HKSAR v. Iqbal Pervaiz

CACC 62/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2014

(ON APPEAL FROM DCCC NO. 737 OF 2013)

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BETWEEN

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1.The applicant seeks leave to appeal against conviction after trial by a District Court Judge Dufton on 4 February 2014 of a single charge of wounding Kung Ho with intent on 7 June 2013, contrary to section 17(a) of the Offences Against The Person Ordinance, Cap. 212.

The trial

The prosecution case

2.There was no dispute that at about 08:50 a.m. on the morning of 7 June 2013 Mr Kung Ho was attacked with an umbrella by the 1^st defendant at trial, Abbas Yasir, as he walked away from the car which he had just parked in the car park on the lower basement floor of Nina Tower, 8 Yeung Uk Road, Tsuen Wan.  The movements of the four defendants at trial and that of Mr Kung Ho were captured on CCTV film.

3.The prosecution case was that the applicant was one of four parties to a joint enterprise to wound Mr Kung Ho with intent.  They had been observed first of all by PC 13817 at 07:57 a.m. at the West Rail Station.  Then, they were observed using a footbridge to cross to Nina Tower.  Next, they were captured on CCTV film using a lift to descend inside the building to the lower basement car park.  Other CCTV film captured their movements in the lower basement car park. While the 1^st defendant was seen walking to and fro in the road area adjacent to a fire escape door, the other defendants loitered in the vicinity of a nearby car parking place.  As Mr Kung Ho walked towards and then came alongside the 1^st defendant, the latter struck him a blow to the face with an umbrella swinging the umbrella through a large arc in doing so.  As he did so, the other three defendants advanced quickly towards the place of attack.  As Mr Kung Ho stepped backwards in face of the blow, the 1^st defendant struck several other blows.  The 2^nd and 3^rd defendants closed in on the two of them.  Someone, other than the assailant with the umbrella, punched Mr Kung Ho.  There was no dispute that the applicant had not delivered any blow to Mr Kung Ho himself.  As the judge noted in his reasons for verdict, the prosecution case against the applicant was that “by his presence in the car park, as part of a prior agreement to attack Mr Kung, he lent support to that attack.” [1]

Injuries to Mr Kung Ho

4.In his reasons for verdict the judge described the injuries to Mr Kung Ho as being, “a soft tissue laceration of the apex of the root of one of his teeth which required one intra oral black braided silk suture.” [2]

The defence case

5.The applicant did not avail himself of the right to give or call evidence at trial.  However, the 2^nd defendant at trial did testify.  In his reasons for verdict, the judge summarised the defence case as being, that: [3]

“ D1 acted alone. D2 and D4 on seeing D1 attack Mr Kung with the umbrella tried to separate D1 and Mr Kung. D3 wanting nothing to do with the attack left the car park.”

Grounds of appeal against conviction out of time

6.By Form XI, which was filed with the court on 25 February 2014, the applicant gave notice of his application for leave to appeal against his conviction.  Attached to the form are the grounds on which he seeks to do so, namely that he relies on the grounds advanced at his trial by his counsel, Mr Beel.  In the reasons for verdict, the judge identified those grounds as being: [4]

“   that there is no evidence that D3 knew there was to be an attack and that from the CCTV footage there is no indication that he assisted in anyway by his presence in the car park.  Mr Beel further submits that even if the court was to find D3 may have known about the attack his actions in the car park show that there had been effective withdrawal from any enterprise.  Mr Beel concludes by saying that by his actions D3 showed he wanted no part of what was happening and that there is a strong inference from how he behaved that D3 “…appeared shocked and wanted to get away as quickly as possible.” ”

7.At the hearing, the CCTV film of the lift journey of the four defendants to the lower basement of Nina Tower, together with the CCTV film of the lower basement car park were played in court.

A consideration of the submissions

8.In his reasons for verdict, the judge rejected the submissions of counsel as to the inferences to be drawn from the applicant’s movements in the car park.  Referring to the CCTV film, he said: [5]

“ I have no hesitation in rejecting this submission. Whilst D3 heads towards the fire exit doors he does not immediately leave but instead stops near to the fire exit door for 2-3 seconds watching what is happening. D3 only leaves once D1 has pushed away Mr Kung and starts to run for the exit. This can be seen on the CCTV footage between 08:50:04 to 08:50:09 with D3 leaving the car park at08:05:07 (4658) and D1 at 08:05:09 (4691). ”

9.In light of the evidence of the movements of the four defendants that morning, in particular that of the applicant, the judge said: [6]

“ Taking into account inter alia:

(i) the defendants were together for at least 45 minutes prior to the attack on Mr Kung;

(ii) they all went together to the car park where they waited until the arrival of Mr Kung who arrived by car;

(iii) D3 was present when D2 said to Mr Wong they were “waiting for vehicle”;

(iv) there was no other apparent reason for them to be waiting in the car park other than waiting for Mr Kung;

(v) the inherent improbability D1 would go to the car park with anyone else unless they were party to a prior agreement to attack Mr Kung;

(vi) D3 left only when D1 had stopped attacking Mr Kung and had started to run for the exit; and

(vii) at no time did D3 make any attempts to stop D1 from attacking Mr Kung,

I am satisfied so I am sure the only inference to draw is that:

(1) D3’s presence in the car park was as a result of a prior agreementto attack Mr Kung intending to cause Mr Kung serious bodily harm; and

(2) notwithstanding D3 did not hit or come into physical contact with Mr Kung by his continued presence in the car park until D1 had stopped attacking Mr Kung and was running towards the exit to leave D3 intended and did by his presence encourage the attack on Mr Kung and was ready and willing to assist in that attack if so required.”

Conclusion

10.I am satisfied that there is no merit in the grounds of appeal against conviction.  Accordingly, the application of for leave to appeal against conviction is dismissed.

Mr Prakash L. Daryanani, SPP, of the Department of Justice, for the respondent

Applicant appeared in person

[1] Reasons for Verdict, paragraph 4.

[2] Reasons for Verdict, paragraph 15.

[3] Reasons for Verdict, paragraph 5.

[4] Reasons for Verdict, paragraph 71.

[5] Reasons for Verdict, paragraph 72.

[6] Reasons for Verdict, paragraph 73.