Case Detail

CACC000554A/1988

IN THE COURT OF APPEAL	1988, No. 554
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	TSUI CHING KWAI

________

Coram: Hon. Yang, C.J., Silke, V.-P. & Penlington, J.A.

Date of Hearing: 28 June 1989

Date of Judgment: 28 June 1989

______________

J U D G M E N T

______________

Costs Application

Silke, V.P. :

1. Tsui Ching Kwai had on 11th May 1989 his appeal against his conviction allowed. He had been convicted, on 24th October 1988, on a charge of wounding with intent contrary to section 17 of the Offences Against the Person Ordinance, Cap.212. At that time no application was made for any award of costs as provided for under the provisions of section 83XX of the Criminal Procedure Ordinance, Cap.221.

2. We have however been told that, immediately upon the successful determination of the appeal, from the Applicant's point of view, instructions were given and the Registrar was informed of the intention to apply but no specific application was made direct to the Court.

3. The costs for which Mr. Macrae seeks orders relate first to the preliminary proceedings in the Magistrates Court; then to an application for bail pending trial; then to the trial in the District Court; then to an application for bail pending appeal and, finally, to the costs of the appeal itself which we take it is intended to include today's argument.

4. The application is opposed first of all on lack of jurisdiction and secondly on its merits.

5. On jurisdiction: it is suggested that this Court is now functus officio and does not have jurisdiction to entertain an application made to it subsequent to the determination of the appeal. In a judgment delivered yesterday The Queen v. Kwok Moon Yan and The Queen v. Lok Man Chiu, Consolidated Applications 347/1988 and 500/1988 (unreported) this Court said:

"If there is to be an application for costs then that application should be made upon the judgment of the Court of Appeal being pronounced and in respect of all proceedings for which the order is sought. For the future counsel would be well advised to arm themselves with at least tentative instructions and, if the decision of the Court should come as a surprise to them, they should, if they consider an application for costs to he valid, ask for a short moment to take instruction. The Court will be loath to entertain applications made subsequent to the determination of an appeal.

6. That passage was inserted in that judgment for practical reasons first that when an application is made to the sitting Court that Court has the matter live before it; second counsel involved in the anneal are also before the Court and are aware of the background and the circumstances of the offence and the offender. If applications are made subsequent then the matter tends to become more abstract and stale: and this is, it is worth repeating, an exercise of an unfettered discretion by this Court. Further the necessity to convene a Court of the same composition can well cause difficulties.

7. Mr. Bailey has taken the point that first of all in Luk Hoi Ka and another v. The Queen [1967] HKLR 163, which was concerned with the late application for order of restitution of the proceeds of a robbery, Huggins, J. (as he then was), delivering the judgment of the Full Court, made reference to the then section 83(5) of the Criminal Procedure Ordinance and went on, at page 167, to construe the wording of that section which contained the words in every appeal". He said that the ordinary connotation of those word's is "during the period from the filing of the appeal until final disposal of the appeal". The judgment continued:

"We should depart from that ordinary connotation only if it be clear that the legislature intended to use the words in a different sense. Incidental matters such as costs may be dealt with after the substantive question has been disposed of but we are satisfied that if costs were not asked for before the Court rose counsel could not successfully come back to ask for costs on a subsequent day".

8. Mr. Bailey has also referred us to R. v. Agritraders [1983] 1 All ER 1006, also reported in [1983] 1 QB 464. In the All England Report at page 1011, Watkins, L.J., in delivering the judgment of the Court, concluded his judgment with these words:

"Finally we think it right to say that regardless of whether we have the jurisdiction, which we are inclined to doubt, to entertain a fresh application for costs, which has arisen as a result of an afterthought, we should, in the circumstances of the present case, refuse it out of hand."

9. With respect to Mr. Bailey, Watkins, L.J. was there talking of a fresh application subsequent to a successful application for costs the point at issue was that, the original order having been more the civil proceeding order "costs here and below", what that was intended to mean. There was, as Watkins, L.J. described it, "an ingenious application" to remedy a matter which counsel had neglected to mention at the hearing of the original application for costs.

10. We are more concerned with Lok Hoi Kai. But that was in 1967 prior to the English Court of Appeal Acts and prior to the 1973 and 1981 Practice Directions given in England in relation to the award of costs. It is also, of course, long before the enacting of section 83XX, which is the fount of our jurisdiction and which came into existence in 1978.

11. Section 83XX reads in part:

"(2) Where an appeal to which this section applies is allowed, the Court of Appeal may, subject to subsection (3), order the payment out of the public revenue of the costs of the appellant.

12. Mr. Macrae submits, in the light of that subsection, that we have jurisdiction but that the requirement referred to in Kwok Moon Yan, as to making the application at the time the judgment is pronounced, is too restrictive. Counsel may not be aware of the full content of a decision and of its implication at the time that it is given. We accept that this might be so but it would be advisable at the very least to indicate to the Court that an application will be made or, as was stated in Kwok Moon Yan, to ask or short time to take instructions.

13. We conceive us to have jurisdiction to entertain an application made subsequent to the determination of an appeal though as we say the better practice, and the much more preferable, is to make it at the time. If not, unless there be good reason, costs of the late application may not be awarded.

14. As to the merits it is suggested that this Applicant brought suspicion upon himself or misled the police mainly as regards his running away at the time the incident occurred. With respect, that is not a matter which we think comes within that rubric.

15. We are prepared to make orders that there be an award of costs, which will be such sums as are reasonably sufficient to compensate the Appellant for any expenses properly incurred by him in this Appeal; in the application for bail pending appeal; in the trial in the District Court; in the application for bail pending trial; and in the preliminary proceedings in the Magistrates Court. Such costs to be ascertained by the Registrar, who will no doubt, should he have recourse Order 62 of the Rules of the Supreme Court, apply that order within the ambit of subsection (4) of section 83XX: a sum that is reasonably sufficient to compensate the Appellant for any expenses properly incurred. We would add that the costs of the appeal are to include the costs of the argument today. We so order.

Representation:

A. Macrae, Esq. (David Ravenscroft & Co.) for Applicant

S. Bailey, Esq., S.C.C., for Crown/Respondent

CACC000554/1988

IN THE COURT OF APPEAL	1988, No. 554
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	TSUI CHING KWAI

_____

Coram: Yang, C.J., Silks, V.-P.& Penlington, J.A.

Dates of Hearing: 5 and 11 May 1989

Date of Judgment: 11 May 1989

_______________

J U D G M E N T

_______________

Silke, V.P.:

1. The Applicant, Tsui Ching Kwai, was convicted after trial before Her Honour Judge Chua of the offence of wounding with intent contrary to section 17 of the Offences Against the Person Ordinance. He now seeks leave to appeal against that conviction.

2. At about 12:15 a.m. on 8th August 1988 the victim Lo was set upon by five men in a video games centre in Wang Kwong House, Ngau Tau Kok and was wounded. He was wearing a black T-shirt. Those wounds clearly, and this was not contested at trial, fell within the ambit of the section 17 offence.

3. Present at that time in that games centre was Detective Police Constable 22468 who, being unable to sleep, went there to occupy some of his time.

4. The victim was unable to identify and of his attackers. It was his evidence that he was somewhere between machines Nos. 23 and 25, which are on the right hand side of the games centre as one looks at the sketch, exhibit P4, when he was pushed And chopped. He ran to the top of the games centre near a place where the accounts office was situated. He had his back to it, attempted to protect himself by his arms but was again chopped - this time on the knees. He broke away and ran to the exit marked "X" which was at the bottom of the sketch and is close to a video machine No. 30. For a person leaving the premises No. 30 would be on his left and on his right were two other video machines, Nos. 38 and 37.

5. Lo turned right after leaving the centre and a there was a person slightly ahead of him and to his left. He said a number of people also ran out of the "X" door at about the same time. When he got out he saw some of his assailants running ahead of him and be surmised that they had left by the top door to the premises, marked "Y" on the sketch.

6. When the constable saw the chopping, he drew his gun and he said he had playing the video game "Ninja'' at machine No. 37. There was playing at machine No.30 the third prosecution witness, the "innocent bystander".

7. The constable saw the portion of the attack, his attention having been attracted by the commotion taking place, at the accounts office. There was evidence that the centre was very dark. When he drew his gun he shouted "Police, don't move." He saw a man in a black T-shirt run to the "X" door exit, pursued by his assailants. He then fired two shots. One of those shots hit the Applicant and the other hit the innocent bystander.

8. The evidence of the constable was to the effect that he was sure that the Applicant was one of the assailants as he had seen him chopping and had seen him run in his direction, brandishing a knife in his right hand and holding it aloft at the level of his shoulder. He lowered the knife a little as he can. This is why he fired at him.

9. The constable chased the man in black and the Applicant through the "X" exit door and leaving through that door in that progression. The Applicant was the constable said, wearing glasses and dressed in a flowered T-shirt. He followed him into a car park, which is on the right of the video game centre as one looks at the sketch, up to its first floor and during that chase, although he lost eight of the Applicant momentarily as he turned a corner, the Applicant was carrying a knife. On the first floor, the Applicant dropped the knife, squatted down and said please arrest me, I am very painful." The constable's evidence continued that he then picked up that knife, there being no person to guard it where it fell, and brought it and the Applicant back to the video games centre. He then placed the knife near the area where he had seen the assault at the accounts section for want of any better place to put it.

10. Subsequent forensic examination showed that on the Applicant's trousers there were two minute spots of blood consistent with the victim's blood.

11. It was the Applicant's case that he also was an innocent bystander. That he became alarmed by the assault which he saw perpetrated upon Lo and that he was tried to get away from the centre as fast as he could. He left through the "X" exit with a number of other persons including the victim into whom he bumped as he passed through. As he ran he heard someone shout "If you run again I will fire". He said that it was only about then that he first felt any pain. He stopped on hearing the shout and squatted down. This was not in the car park area but was in a lane, to the right of the car park area and leading up to Ngau Tau Kok Road. When he squatted down people ran past him. Someone came up and pointed something at his head and was brought, with his hands tied with a belt, back to the video centre. He denied ever having a knife and said that the first time he had actual sight of the person who brought him back, and of the knife produced in Court, was when he got back to the video centre.

12. There were as between the evidence of the constable and the evidence of the Applicant three basic and irreconcilable differences. First, as to the identity of the assailant carrying the knife running down the video the assailant carrying down the video centre towards the "X" door; secondly: the apprehension in the car park as evidenced by the constable or in the side lane as evidenced by the Applicant, and the carrying of the knife during the chase and, thirdly: the evidence of who was playing at machine no.37, the constable said it was he and the Applicant said that he himself was there. They could not clearly both had been thereat the same time. There was no evidence of either of them having seen the other.

13. In addition, there was an internal conflict in the evidence of the constable himself: that is the angle at which he fired his shots for it was his evidence that he fired up the video centre towards where he said the Applicant was, yet the second of those shots, one following immediately upon the other, struck the innocent bystander at an angle to that line of fire of approximately 90º.

14. Apart from the issue of the angle of the shots which has relevance to his identification of the Applicant as the assailant, there are three matters which have given us particular concern and each of them relates to the route by which the trial judge reached her conclusions in accepting the constable as a credible witness and consequentially, having "no reservations" the he told the truth, which brought her to her conclusion of guilt.

15. The first was the matter of the number of people leaving the exit "X." There had been differing evidence the total number of people in the video centre. This varied from about ten to about fifteen to the Applicant's version of about thirty. The constable was clear that running out of that exit was the victim, the Applicant and himself, only those people at that time and in that order. PW3, the innocent bystander, saw four or five people running out. The victim had thought a number of people ran but he was somewhat uncertain, not surprisingly considering the wound he received, of the actual number.

16. This evidence in relation to the number of people again impinges upon the credibility of the evidence given by the constable as to what he saw, how be fired and his identification.

17. The next item was the "Ninja machine". It is accepted by Mr. Bruce who appears for the Crown that the trial judge made an inaccurate assessment of the Applicnat's evidence in stating that he had said that no.37 was the only machine, playing "Ninja". That assessment played a part in her rejection of the Applicant's defence. That was not the evidence he gave. He said that he had played several machines of which the No.37 was a Ninja machine but his evidence was not to the effect that it was the sole Ninja machine in the premises.

18. The third is the matter of the blood on the applicant's trousers. The trial judge combined this with his evidence as to a number of people coming out from the "X" door and thought it to be an attempt on the Applicant's part to build up a picture of, as she put it, a "veritable stampede" from the door. A picture she though was painted in order to explain his bumping against the left and with the object of providing an explanation for any blood of the victim which might subsequently be found upon him. This, with the greatest respect to the trial judge, was to give a unwarranted gloss to the evidence of the Applicant and to put the matter far too high. It would seem highly unlikely, that a person, even if he were an assailant, would make up a story of deliberately bumping against his victim, anticipating possible arrest in the immediate future, in order to provide for any possible blood stains of that victim which might have come upon him in the course of an attack. This story was one he told the police before any forensic evidence was available to them.

19. In addition to these matters where, wit h respect, we consider the trial judge's evaluation to have been seriously flawed, is the issue of the gun that fired at the 90º angle. If PW3, the innocent bystander, was hit at the machine so close to the exit s and if both shots were fired one immediately after the other, in the light of the angle of the wound on the Applicant - and we have both seen the scars remaining and had our attention directed to the evidence at trial as to the entry and exit which showed that the bullet entered at the point of the right shoulder coming across the that shoulder and across the neck to the exit point the evidence given by the constable of his firing angle must have been totally wrong and not, as the trial judge put it, "not totally ...(illegible)''. This, as we indicated earlier does impinge upon the evidence of that which the constable said he saw of the Applicant as the assailant and on his identification of him.

20. We accept that there is a heavy burden on an applicant who seeks to upset the findings and the evaluation of a trial judge on matters of fact and that it is not an easy task to persuade this Court that a conviction, where the matter of fact is for a seeing and hearing judge, is unsafe and unsatisfactory. While we are not to be taken as finding that the constable was a liar or that was a witness of the complete truth - and we have anxiously considered the submission of Mr. Corrigan and Mr. Macrae and those of Mr. Bruce - we feel that in all the circumstances here the Applicant has discharged that burden even if the trial judge did place great weight upon the apparent stupidity of the Applicant who, on his own evidence, put himself between the victim and his rapidly approaching assailants in leaving the centre. It is not merely a matter of entertaining a lurking doubt and we feel that this conviction for the reasons given is neither safe nor satisfactory.

21. We grant leave, treat the hearing of the application as the hearing of the appeal and allow the appeal.

Representation:

A. Corrigan, Esq., Q.C. & A. Macrae, Wsq. (David Ravenscroft & Co.) for Appkicant

A.A. Bruce, Esq. for Crown/Respondent.

THE QUEEN v. TSUI CHING KWAI

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