HKSAR v. Rai Rushal

CACC 118/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 2013

(ON APPEAL FROM DCCC NO. 233 OF 2012)

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BETWEEN

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Before : Hon Lunn VP, McWalters JA and D. Pang J in Court

Date of Hearing : 15 August 2014

Date of Judgment : 15 August 2014

Date of Reasons for Judgment : 29 August 2014

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The applicant sought leave to appeal out of time his conviction on 6 July 2012 after trial by District Court Judge S. D’Almada Remedios of two charges of wounding Limbu Bob and Thapa Manish with intent on 20 November 2011 at the junction of Shanghai and Ning Po Streets in Yaumatei, Kowloon, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212. The applicant pleaded guilty to a charge of assaulting Rai Asish at the same time and place occasioning actual bodily harm, contrary to section 39 of the Ordinance. He was sentenced to a total of 4 years and 9 months’ imprisonment.

2.At the hearing we acceded to the application of counsel for the applicant, Mr  James McGowan, and received the transcript of the evidence of three witnesses for the prosecution [1] and the judge’s Reasons for Verdict in HKSAR v Gurung Chij Kaji [2], pursuant to section 83V(1) of the Criminal Procedure Ordinance, Cap. 221.  Those three witnesses gave evidence for the prosecution in the trial of the applicant (“the three prosecution witnesses”) and were referred to by the same alphanumeric designation in both trials.  Gurung Chij Kaji (“Gurung”), who had been arrested and charged only after the conclusion of the trial of the applicant, was acquitted after trial by District Court Judge Woodcock of wounding Limbu Bob and Thapa Manish respectively with intent on 20 November 2011 at the junction of Shanghai and Ning Po Streets in Yaumatei, Kowloon, contrary to section 17(a) and of assaulting Rai Asish at the same time and place occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212.

3.We allowed the application for an extension of time in which to file the application for leave to appeal against conviction, the applicant having explained in an affirmation that he had filed his Form XI Notice, giving notice of his application, on 8 April 2013 immediately after having learned of the acquittal of Gurung.  Treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the convictions of the applicant on Charges 1 and 2.  We said that we would give our reasons for so ordering in due course.  That, we do now.

The Trial

4.There was no dispute that the applicant and the three prosecution witnesses were involved in a melee at the junction of Shanghai and Ning Po Streets on the morning of 20 November 2011.  At issue in the trial was whether the applicant was one of a group of men who had attacked the three prosecution witnesses, or whether he himself had been attacked.

The prosecution case

5.The three prosecution witnesses testified that they had encountered Gurung at the junction of Shanghai and Ning Po Streets on the morning of 20 November 2011.  He was drinking a bottle of beer and gave another bottle to Rai Asish.  Gurung and Limbu Bob discussed an incident the previous day, 19 November 2011, at the I-One Cyber Bar, Parkes Street in which Limbu Bob had been approached by a Nepalese man, who accused him of having hit him in an earlier incident in August 2011 in the Space Bar in Wanchai.

6.After a short while they were joined by two other men Limbu Iswar and Rai Bishal.  Then, the other men attacked the three prosecution witnesses.  Limbu Iswar slashed the head, neck and arm of Limbu Bob with a knife.  Thapa Manish was struck on the head with a bottle of beer by someone and beaten on the back with a stick by the defendant.  In pleading guilty to assaulting Rai Asish, causing him actual bodily harm, the applicant accepted that he had attacked him with fists and had kicked him.[3]  Another group of men joined in the attack on the three prosecution witnesses.  Although Limbu Bob said that he escaped from the scene of the assault, he said that he had returned and viewed the ongoing assault on his two friends before taking flight, pursued by Gurung.  For their part, Thapa Manish and Rai Asish said that the assault on them continued until the arrival of a police officer on a motorcycle.  Then, their assailants decamped.

7.All three prosecution witnesses were treated at the Accident & Emergency Department at Queen Elizabeth Hospital on 20 November 2011.  Limbu Bob sustained an 8 cm laceration to the scalp, a 10 cm laceration to the left side of the neck and a 4 cm laceration to the forearm all of which required exploration and suturing.  He was discharged from hospital on 26 November 2011.  Thapa Manish was treated for several lacerations to his shoulder and back.  Rai Asish sustained bruising to his forehead and face.

8.On 6 January 2012 the three prosecution witnesses identified the applicant at identification parades as one of the group of their assailants and, in particular, as having used a stick to beat Thapa Manish.

9.The prosecution adduced into evidence a video record of interview of the applicant in which he admitted having been involved in the fight.  After he had been struck a blow, as he tried to separate combatants, he struck back.  Then, he had kicked a person as he lay on the ground (Charge 3).

The defence case

10.The applicant did not give or call evidence in the defence case.

Reasons for verdict

11.The judge described the applicant’s video record of interview as “disjointed, confusing and unhelpful”, with the result that she determined not to place any weight on the exculpatory statements.

12.Having acknowledged of Rai Asish (PW3) that there were marked differences in his witness statements of November 2011 in January 2012, the judge said that she accepted his explanation that the failure to provide a Nepalese interpreter in the taking of the first statement explained the differences.  Acknowledging that he had previous criminal convictions and was “prone to using violence”, nevertheless the judge determined that he was not an aggressor in the attack.[4]

13.Noting that there were differences between the three prosecution witnesses as to the circumstances in which the fight began, nevertheless the judge found that was explained by the chaotic circumstances arising from a sudden attack.[5]

14.In the result, the judge accepted the evidence of the three prosecution witnesses, finding them to be “honest and reliable witnesses”.  The judge went on to find that the applicant was a party to a joint enterprise to wound Thapa Manish and Rai Asish with intent to cause them grievous bodily harm.  She found that the applicant had struck Thapa Manish with a stick after having seen Limbu Bob attacked with a knife and Thapa Manish struck on his head with a bottle.[6]

Grounds of appeal against conviction

15.In the grounds of appeal against conviction advanced on behalf of the applicant, Mr McGowan submitted that the judge had erred in accepting the testimony of the three prosecution witnesses and determining that the applicant was a party to a joint enterprise to wound with intent to cause grievous bodily harm.  Next, it was contended that the judge had failed to provide adequate reasons for rejecting the applicant’s exculpatory assertions in his video recorded interview.  Then, it was submitted that the evidence adduced in the subsequent trial of Gurung cast grave doubt on the safety of the applicant’s conviction.  There was unambiguous evidence that Gurung had been wounded, apparently with a knife.  The Court was asked to note in particular the discrepancies in the evidence of the three prosecution witnesses in their testimony when compared with their testimony in the trial of the applicant and/or with their out of court witness statements.  Finally, it was to be noted that District Court Judge Woodcock had found that the credibility of the three prosecution witnesses had been “successfully exposed by defence counsel”, [7] with the result that she described them as being “not good witnesses” and found “I doubt that version of events was the entire truth”.[8]

A consideration of the submissions

16.There is no dispute that, in appropriate circumstances, evidence that emerges subsequent to trial that is relevant to the credibility of witnesses called for the prosecution at trial may be considered by an appellate court in its consideration of the safety of the conviction of the applicant.  At issue, is whether or not the evidence would have been admissible in cross-examination, if it had been available at the trial.  Clearly, that is the case in which witnesses testify about the very same events, about which they have given evidence in one trial, in a subsequent trial.

17.There is considerable force in Mr McGowan’s submission that the evidence that emerged in the trial of Gurung that he sustained a 10 cm laceration to his forearm on the morning of 20 November 2011 is of significance.  In the applicant’s trial the three prosecution witnesses all denied having been armed at all during the melee, in particular with a knife.  District Court Judge Woodcock noted in her Reasons for Verdict that a nurse who had treated Gurung at hospital on the morning of 20 November 2011 expressed the opinion that the injury to his arm “looks suspiciously like a knife wound”.[9]

18.Although we have not been provided with a transcript of the evidence of Gurung, it is to be noted that he testified at his trial and the judge noted in her Reasons for Verdict that he said that he had been “stabbed by PW1”.  The judge went on to note that testimony “explains possibly how the defendant suffered such a serious cut to his arm.  Somebody had a knife and that is how the defendant sustained such an injury.  That I will accept.” [10]

19.As District Court Judge Woodcock noted in her Reasons for Verdict it was the testimony of Limbu Bob that he had been pursued from the scene.  He said that Gurung had chased him to Nathan Road.[11]  However, as the judge noted, the evidence was that Gurung’s blood had been found in Reclamation Street, “the opposite direction to where PW1 fled”, at which place “a defence witness went to his aid” [12]. The judge determined that it was more likely that Gurung himself had fled, rather than that he had pursued anyone.

20.In contrast to his testimony in the trial of the applicant, in the trial of Gurung Rai Asish testified that when a police officer came to the scene, in the face of an invitation to the police officer by those involved on the other side in the fight that he be arrested, he had left the scene with Thapa Manish.[13]  He did not tell the police officer that he had been assaulted.  In her Reasons for Verdict, District Court Judge Woodcock said: [14] “As victims they should have been pleased to see this police officer and salvation.  Their actions make me doubt their version of events.”

21.In his evidence in the trial of Gurung, Thapa Manish testified that at the initial stage when they were with Gurung alone, “he started talking on the telephone” and thereafter other men began to arrive. [15]  Although he did not specifically mention the use of a telephone by Gurung, Rai Asish testified that Gurung had said : [16] “My friends and brothers are coming”.  As District Court Judge Woodcock noted in her Reasons for Verdict : [17] “Not one prosecution witness said in their police statements, unlike their oral evidence, that the defendant had telephoned for backup”.  Further, it is to be noted that none of the three prosecution witnesses mentioned that fact in their oral testimony in the applicant’s trial.

Conclusion

22.Given the fact that the three prosecution witnesses testified about the very same events in each of the two trials, the numerous discrepancies in their evidence in those trials, together with the discrepancies with that evidence and their witness statements, was highly relevant to a consideration of the safety of the applicant’s convictions.  The evidence, not available at the trial of the applicant, that Gurung had injuries that were entirely consistent with his claim that he had been stabbed or slashed with a knife by Limbu Bob, was a matter of particular significance and no doubt would have been the subject of much cross-examination at the trial of the applicant had it been available.  Having regard to that evidence and the panoply of inconsistencies in the evidence of the three prosecution witnesses we were satisfied that the applicant’s convictions were unsafe.  In those circumstances, it was unnecessary to consider the other grounds of appeal against conviction.  Accordingly, we allowed the appeal and quashed the applicant’s convictions in respect of Charges 1 and 2.

Retrial

23.Counsel for the respondent invited the Court to order a re-trial of the applicant. He contended that the three prosecution witnesses remained sufficiently credible to be relied upon by the prosecution in such a retrial.  He submitted that the offences were serious and that it was in the public interest to order a retrial.  However, he acknowledged that, given that he had been detained in custody prior to trial, the applicant’s earliest date of release lay only seven months away, namely on 11 March 2015.

24.In opposing the application for a retrial, Mr McGowan reminded the Court that in sentencing the applicant the judge had done so on the basis that the three prosecution witnesses were unarmed.  He submitted that was obviously not the case, having regard to the injuries to Gurung, and that even if the applicant was convicted on a re-trial that aggravating factor in sentence would fall away.

Conclusion

25.In all the circumstances we were satisfied that it was not in the public interest to order a retrial.

Delay

26.It is a matter of concern to the Court that, although the applicant filed his application for leave to appeal against conviction out of time on 8 April 2013, the hearing of his application did not take place until 15 August 2014.  The applicant’s application for legal aid was granted in July 2013, but the assignment of Mr McGowan and his solicitors, as the second counsel and solicitors, was not made until 16 October 2013.  Perfected Grounds of Appeal settled by Mr McGowan were filed with the Court on 15 November 2013.  The earlier hearing date of 9 April 2014 was vacated when Mr McGowan failed to comply with a direction of the Court to file written submissions with the Court on or before 18 March 2014.  That date itself had been extended at Mr McGowan’s request from the original direction that the applicant’s submissions be filed on or before 11 March 2014.  In the event, the written submission, together with the extensive transcript of those trials, was not filed with the Court and made available to the respondent until 27 March 2014.

Mr. Raymond Cheng, SPP, of the Department of Justice, for the respondent

Mr James McGowan, instructed by Charles Yeung Clement Lam Liu & Yip, assigned by Director of Legal Aid, for the applicant

[1] (PW1) Limbu Bob, (PW2) Thapa Manish and (PW3) Rai Asish.

[2] HKSAR v Gurung Chij Kaji (DCCC 1071/2012; District Court Judge Woodcock, 15 March 2013).

[3] Appeal Bundle, page 239 F-H.

[4] Appeal Bundle; page 21, paragraph 42.

[5] Appeal Bundle; page 22, paragraph 44.

[6] Appeal Bundle; page 24, paragraphs 56-60.

[7] Reasons for Verdict; DCCC 1071/2012, paragraph 26.

[8] Reasons for Verdict; DCCC 1071/2012, paragraph 31.

[9] Reasons for Verdict; DCCC 1071/2012, paragraph 10.

[10] Reasons for Verdict; DCCC 1071/2012, paragraph 23.

[11] Transcript; DCCC 1071/2012, page 20 A-C.

[12] Reasons for Verdict; DCCC 1071/2012, paragraph 29.

[13] Transcript, DCCC 1071/2012, pages 45 L - 46 D.

[14] Reasons for Verdict; DCCC 1071/2012, paragraph 30.

[15] Transcript, DCCC 1071/2012, page 28 F-H.

[16] Transcript, DCCC 1071/2012, page 44 G.

[17] Reasons for Verdict; DCCC 1071/2012, paragraph 25.