone with A1.

21. It seems obvious that it was mainly on account of this that the Judge rejected her testimony. In our view the requirements outlined by Blair-Keer J have sufficiently been met and there was a sufficient commentary on the evidence to enable the applicants to be aware of the reasons why they were convicted of these offences.

22. That then leaves the question of the Judge's speculation concerning A1's injuries and how she received them.

23. We agree with the submissions made by Mr Lee for the Department of Justice that this question was not a matter of prime importance. There was no necessity for the Judge to make any determination as to how A1 received his injuries. It would have been very much better if the Judge had not indulged in this speculation. However it does not indicate to us any basic misunderstanding of the overall situation and her remarks are not such as to render the convictions unsafe or unsatisfactory.

24. Grounds three and four can also conveniently be considered together:

"3. The learned judge erred in concluding (p.14 H) that the 1st Appellant, aggrieved that PW1, who had worked only for him in the past, should be queuing with his friends for a rival speculator and led the attack on him. This was speculative and unsupported by any evidence before the learned judge.

4. Given:

(a) the backgrounds of PW1 and PW2, the principal witnesses for the prosecution (p.2 1 and 22);

(b) the inconsistencies within the prosecution case;

(c) the relatively modest degree of injury sustained by PW1 when compared with the nature of the attack claimed by him and PW2;

(d) the failure to locate any sleeping bags (the claimed reason for the return of PW1 and PW2); and

(e) the lack of any independent witnesses on crucial issues"

25. There was evidence that PW1 had worked for A1 in the past. There was also evidence that he was working for someone else on the day in question. It is not however necessary to prove any particular motive and nothing turns on the Judge's speculation as to what might have been A1's motive in attacking PW1.

26. The Judge would clearly have been mindful of the principal witnesses characters and this would have been a factor she would have weighed in the balance. She was also aware of the inconsistencies in the evidence.

27. It has by no means been convincingly established that the injuries sustained by PW1 were inconsistent with the amount of violence he claimed was inflicted upon him. He was perhaps fortunate that the injuries were not more serious.

28. There was nothing inherently improbable in the prosecution version of the events which transpired that afternoon.

29. The Judge did not deal in her reasons for verdict with the question as to whether the original encounter was a chance encounter or whether either party had planned it. There would appear to have been insufficient credible evidence concerning this.

30. However what the Judge was prepared to believe was that A1 was at the site when PW1 returned and that he was accompanied by other men who were armed in the manner described.

31. There was sufficient evidence for the Judge to conclude that there was bad blood between PW1 and A1. Mr Lee referred us to passages in the transcript which bore this out.

32. No significance can attach to the fact that no sleeping bags were found later. There may be any number of explanations for this.

33. So far as A1 is concerned there was ample evidence to support these convictions. They are in no way unsafe or unsatisfactory. His application is dismissed.

Representation:

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

Mr Gary Plowman, SC and Mr Peter Duncan, instructed by Messrs Angela Wang & Co for the 1st applicant

Lam Chin-cheung, Raymond, 2nd applicant in person

Remarks:
On application by the 1st Applicant (A1) to the Appeal Committee of the Court of Final Appeal. Leave to appeal dismissed. Please refer to FAMC000023/2001.