HKSAR v. Gurung Bhamindra and Another
Read the full judgment text of CACC 236/2013 on BabelCite. This Court of Appeal judgment was delivered on 24 June 2014.
1. The 1 st and 2 nd applicants, acting in person sought leave to appeal against their conviction after trial by Deputy High Court Judge Geiser and a jury of an attempted robbery of Ng Wai Tong on 24 February 2012, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 (Count1). The 1 st applicant also sought leave to appeal against his conviction of an offence of wounding Ng Wai Tong with intent at the same time and place, contrary
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CACC 236/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 236 OF 2013 (ON APPEAL FROM HCCC NO. 362 OF 2012) ____________ BETWEEN
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________________________ REASONS FOR JUDGMENT ________________________ Hon Lunn VP (giving the Reasons for Judgment of the Court): 1.The 1st and 2nd applicants, acting in person sought leave to appeal against their conviction after trial by Deputy High Court Judge Geiser and a jury of an attempted robbery of Ng Wai Tong on 24 February 2012, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 (Count1). The 1st applicant also sought leave to appeal against his conviction of an offence of wounding Ng Wai Tong with intent at the same time and place, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 (Count 2). On arraignment, on his plea of guilty, the 2nd applicant pleaded guilty to that offence. Having been granted the assistance of the Hong Kong Bar Association’s Free Legal Service Scheme, the 2nd applicant was represented by Mr Hanif Mughal and Ms Helene Ho in his application for leave to appeal against the sentences imposed by the judge in respect of Count 1 and Count 2. At the hearing, we dismissed the applications of the 1st and 2nd applicants for leave to appeal against their conviction on Count 1 and, having allowed the application of the 1st applicant to appeal against his conviction on Count 2, dismissed the appeal. We said that we would give our reasons in due course. This, we do now. 2.On 28 June 2013, the judge sentenced the applicants to 8 years’ imprisonment on Count 1. In respect of Count 2 the 1st applicant was sentenced to 4 years and 6 months’ imprisonment, and the 2nd applicant to 3 years’ imprisonment. The judge ordered that the sentences of imprisonment imposed on each of the applicants be served concurrently, so that each of them was sentenced to a total of 8 years’ imprisonment. At the hearing, we dismissed the application of the 2nd applicant to appeal against sentence and said we would give our reasons in due course. This, we do now. THE TRIAL The prosecution case 3.Mr Ng Wai Tong testified that just before 7 am on 24 February 2012, he was on his way to open up his recycling business ‘Ming Kee’ in Hai Tan Street, Sham Shui Po. He was carrying a bag [1], which contained HK$21,000. As he crossed Hai Tan Street, Sham Shui Po the 1st applicant, one of two South Asia males who were sitting on some railings, jumped off the railings and approached him, punching him twice on the left side of his chest. Although he pushed him away he was dragged into the road, where both men attacked him. One of them used a pole [2] to beat him. He covered his head with his hands and used the bag to protect himself. As he squatted down, he was kicked. He shouted out, “Don’t hit me! Why are you hitting me?” One of the men attempted to snatch his bag from his hands, but he held onto it firmly. Then, the two men fled. 4.On 21 March 2012, Mr Ng Wai Tong identified the 1st applicant as one of his two assailants at an identification parade. However, he was unable to identify the second assailant. 5.Mr Yip, an employee of Ming Kee, said that he had encountered a bloodied Mr Ng Wai Tong in Hai Tam Street that morning. The latter complained that someone had tried to snatch his money. He reported the matter to the police by a ‘999’ telephone call. He rejected suggestions made on behalf of the applicant that Mr Ng Wai Tong did not have a bag in which his money was contained. He explained the absence of reference to that in his account of the police on the basis that he had merely forgotten to tell the police of that detail. 6.Mr Luong Cut Thong, a scavenger, was on his way to sell some items to Ming Kee when he saw two men attack Mr Ng Wai Tong and then flee. He gave chase, shouting “Robbery!” Although he lost sight of them for a few seconds, he caught up with them at Nam Cheong MTR station, where they had been apprehended by others. Mr Kwan Chi Wai, an employee of the MTR Corporation, said that as he left Exit D of the Nam Cheong MTR station that morning he saw a passer-by intercept a South Asian man. He assisted him to pin that the latter to the floor. As he did so, he noticed a wooden pole, covered in a jacket, carried by the man fall to the floor. Mr Ip Chi Kong testified that he was in the MTR station when he saw a man chasing a South Asian man shouting “Snatching!” He gave chase and saw another passerby apprehend the South Asian man and force him to the ground. He assisted in subduing him and noticed a wooden pole wrapped in a garment on the ground nearby to the South Asian man. 7.PC 2508 testified that he responded to a ‘999’ call and, having located Mr Ng Wai Tong, he went to the Nam Cheong MTR station where he arrested the 1st applicant. He testified that Mr Ng Wai Tong had shown him the bag which his assailants had tried to seize from him during the attack. There was no dispute that another police officer arrested the 2nd applicant at the Nam Cheong MTR station. 8.It was an admitted fact that a wooden fragment located by SPC 20042 at the scene of the attack on Mr Ng Wai Tong came from the wooden pole, exhibit P2. Further, that the analysis of DNA contained in the bloodstain on the wooden fragment and on a plastic glove, one of a number of pairs found in the garment in which the pole was wrapped when it fell to the ground at Nam Cheong MTR station, revealed that it matched that of the DNA identified in blood taken from Mr Ng Wai Tong.[3] 9.Dr Tsang Wai Tsang examined Mr Ng Wai Tong on 24 February 2012. He found three lacerations on his scalp, 3 cm, 5 cm and 7 cm in length, which required a total of 25 stitches. Also, there was a fracture of the medial wall of the left orbit surrounding the eye. Further, there were bruises to the left side of his face, left knee and abrasions to the left elbow. Defence Case 10.The 1st applicant testified in the defence case. He accepted that he and the 2nd applicant were walking outside 15 C Hai Tan Street at about 7 am on 24 February when they encountered Mr Ng Wai Tong. They were looking for work. Mr Ng Wai Tong came around the corner and bumped into him. At that time he had a broken right forearm. He used his left hand to push Mr Ng Wai Tong away. However, Mr Ng Wai Tong swore at him. After the 2nd applicant had enquired of him what was going on, the 2nd applicant went over to the victim and asked him “What’s up” in English. In response, Mr Ng Wai Tong shouted at the 2nd applicant. Then the 2nd applicant punched Mr Ng Wai Tong in the face. Although Mr Ng Wai Tong pushed the 2nd applicant away, the latter struck him several blows to his head with a wooden pole. The 1st applicant tried to stop the 2nd applicant from hitting Mr Ng Wai Tong, but could not do so due to the pain in his arm. Having seen that Mr Ng Wai Tong was bleeding profusely and that he had covered his head with his hands, the 1st applicant became scared and fled. He did not see Mr Ng Wai Tong carrying a bag and denied that he had ever attempted to snatch the bag. 11.The 2nd applicant did not avail himself of the right to give or call evidence at the trial. In his closing submissions, Mr Hanif Mughal, who represented the 2nd applicant at trial, invited the jury to accept the version of events described in the testimony of the 1st applicant. GROUNDS OF APPEAL AGAINST CONVICTION 1st applicant 12.In his home-made grounds of appeal attached to Form XI filed with the court on 17 July 2013, by which the 1st applicant gave notice of his application for leave to appeal against conviction, it was asserted:
2nd applicant 13.In his homemade grounds of appeal against conviction in relation to Count 1 the 2nd applicantcomplained first, that there was a material irregularity in that the judge failed to direct the jury that no adverse inferences should be drawn from his election not to testify at his trial. Secondly, the judge erred in not directing the jury that the absence of any blood on the victim’s bag would support the defence assertion that Mr Ng Wai Tong was not in possession of the bag at the time of the attack. If he had been, in the circumstances which he described, blood would have been found on that bag. Thirdly, the judge erred in directing the jury that there was no motive for Mr Ng Wai Tong to make up his evidence of the attempted robbery. A CONSIDERATION OF THE SUBMISSIONS The 1st applicant 14.The judge reminded the jury of the 1st applicant’s testimony that the fact that he and Mr Ng Wai Tong had bumped into each other as they walked along Hai Tan Road escalated into violence only after the intervention of the 2nd applicant. Of the 1st applicant’s testimony, he said:
15.Of the 1st applicant’s testimony that there was no robbery, indeed Mr Ng Wai Tong did not even have a bag in his possession, the judge said: [4]
16.At an earlier stage of the summing up, the judge reminded the jury in similar terms of the 1st applicant’s case. [5] Having reminded the jury of the 2nd applicant’s case, namely that having intervened in the altercation which arose after the 1st applicant and Mr Ng Wai Tong bumped into one another, he had struck Mr Ng Wai Tong twice on the head with a pole but had not attempted to rob him the judge identified the issues rising at trial: [6]
17.It is clear from those passages and the summing up as a whole that the judge reminded the jury of the nub of the 1st applicant’s defence. There is no merit in the grounds of appeal against conviction advanced by the 1st applicant. The 2nd applicant 18.Contrary to the submissions of the 2nd applicant, the judge did give the jury appropriate directions in respect of the fact that the 2nd applicant had not availed himself of his right to give evidence at trial. The judge directed the jury:[7]
19.Of the 2nd applicant’s complaint that the judge had not addressed the issue of the absence of evidence of bloodstains on the bag Mr Ng Wai Tong claimed to be in his possession at the time of the attempted robbery, it is to be noted that the judge said that DSPC 20042 testified: [8]
20.The fact that the police officer had found no blood on the bag, when he seized it about 12 hours after the attack, was a matter to which counsel for the 2nd applicant had averted in his closing speech.[9] Mr Ng Wai Tong’s evidence 21.In his summing up the Judge reminded the jury that in cross examination Mr Ng Wai Tong remained adamant in respect of his identification of the 1st applicant. [10] In that context, the judge reminded the jury of discrepancies in Mr Ng Wai Tong’s out-of-court witness statement and of his explanations of those discrepancies, in particular that he was in hospital and not feeling well. In that context, the judge invited the jury to note that he had been the subject of a “vicious attack” which had occurred over a year earlier. [11] 22.It was in the context of what the judge described as the criticism of counsel for both applicant’s that Mr Ng Wai Tong was a “liar”, as being relevant to the discrepancies between his testimony and his out-of-court statements, that the judge posed the rhetorical question: “..what possible motive PW1 has for lying.” [12] Needlesstosay, the judge had directed the jury earlier that the burden of proving guilt lay on the prosecution, adding that the applicants” do not have to prove their innocence."[13] 23.We are satisfied that, in all the circumstances, the judge was entitled to raise the issue of a motive to lie with the jury for their consideration. 24.In the result, we are satisfied that there is no merit in any of the grounds advanced by the 1st applicant in respect of his conviction on Count 1. Count 1: additional ground of appeal 25.The Court drew the attention of counsel for the respondent to an arguable ground of appeal that arose from the directions which the judge gave the jury in respect of Count 2, in particular as to the requisite mens rea in the offence of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. In his summing up, the judge directed the jury: [14]
26.Clearly, that direction to the jury stated in effect that recklessness was sufficient to satisfy the mens rea of the offence. It was not. The offence was one of ‘specific intent’, for which recklessness is insufficient in proof of the offence. This Court, pointed out as much in its judgment in HKSAR v Chung Chi Fai [15], an English translation of the Chinese judgment having been made available to the Court by the Department of Justice. In the joint judgment of Yeung VP and Yuen JA, it was noted:
27.Ms Wong Kam Hing conceded on behalf of the respondent that the judge’s direction was a material misdirection. However, she invited the court to apply the proviso, submitting that the evidence of intent was clear from the fact that a wooden pole, approximately 18 inches in length, had been used to deliver repeated blows to Mr Ng’s head and had caused the injuries described by the judge. Furthermore, she pointed to the fact that the pole had been broken whilst being used to deliver those blows. 28.We are satisfied that Ms Wong was correct in conceding that the judge’s direction to the jury was a material misdirection. Proviso 29.We are satisfied that the evidence was overwhelming that the shared intention of the applicants was to cause really serious bodily harm to Mr Ng and that, without doubt, a reasonable jury properly directed would have convicted the 1st applicant on Count 2.[16] 30.Accordingly, although we allowed the 2nd applicant’s application for leave to appeal against conviction in respect of Count 2, we dismissed the appeal. Sentence 31.It is to be noted that no ‘Summary of Facts’ was advanced as the factual basis on which the applicant pleaded guilty to Count 2. However, the judge said that on the basis of the evidence adduced at trial it was quite clear that the 1st applicant attacked Mr Ng Wai Tong first, punching him twice in the chest before dragging him into the road. Then, the 2nd applicant struck Mr Ng Wai Tong a number of times on the head with a pole. Although he attempted to shield his head with his hands, the assailants persisted and he was kicked also punched and kicked in the body. 32.Noting that the applicants acted in a joint enterprise to attack and to attempt to rob the victim, the judge said that for purposes of sentence he did not differentiate between them.[17] Having referred to the judgment of this Court in the Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312 the judge said that the circumstances of the commission of the offences of which the applicants had been convicted fell into the category of what was described in that judgment as ‘head-bashing’ robbery, for which it was said that the sentence should not be less than 8 years’ imprisonment. 33.The judge said that he accepted that the attack was not pre-planned. Rather, it was a spontaneous attack on the victim. He rejected the suggestion that Mr Ng Wai Tong provoked the applicants and said that it was fortunate that he did not suffer more serious and long-lasting injuries. He sentenced both applicants to 8 years’ imprisonment on Count 1. Count 2 34.Noting that the violence done to Mr Ng Wai Tong, reflected in Count 2, was “part and parcel” of the robbery the subject of Count 1, the judge sentenced the 1st applicant to 4½ years’ imprisonment for that count, ordering it to be served concurrently to the 8years’ imprisonment imposed in respect of Count 1. The judge stated that he took 4½ years’ imprisonment as a ‘Starting Point’ for the 2nd applicant for Count 2 and, affording him a discount of one-third of the starting point to reflect his plea of guilty, imposed a sentence of 3 years’ imprisonment. The 2nd applicant’s grounds of appeal against sentence 35.Mr Hanif Mughal submitted on behalf of the 2nd applicant that in imposing the same overall sentence on both the applicants, namely 8 years’ imprisonment, the judge failed to reflect the fact that the 2nd applicant had pleaded guilty to Count 2, namely wounding with intent. He submitted that the two counts were part and parcel of the same conduct and that the judge ought to have afforded the 2nd applicant a discount in the starting point for sentence in Count 1 to reflect his plea of guilty to Count 2. 36.We are satisfied that the judge approached sentence in the correct way. He did afford the 2nd applicant a one-third discount from the starting point of 4½years taken for Count 2 to reflect his plea of guilty and sentenced him to 3 years’ imprisonment. By contrast, the 1st applicant who was convicted after trial of that count was sentenced to 4½ years’ imprisonment. The judge was correct to determine that a starting point of 8 years’ imprisonment was appropriate, given the circumstances of the commission of the offence in Count 1. The 2nd applicant was convicted after trial of that offence. There was no basis on which it would have been appropriate for the judge to have taken a lower starting point for sentence of the 2nd applicant than that taken for the 1st applicant on the same offence. There was no merit in the submissions to the contrary. Conclusion 37.Accordingly the application of the 2nd applicant for leave to against sentence was dismissed.
Ms Fanny Wong Kam Hing, Senior Assistant Director of Public Prosecutions of Department of Justice, for the Respondent Mr Hanif M Mughal and Ms Helene S W Ho, assigned by Bar Free Legal Service Scheme, for the 2nd applicant (for sentence) 1st applicant appeared in person 2nd applicant appeared in person for conviction [1] Exhibit P 8. [2] Exhibit P 2. [3] Admitted Facts, page 7. [4] Appeal Bundle, page 30 O-R. [5] Appeal Bundle, page 9 B-L. [6] Appeal Bundle, page 9 P-S. [7] Appeal Bundle, page 15 B-E. [8] Appeal Bundle, page 28 N-P. [9] Appeal Bundle, page 83 E-J. [10] Appeal Bundle, page 22 C-F. [11] Appeal Bundle, pages 22 J - 23 A. [12] Appeal Bundle, page 23 M-O. [13] Appeal Bundle, page 15 J-L. [14] Appeal Bundle, page 19 B-T. [15] HKSAR v Chung Chi Fai (CACC 497/2012; unreported, 13 February 2014). [16] Launder v HKSAR (2001) 4 HKCFAR 457 at 471 E-F, paragraph 61. [17] Appeal Bundle, page 37 F-H. |
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