HKSAR v. Ma Tik Lun Dicky

[English Translation – 英譯本]
CACC 112/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 112 OF 2013

(ON APPEAL FROM DCCC 896/2012)

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Coram: Hon Yeung VP, Barnes and Poon JJ in Court

Date of Hearing: 10 April 2014

Date of Judgment: 10 April 2014

Date of Handing Down of Reasons for Judgment: 9 May 2014

REASONS FOR JUDGMENT

Hon Poon J (giving the reasons for judgment of the Court):

Introduction

1.The applicant[1] and the 2^nd defendant at trial were charged that on 2 March 2012, outside Ashley Centre, 23-25 Ashley Road, Tsim Sha Tsui, and acting together with others unknown, they unlawfully and maliciously caused grievous bodily harm to Luk Hung Kai (“Luk”) with intent to do bodily harm to him, contrary to s 17(a) of the Offences against the Person Ordinance.  The applicant pleaded not guilty and was convicted after trial before District Judge Johnny Chan, who sentenced him to 6 years’ imprisonment^[2].  The applicant applied to this Court for leave to appeal both conviction and sentence.

2.At the conclusion of the hearing on 10 April 2014, we dismissed the application for leave to appeal conviction and sentence, for reasons which we now give.

Prosecution case

3.At 1 am on 2 March 2012, Luk^[3] and one Mr Chan Kong Shing (PW1) were in a bar at Ashley Centre for entertainment, during which Luk introduced the applicant to PW1 and the three of them had drinks together.  After a while, the applicant went to the rear staircase with Luk, who returned to his seat half an hour later.  PW1 noticed that Luk appeared to be a bit unhappy.  At around 4 am, the applicant came back with several men and said to Luk, “Since you like talking so much, go down to talk!”  Then Luk was taken away under duress.  PW1 followed them, and while waiting for the lift on the 7^th floor, he heard someone from the applicant’s group saying with foul language, “Sun Yee On is [xxx] almighty in Tsim Sha Tsui!”.

4.When the lift arrived at the ground floor, Luk was dragged away and tugged all the way to somewhere outside Ashley Centre where he was assaulted by the applicant’s group (but not the applicant himself) with fists and kicks.  Two of them even hit Luk on the head with glass bottles.  During the assault which lasted some 5 minutes, Luk, lying on the ground, was too weak to put up any resistance, and various parts of his body including his head were subject to attack.  Towards the end of the incident, the applicant asked the assailants to leave first, saying, “Someone has made a report to the police.  Off you go!  Let me deal with it here.  I have never hit him.”  The assailants and the applicant left the scene before the ambulance arrived.

5.Mr Leung Fuk Hoi (PW2) was a cook who, at the material time, happened to be smoking outside the ground floor of Ashley Centre.  He saw 5 or 6 men, who were 20 feet away from him, dragging out a man from Ashley Centre, and 3 or 4 of them assaulted the man with fists and kicks, while the other two hit the man being dragged with glass bottles.  The assaulted man was injured in the head and bleeding.

6.Miss Cheung Wan Yin (PW3) was in the bar on the 7^th floor at the material time.  At about 2 am, she heard some people, including the applicant, quarrelling inside the bar, but she had no idea what the quarrel was about or what led to the quarrel.

7.The prosecution also adduced as evidence a CCTV footage which showed what happened when Luk was being dragged into the lift.  It appeared that Luk was not willing to be taken into the lift and the applicant and the other men subdued him with violence.  After the lift arrived on the ground floor, the applicant exited first and the people next to him dragged Luk out and tugged him along the ground.  The group left the lobby, with PW1 following them.

8.Under cross-examination, PW1 admitted that he had consumed about less than 10 bottles of beer that night, and the defence put it to him that at that time he must be under the influence of alcohol.  The defence also submitted that the evidence of PW2 and PW3 and that of PW1 were discrepant in the following ways:

(1) PW3 said that she did not hear words to the effect that “Since you like talking so much, go down to talk!”.

(2) PW3 said that 5 or 6 men put their hands on the shoulder of “A” (i.e. Luk) indicating that he should go with them, in the course of which there was no dispute.

(3) PW2 saw someone hitting Luk on the head twice with glass bottle, and on one of the two occasions the glass even broke as a result.  On the other hand, PW1 said he “[did] not think that [the glass bottle] landed on” Luk’s head.

(4) PW2 said that at the scene no one said “a report has been made to the police” or talked in a loud voice.

9.The defence submitted that these discrepancies in the evidence had undermined the reliability of PW1’s evidence.

10.The prosecution and defence did not dispute the injuries sustained by Luk.

11.When Luk arrived at the Accident and Emergency Department of the hospital, his general condition was poor and he was dazed and muddled. Two lacerations were found on his head, his right eyelid was swollen with bruises, and there was a lacuna on his right upper jaw.  He had to be intubated when he was in the Accident and Emergency Department.  Upon examination, the Department of Neurosurgery found swellings and bruises around Luk’s right orbit.  Brain and cervical spine CT scanning showed mild subarachnoid hemorrhage in his right ambient cistern and mild hemorrhage in his right medial temporal lobe.  There were also fractures in his right pars triangularis and right lower jaw.

12.Luk received conservative treatment from the hospital for his brain trauma.  His coma scale reading gradually improved, and later on the tubes could be removed from him.  He was examined respectively by the Ear, Nose and Throat Department, Ophthalmology Department and Dental Department and was required to visit various specialists for follow-up treatment.

13.On 9 March 2012, a brain scan on Luk showed resolution of intracranial hematoma.  Luk was still dazed and muddled, but his coma scale reading gradually improved.

14.On 16 March and 7 May, Luk was respectively referred to the Kowloon Hospital for rehabilitative treatment and the Department of Neurosurgery of the Queen Elizabeth Hospital for follow-up treatment.

15.On 28 March 2012, Luk, under general anaesthesia, had an open reduction and internal fixation performed on him in respect of his fractured inferior maxilla.  The results were satisfactory.

16.On 14 April 2012, an oral and maxillofacial surgeon and an ophthalmic surgeon jointly performed an operation on Luk, involving open reduction and internal fixation in respect of his fractured zygomatic complex maxillary and orbital cavity.  The operation was completed on 18 April, and the results were satisfactory.

17.Based on such undisputed medical evidence, the trial judge found that the assault on Luk had caused grievous bodily harm to him.

Defence case

18.The applicant elected to give evidence.  He said that he, a part-time party organizer, had been acquainted with Luk for about one year, during which they had seen each other twenty-odd times, and that they were ordinary friends.  He had only met PW1 once or twice and there were no grudges between them.  At midnight to 1 am on the day in question, he saw Luk and PW1 at the bar on the 7^th floor of Ashley Centre having drinks together and chatting.  The applicant only took a sip of beer as he had to work, but Luk had consumed a lot.  The atmosphere at that time was relaxed. At some point, the applicant and Luk went to the rear staircase where they smoked.  Later on, he left and went to another bar at Hillwood Road to work, and returned at 4 am.

19.While waiting in the lift lobby on the 7^th floor, the applicant saw a group of people standing around Luk who appeared to be under the influence of alcohol.  When entering the lift, he pulled Luk back once and he himself lost balance and bumped against a woman behind him.  He did not know the group who were standing around Luk, and he denied having instructed anyone to drag Luk away or assault him.  Upon leaving Ashley Centre, the applicant joined two friends in Ashley Road.  When he returned to Ashley Centre, he saw Luk lying on the ground.  He asked PW1 if it was necessary to send Luk to the hospital.  PW1 said that he would do so, and the applicant then boarded a taxi with his friends and left the scene.

Main issue

20.The main issue in the present case is whether, as alleged by the prosecution, the applicant had acted in joint enterprise with the other assailants to assault Luk, causing grievous bodily harm to him.

Conviction

21.Having considered and analysed the evidence, the trial judge found that the three prosecution witnesses were veracious and reliable, although PW3’s evidence was of limited assistance to both the prosecution and the defence.

22.In respect of the two issues of whether the applicant had participated in assaulting Luk and the role played by him at the material time, PW1’s evidence was particularly important.  Regarding the criticisms levelled by the defence against PW1’s evidence, the trial judge took the view that:

(1) The CCTV footage showed that PW1 was not under the influence of alcohol.

(2) PW1 gave evidence in a straightforward and impartial manner without deliberately making up allegations against the applicant.

(3) PW3’s evidence did not undermine PW1’s reliability because the matters on which the two witnesses focused were different.

(4) As to the slight inconsistencies between the evidence of PW2 and that of PW1, this was also reasonable because each of the two witnesses told the court what he saw and heard from his own location at the material time, drawing on his own recollection of what had happened.  Most importantly, the CCTV footage lent support to the case of PW1 to a certain extent.

23.On the other hand, the trial judge rejected the applicant’s evidence.

24.The trial judge pointed out that the footage showed that inside the lift the applicant waved his hand three times, looking like he was giving orders to the people outside.  The applicant’s act of rushing towards the lift door together with the 2^nd defendant at trial was inconsistent with the applicant’s allegation that he did not know the assailants.  The trial judge was of the view that, were it true that the applicant pulled Luk into the lift for the sake of his safety (as the applicant alleged), he would not have, as shown in the footage, left the lift on his own upon arrival at the ground floor without even looking back.  In fact, Luk had been shoved continuously inside the lift.  When the applicant found that Luk was lying on the ground, he said the words “Do you need to go first?  I will take him to the hospital.”  Coupled with the fact that the applicant left the scene before the ambulance arrived, the trial judge drew the inference that the applicant had knowledge of the assault, as opposed to his allegation in the court that he did not know that Luk had been assaulted.

25.The trial judge accepted the prosecution evidence and found that the prosecution had proved its case beyond reasonable doubt.

Sentence

26.The trial judge took the view that given the serious harm done to Luk, it was indeed fortunate that he did not die or become permanently disabled.  The circumstances of the present case fell within the most serious category because the several assailants joined forces not only to drag Luk away from the bar but also to assault him, who was unarmed, by beating and kicking him and hitting him on the head with glass bottles.  They could be described as acting in blatant disregard of the law.  The trial judge also considered that the incident obviously smacked of triad elements.  He adopted 6 years’ imprisonment as the starting point for sentencing.  Having been convicted after trial, the applicant was not entitled to any discount to his sentence.

27.At the time of sentencing, the applicant was 24 years of age and had received education up to Form 5.  In 2008, following a conviction for theft, he was sentenced to 160 hours’ community service.  In mitigation, he said that after the offence he tried hard to turn over a new leaf by actively pursuing further studies and doing charitable work such as donating blood and serving as a voluntary worker.  The trial judge did not consider them strong mitigating factors.

Application for leave to appeal conviction

28.The applicant has put forward three grounds of appeal in support of his contention that the conviction is neither safe nor satisfactory^[4].

29.First, it is argued that the trial judge erred in allowing PW1 to read his witness statement for the purpose of refreshing his memory as the prosecution had failed to establish a sufficient legal basis for PW1 to be allowed to read the statement.  Such error, it is submitted, constituted a material irregularity in the trial.

30.The Court of Appeal has repeatedly pointed out that the purpose of giving evidence at trial is not to test the memory of a witness.  The focus of the court is on the reliability of a witness and the truth of the matter.  If, in the course of giving evidence in the court, a witness has to read his witness statement to refresh his memory, the court may allow him to do so provided that, upon being shown the statement, the witness is able to state that he still had a clear recollection of the relevant facts when he made the statement: see R v Lai Chi-ping [1982] HKC 592 at 595A-B.

31.At trial, PW1 gave the following evidence in respect of his witness statement:

“ Q: Do you remember that you made – gave a statement to the police after the incident?

A: (I) do.

Q: (You) do. Do you wish to read the statement?

A: That will be good.

MR LUK: Your Honour, I will object to that because he, just now his reason was that he could not remember.

COURT: Now he is – the question you are clarifying is whether he does not remember now or he did not remember at that time or he did not remember at any time?

MR LUK: Yes, yes.

MR WONG: Yes.

COURT: Did (he) remember when the statement was given?

MR WONG: Yes, yes.

COURT: The basis …

MR LUK: Perhaps the prosecutor do a bit more to establish the basis first, yes.

MR WONG: Yes, sorry, sorry.

Q: Is it the case that (you) remembered at that time and now you do not remember, or that at no stage did you remember?

A: Now (I) do not remember the previous – now (I) do not quite remember.

Q: Right. But you – how about previously?

A: In fact, previously – my god, (I) have forgotten, (I) have forgotten.

MR WONG: I would like to show him (his) previous police statement – that is, so that he can refresh his memory.

COURT: Well, let’s first see if he himself thinks that reading the statement will assist him.

MR WONG: Yes

Q: If you read the statement, will it assist you in refreshing your memory of the incident?

A: (I) have to read it before (I) can tell.

Q: Will that assist (you) or not?

A: Yes.

MR WONG: Your Honour, I would like to show him the statement.

COURT: Mr Luk?

MR LUK: Yes, Your Honour. What I heard from this witness just now is that he could not remember whether at that time he in fact – that means heard …

COURT: Well, so reading the statement can assist him – see if he remembered at that time.

MR LUK: Yes, yes, yes, alright, alright. I withdraw this, Your Honour.

Q: We give – in fact you have two statements, so I – ok, I now show you one statement. See if you can recognize whose statement it is?

COURT: What are you asking him?

MR WONG: In fact, (I) wish to see – in fact, (I) wish to see if he can recognize that the statement and the signature are …

COURT: [The question is] whether (he) can remember the statement. What do (you) mean by whether (he) can recognize the statement?

MR WONG: That means whether this statement is his own statement, and he – then I will ask him whether the signatures below are his own signatures.

Q: Mr Chan, yes, can you recognize whose statement this is?

A: Well, my own statement.

…

Q: I would like you to read the statement, that is paragraph 10. Tell me when you have finished.

A: Alright, I remember now.

Q: Have you finished reading it?

A: (I) have read (it).

Q: Yes. Can you say again – perhaps (you) close, close the statement first.

COURT: After you have finished reading this statement, does it assist your memory?

A: Yes.”

32.Mr Lee, Counsel for the applicant on appeal against conviction, submits that when PW1 gave the police statement he had already forgotten whether he remembered “who said someone had made a report to the police”, and therefore the judge should not have allowed him to read his witness statement.  Mr Lee seems to mean that PW1’s memory of the incident had become blurred by the time he gave his witness statement.

33.In our judgment, Mr Lee’s submission is, with respect, taking PW1’s evidence out of context.  Viewing at his evidence as a whole, what he meant is obviously that when he gave his witness statement to the police he still remembered the course of the incident, but when he gave evidence in court he had to read the statement to refresh his memory.  We see nothing wrong for the trial judge to allow him to do so.

34.The second ground of appeal is that the trial judge erred in allowing the prosecution to ask, or failing to stop them from asking, leading questions during the re-examinations of PW1 and PW3.  Having read the relevant questions and answers, we are unable to agree with Mr Lee’s submission.

35.The third ground of appeal is that there was insufficient evidence to prove that the applicant and the unknown assailants had a common intention to do Luk grievous bodily harm.  Mr Lee submits that, taken at its highest, the prosecution evidence only served to prove the applicant’s presence at the scene.  Furthermore, the prosecution had adduced no evidence to prove that the applicant knew and was aware that other assailants would assault Luk with fists and kicks and glass bottles. Other assailants might, without the applicant’s knowledge and on their own initiatives, have done something on Luk which went beyond the original joint enterprise or agreement to commit the offence.

36.With respect, Mr Lee’s submission has in our judgment wholly disregarded the evidence of PW1 and PW2 and the CCTV footage.  As the trial judge held, far from being an onlooker, the applicant acted as the leader throughout the assault incident.  Luk was attacked by the applicant’s underlings for as long as 5 to 6 minutes, and the assault continued even after Luk lost consciousness.  The applicant was present all along and in the end ordered the assailants to leave.

37.As none of the grounds of appeal have been made out, we have refused to grant leave to the applicant to appeal his conviction.

Application for leave to appeal sentence

38.The applicant has advanced two grounds of appeal.

39.The first ground of appeal is that although the injuries sustained by the victim were serious, the sentence imposed on the applicant is, compared to other cases of wounding with intent, manifestly excessive.  In our judgment, it cannot be a correct sentencing approach to compare sentences imposed in different cases: each case involves its own set of facts and little purpose will be served by comparing sentences imposed on the basis of different facts.

40.In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are^[5]:

(1) the extent to which the assault was premeditated;

(2) the motivation underlying the assault;

(3) the mental or emotional state of the assailant;

(4) whether the assailant was acting under the influence of alcohol or drugs;

(5) whether the assault was committed by the assailant alone or as part of a group;

(6) the type of weapons employed;

(7) the level of force used;

(8) the injuries caused to the victim;

(9) the effect of the assault upon the victim (and those close to him or her).

The Court of Appeal also pointed out that in respect of certain acts of violence, such as those involving triad gang attacks, the court must issue strong denunciation and impose sentences with a greater deterrent effect.^[6]

41.Furthermore, the aggravating factors for this type of wounding case are: (1) the defendant was the principal offender; (2) the assault was committed in company; (3) the assault was unprovoked; (4) the assault took place in a public place; (5) the assault went on after the victim had fallen down; (6) the assault went on after the victim became unable to defend himself; (7) the victim suffered serious and lasting injuries; (8) at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse.  See paragraph 13 of the Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013 (unreported), 27 March 2014.

42.As the trial judge pointed out when passing sentence, the sentence for the offence of “wounding with intent” is determined mainly by reference to the facts of the particular case.  The present case is serious in that the attacks launched by the applicant’s group had caused very serious injuries to Luk.  All the medical reports point to only one conclusion: Luk sustained very serious injuries.  As a result of the attack, Luk suffered from cognitive impairment as well as other injuries and was hospitalized for 40 days to undergo various operations and treatments.  When he was discharged, the doctor expected that it would take one to two years for him to recover.  He could not be sure if Luk suffered from permanent trauma.

43.On 4 April 2014, the applicant submitted a letter from the Department of Justice dated 3 March 2013, which confirmed that on 30 July 2012 Luk was arrested by the Australian police for the offences of conspiracy to import dangerous drugs and possession of dangerous drug of a commercial quantity with intent.  The applicant submits that Luk in fact did not become permanently disabled as a result of the attack, otherwise he could not have committed the offences abroad.  In our view, this is no more than an unfounded speculation.

44.The applicant also relies on the medical report dated 11 March 2013, but that report serves little purpose because it merely consolidates the previous medical reports without providing an update of Luk’s condition.

45.The trial judge also pointed out that another serious feature of the present case, namely the modus operandi of the assailants.  The applicant, along with the assailants, forcibly took Luk away from the bar in the public gaze and dragged him out to the street where they jointly attacked him, who was unarmed, with fists and kicks and glass bottles. On PW2’s evidence, Luk did move his body when he was dragged out from the building, and subsequently he no longer had any body movement, but the assailants continued the assault by attacking him on the head with glass bottles and stepping on his head with their feet.  As the trial judge described, the assailants were cold-blooded and turned a blind eye to the law.

46.Moreover, it is clear from all the evidence that the applicant was not only a member of the group of assailants but was their “leader”.  Both PW1’s evidence and the CCTV footage show that the applicant was the person who gave orders.  Therefore, although he himself did not attack Luk, he was obviously more culpable than the other assailants.

47.The second ground of appeal is that in the present case there is no clear evidence that the attack had anything to do with a triad society.

48.In our judgment, this ground cannot be made out because someone from the applicant’s group had shouted, “Sun Yee On is [xxx] almighty in Tsim Sha Tsui!”.  Also, the modus operandi of the applicant and his accomplices did smack of triad elements.  Therefore, the trial judge did not err when he said in passing sentence that the present case obviously smacked of triad elements.

49.For the above reasons, we have also dismissed the applicant’s application for leave to appeal his sentence.

Mr Derek Lai, Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the respondent

Mr Dick Lee, instructed by Shea & Co, Damien, for the applicant (re appeal against conviction)

Mr S.K. Khattak (Kelly Lam), instructed by Shea & Co, Damien and assigned by the Legal Aid Department, for the applicant (re appeal against sentence)

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor

[1] The 1^st defendant at trial.

[2] The 2^nd defendant at trial pleaded guilty and was sentenced to 4 years’ imprisonment.  Furthermore, he alone was charged with one count of “acting as a member of a triad society”, which, with leave of the trial judge, was kept in the court file.

[3] Before trial, Luk was arrested and detained by the police in Australia for an offence of trafficking in a dangerous drug.  Therefore, he was not called as a prosecution witness.

[4] That is the fourth ground of appeal.

[5] At 236 F-H.

[6] See 236I – 237B