HKSAR v. Tang Yi Hang

CAC C 146/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 146 OF 2013

(ON APPEAL FROM DCCC NO. 1001 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the Judgment of the court)

1.The applicant seeks leave to appeal against his conviction after trial on 22 April 2013 by District Court Judge Yiu of three charges, namely that together with persons unknown:

(i) had acted as members of a Triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151 (charge 1);

(ii) assaulted Luk Kin Ming, thereby occasioning him actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212 (charge 2); and

(iii) without lawful excuse damaged computers, their monitors and other property belonging to Lau Hoi Shuen, intending to damage such property or being reckless as to whether such property would be damaged, contrary to section 60 (1) of the Crimes Ordinance, Cap. 200 (charge 3).

2.The judge imposed sentences of 18 months imprisonment in respect of each of charges 1 and 2 and 12 months imprisonment in respect of charge 3.  He ordered that the sentences of imprisonment imposed in respect of charges 2 and 3 be served concurrently and that 6 months of the sentence of imprisonment imposed in respect of charge 1 be served consecutively to the sentences imposed in respect of charges 2 and 3.  Accordingly, the total sentence of imprisonment imposed on the applicant was 24 months.

THE TRIAL

3.There was no dispute at trial that at about midnight on 20 August 2012 a group of 10 or so men burst into an Internet café, shouting that they were looking for members of a Triad society.  Some of them then used glass bottles to attack and injure Luk Kin Ming, a part-time worker and sometime patron of the café (charge 2).  Some of them damaged computers on the premises.  Lau Hoi Shuen, the proprietor, happened to be cutting up fruit at the time of the melee and emerged from the kitchen brandishing a chopper.  He stood at the entrance to the premises preventing the men from leaving by that route. Someone in the group shouted out, “We are Sun Yee On. You let me go and we would compensate you.”  Mr Lau refused and continued to block the entrance.  As a result, the men forced open a window of the first floor café premises and the men make good their escape by jumping one by one through the window to the ground below.

4.Mr Lau made his way down to the ground floor, where 6 or 7 minutes later he found the applicant around the corner of the building lying on the ground with obvious injuries to his ankle, from which he was bleeding.  The spot at which he lay was about 35 feet away from the ground directly beneath the window through which the men had jumped.  There was no one else about.  PC 13354 testified that he attended the scene and arrested the applicant.  The injury was to his right ankle.

5.The applicant did not give or call evidence.

REASONS FOR VERDICT

6.The crucial issue in the case was whether or not the applicant was one of the group of men who had damaged property in the café and caused injury to Mr Luk.

7.Having noted the evidence of PC 13354 that later on 20 August 2012 a doctor had determined that the applicant was not in a fit condition to give a statement to the police and having regard to the fact that the applicant had not been cautioned and that his alleged admissions had not been properly recorded, the judge said that he placed no weight on the alleged oral admission by the applicant to PC 13354 at the place where he had been found that he had jumped from the window of the café.

8.The judge noted that Mr Lau testified that at the time of the melee the café was dark with all the curtains drawn.  The situation was chaotic.  In summoning the police to arrest the applicant, he had done so because of the fact of the applicant’s injury and where and when he had found the applicant, not because he recognised him as one of the assailants.

9.In the result, the judge concluded that the ambit of the prosecution evidence was of narrow compass, namely that at about midnight the assailants had jumped out of a window of the café that was “10 odd to 20 feet above the ground” and the applicant was found 6 or 7 minutes later about 35 feet away with an injured ankle.  There was no one else about.  Of that evidence, the judge posed the rhetorical question as to “what other possibility or inference” could be drawn other than that the applicant was one of the assailants in all the circumstances, “in the absence of any other evidence to indicate or suggest otherwise.”

10.In the result, the judge concluded, “the only irresistible inference was clearly that the defendant must have had jumped from the window, he hurt himself and could not escape.”  Accordingly, he determined that the applicant was one of the group of assailants and found him guilty of the three charges.  Earlier, the judge had ruled that the applicant had ‘no case to answer’ in respect of the charge of claiming to be a member of a Triad society, contrary to section 20 (2) of the Societies Ordinance, Cap. 151, noting that there was insufficient evidence to prove by whom the claim had been made.

GROUNDS OF APPEAL AGAINST CONVICTION

11.On behalf of the applicant Mr William Hui submitted that the judge erred in determining that the only irresistible inference to be drawn from the evidence was that the applicant was a part of the group of assailants.  Although the applicant had been found lying injured some 6 or 7 minutes after the assailants decamped some distance away from the ground beneath the window of the café from which the assailants had jumped, there was no evidence that the applicant had jumped out of the window of the café or how he sustained his injuries. In his oral submissions today, Mr Hui pointed out that the prosecution had accused no DNA evidence of the presence of the applicant in the premises.

12.Further, it was submitted that the judge erred in law as criticising the applicant for not having given an explanation for his presence, lying on the ground with an injured ankle a short distance away from the Internet café 6 or 7 minutes after the applicants had jumped out of the window of the café.

A CONSIDERATION OF THE SUBMISSIONS

13.No medical evidence was adduced as to the specific injury suffered by the applicant before he had been found lying on the ground in the vicinity of the Internet café.  Such evidence as there was, was to the effect that he had an injured right ankle from which he bled sufficiently to have left pools of blood on the ground depicted in the photographs of the place of his arrest.  Obviously, the injury was of recent origin.  Similarly, there was no specific evidence of the height of the open window in the Internet café above the ground immediately beneath that window, other than the general evidence that the Internet café was on the first floor.  Immediately beneath the window photographs of the scene depict several large external air conditioning units in their own metal housing attached to the wall.  The ground beneath is a brick pavement and slopes away to one side.  No issue is taken with the judge’s estimate that the ground lay some 10 odd to 20 feet beneath the window.  In all those circumstances, it is clear that the injury sustained by the applicant to his right ankle was consistent with having been caused by having fallen awkwardly having jumped out of the open window of the Internet café.

14.Given that the applicant was found at midnight, with no one else about, within 6 or 7 minutes of the group of assailants decamping through the window of the café at a distance of only 35 feet away from the ground beneath that window, those circumstances “cried out for some explanation of the appellant” which might be consistent with innocence.  (See the advice of the Privy Council given by Lord Keith in R v Tan Siew Gim[1].) The judge was entitled, in determining whether or not to draw an inference adverse to the applicant, to have regard to the absence of any other evidence, “to indicate or suggest otherwise.”  Mortimer JA, as he was then, in the judgment of the Court of Appeal in The Queen v Chong Kin Cheong[2] observed of the absence of evidence called by the applicant:

“…This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge’s task when considering the facts put before him to imagine possible defences of which there is no evidence. …”

15.In Li Defan & Another v HKSAR[3] Lord Hoffmann cited with approval a passage from the joint judgment of Mason CJ, Deane and Dawson JJ in the High Court Australia in Wiessensteiner v The Queen[4]:

“There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.”

16.Clearly, the judge’s observation as to the absence of any other evidence that might undermine the drawing of an inference adverse to the applicant was a not criticism of the fact that he did not give evidence and thereby an encroachment on his right of silence.  Rather, it resonated with the passage cited by Lord Hoffmann from Wiessensteiner. It was an inference otherwise available which, in those circumstances, could be drawn more safely.

Conclusion

17.In the result, we are satisfied that, having regard to all the evidence, the judge was entitled to infer that the applicant was one of the group of assailants involved in the melee in the café and to convict the applicant of the 3 charges.  Accordingly, the application for leave to appeal against conviction is refused.

Mr Edmond Lee, SADPP, of the Department of Justice, for the respondent

Mr William K.F. Hui, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the applicant

[1]   R v Tan Siew Gim [1995] 1 HKCLR 299 at page 303.

[2]   The Queen v Chong Kin Cheong (CACC 196/1995; unreported, 18 August 195, paragraph 9 at page 3.)

[3]   Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at page 333A-B.

[4]   Wiessensteiner v The Queen (1993) 178 CLR page 217 at pages 227-9.