Case Detail

HKSAR v. WONG FUNG

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2886-EN-2000-04-28

HKSAR v. WONG FUNG

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CACC000306A/1999

CACC 306/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306 OF 1999

(ON APPEAL FROM DCCC 508 & 733 OF 1996)

BETWEEN
	HKSAR	Respondent

	AND

	WONG FUNG	Applicant

_____________________

Coram: Hon. Stuart-Moore VP and Woo JA

Date of Hearing: 28 April 2000

Date of Judgment: 28 April 2000

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 1 February 2000, this court, differently constituted, dismissed the Applicant's leave application in relation to conviction in the District Court before Judge Chua on two charges of wounding with intent and two charges of common assault, following a trial in 1996. That application was lodged approximately two and a half years out of time. The Applicant had voluntarily absented himself from the trial and was sentenced to a total of two and a half years' imprisonment in his absence.

2. Prior to the hearing of the application relating to conviction, on 17 December 1999, the Applicant's solicitors served notice of abandonment of an application relating to sentence. This, of course, was also an application that had been made more than two years out of time. The Applicant (D5 at trial) was legally represented when he abandoned his application relating to sentence. We are now invited to treat the abandonment of his application for leave to appeal against sentence as a nullity.

3. In his written grounds provided some time ago, the Applicant said as follows:

"I had applied for appeal against (the conviction) and sentence in June 1999. As the Legal Aid Department did not approve of assigning a lawyer for me, I entrusted my family to look for someone to engage a lawyer for me. A lawyer was engaged through a friend of my family member and the lawyer's clerk all along told (me) to be rest assured that they would handle it properly for me. It was only when I appeared in court that I came to know that the lawyer had not made any application for me to appeal against the sentence. Thus, I asked him why he had not done so. He then said that because the trial judge made many procedural mistakes and was prejudiced against me, the trial was not conducted in a fair manner. The lawyer (opined) that there was a very great chance for this case to have a trial de novo. Therefore, I thought that there would be a trial de novo. This is the reason why (I) now (appeal) out of time. It is hoped that Your Lordship will appreciate that. I now appeal against sentence in relation to the first and second charges."

4. The first and second charges were the wounding with intent charges on which D5 received concurrent sentences of two and a half years' imprisonment. Today, D5 has addressed us at some considerable length saying that the real culprit behind the events which led to his conviction was a man called "Hak Chai" who he has named all these years after the event. He began by telling us he only learnt the true name of this man a month ago, but well into his account in court today he referred to the statements of his co-defendants at trial who had apparently named Hak Chai as having been involved in the incident.

5. The Applicant recited numerous details of the case which appear to bear little relationship to the evidence given in the trial about his involvement. More importantly, the Applicant has provided no material of any relevance to these proceedings although he has demonstrated that he has no remorse for his crimes whatever, despite his expressions of so called remorse in court.

6. The Applicant did bring to our attention a newspaper report of an assault case which has been read out. We cannot regard this as having any significance to these proceedings because every case is decided on its own facts, and the facts of that case were entirely different to the facts in this one.

7. It is quite apparent to us that no good reason has been provided for us to treat the previous abandonment of the application as a nullity and we do not propose to do so. Furthermore, there is no merit in this application at all so far as the facts are concerned which led to the sentence imposed by the judge. The Applicant is a person who has a bad record and was, as the judge expressed it, the person who "directed" the attack by ten men, including himself, on PW3 who was eventually rendered unconscious. The evidence showed that the victim had been kicked and punched as he lay on the ground. At the same time as this was going on, there were three other victims also assaulted in what appears to have been a concerted effort to assault four people by the group with which the Applicant was associated.

8. The application is dismissed. It is wholly without merit as we have said already and we order that three months of the time the Applicant has spent in custody shall not count towards his sentence.

(M. Stuart-Moore)	(K.H. Woo)
Vice-President	Justice of Appeal

Representation:

Mr Robert K.Y. Lee, SGC of the Department of Justice for the Respondent.

Applicant in person.

CACC000306/1999

CACC 306/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306 OF 1999

(ON APPEAL FROM DCCC 508 & 733 OF 1996)

BETWEEN
	HKSAR	Respondent

	AND

	WONG FUNG	Applicant

_____________________

Coram: Hon. Stuart-Moore Ag CJHC, Mayo VP and Leong JA

Date of Hearing: 1 February 2000

Date of Judgment: 1 February 2000

_______________

J U D G M E N T

_______________

Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 20 November 1996, the Applicant (D5 at trial) was convicted of two charges of wounding with intent and two charges of common assault, following a trial before Judge Chua in the District Court. The Applicant was sentenced to a total of 30 months' imprisonment and, considerably out of time, he now applies for leave to appeal against conviction. The Applicant did not file his notice of appeal until 8 June 1999. The reason for this is that he absconded during the trial and was convicted and sentenced in his absence. It was not until 26 May 1999 that he was re-arrested.

2. Accordingly, the notice of appeal has been lodged approximately 2 1/2 years late. It goes almost without saying that no good reason for being out of time in serving a notice of appeal has been advanced in the light of the circumstances which have brought about the delay of this hearing.

3. We are not precluded, of course, from looking de bene esse at the merits of the appeal for the purposes of ensuring that we do not shut out a ground which carries weight. With this in mind, we have looked at the merits of the arguments placed before us by Mr Mitchell-Heggs on the Applicant's behalf.

4. The perfected grounds of appeal extended to approximately four pages and were set out in about 16 paragraphs and sub-paragraphs, but these can be effectively encapsulated in a sentence. It is alleged that there was an irregularity in the trial because of the judge's refusal to stand aside to allow another judge to try the case in circumstances where there was a danger that the judge held a bias, or might be perceived to have held a bias, because of certain pre-trial events which were known to her.

5. Mr Mitchell-Heggs has argued that the perceived bias on the part of the judge arose because she had knowledge, not only of the pleas of the four co-defendants but, more importantly, of the agreed facts of those defendants in whose cases it was common ground between prosecution and defence that they had been allegedly led on and incited by D5 to commit the assaults on the victims named in the charges. Mr Mitchell-Heggs, who did not appear in the court below, emphasised that he was not alleging actual bias on the part of the trial judge.

6. In her Reasons for Verdict, the judge referred to the application, which she had rejected, made on behalf of D5 in these terms:

" I think it is appropriate at this point to say the 1st, 2nd, 3rd and 4th defendants pleaded guilty to lesser charges against them than were preferred against them on the original indictment. These pleas were accepted by the prosecution. In their respective agreed facts, there were references to D5 which were admitted to by the said defendants when put to them in court. These procedures took place before the trial against D5 started. (The defence solicitor) applied to have D5's trial before another judge on the basis that having heard and seen the admitted facts identifying D5 in the said attack by the other four defendants, I would be prejudiced against D5. I assured him as a professional juror I would ignore those admitted facts and refused the application. It would certainly have been better if those admitted facts had not identified D5. (The defence solicitor for D5) had not applied to (the prosecutor) nor any of the defence counsel to omit identification of D5. The basic principle remains the same; admissions only act against the maker. Those admitted facts played no part in my deliberations on the evidence in the trial of D5."

7. The judge had found herself in a familiar situation where some defendants in a multi-handed indictment had pleaded guilty and had blamed a co-defendant who intended to contest the charges with involvement in those offences. However, identification was the sole issue concerning the Applicant, and this, to an extent, distinguishes this case from others where broader evidential considerations are involved.

8. It may, in these particular circumstances, have been better if the judge had not tried the Applicant. The fact remains that the judge was professionally able to put out of her mind the allegations of the co-defendants, just as she would have been able to do if the trial had involved all the defendants where the Applicant would have been blamed by the others in their confession statements which were inadmissible as evidence against him.

9. The evidence against the Applicant was provided by three witnesses, all of whom happened to be police officers, who identified him having seen him in good lighting and in close proximity. The Applicant himself absconded at the close of the prosecution's case with the result that the evidence was all one way. The trial, of course, continued in the Applicant's absence as he had voluntarily absented himself. The evidence was overwhelming. The case against the Applicant was not in any way concerned with or affected by the admitted facts of his co-defendants. We have concluded, taking the test from R v Gough [1993] 97 Cr. App. R. 188, that there was no real danger of bias on the part of the trial judge.

10. Accordingly, we refuse leave to appeal out of time and the application is dismissed.

(M. Stuart-Moore)	(Simon Mayo)	(Arthur Leong)
Ag Chief Judge of the High Court	Vice-President	Justice of Appeal

Representation:

Miss Louisa Lai, SADPP (Ag) of the Department of Justice for the Respondent.

Mr Anthony B. Mitchell-Heggs instructed by Messrs William Au & Co. for the Applicant.