Case Detail

CACC000125A/1982

IN THE COURT OF APPEAL

1982, No. 125

(Criminal)

BETWEEN

	THE QUEEN
	and
	CHEUNG PING-KEI
	__________	Applicant

Coram: Hon. McMullin, V.-P., Leonard, V.-P., & Cons, J. A.

Date: 8th June, 1983.

__________

JUDGMENT

__________

McMullin, V.-P. :

1. The applicant Cheung Ping-kei was convicted in the High Court on the 2nd of February 1982 of the murder of a man called Ng Chi. He subsequently sought leave to appeal against conviction out of time. This application was refused by the Court of Appeal on the 8th of November 1982, Sir Alan Huggins, V.-P., pointing out that in the case of a conviction on a charge involving capital punishment, the court - under the law as it still persists in this territory - has no power to extend the time for lodging a notice of appeal. The case came before us by virtue of an order made by His Excellency The Governor under the provisions of s.83P(1) (a) of the Criminal Procedural Ordinance, Cap. 221.

2. Ng Chi lived with his wife Lau Yin-fun, two children and other family members in an apartment on the 6th floor of Block 2, Tung Tau Estate, Wongtaisin. On the 27th of July, 1981, Ng Chi was sot upon by a number of men armed with knives at about 8 a.m. in the public street near his home. His assailants inflicted upon him a number of very grave wounds and then fled, leaving him mortally wounded. There was no eye witness to the attack who could identify any of the assailants. The injured man was removed to hospital shortly after the attack. He was given emergency treatment but he died of irreversible shock resulting from massive bleeding early on the morning of the 28th of July.

3. The applicant, Cheung Ping-kei, was arrested together with his wife and another woman at the Ding How Restaurant on Nathan Road on the afternoon of the 29th of July and taken to Kowloon Police Station. He was cautioned upon arrest and subsequently, at the police station, he was interviewed by Detective Sergeant Tsoi Shu-yip, No. 6970. The case for the Crown rested primarily upon a statement allegedly volunteered immediately after the caution had been recorded and signed by him. In this statement, which was written in part by himself and in part by the Sergeant at his dictation, he confessed to having procured several named persons to carry out this attack upon Ng Chi. This confession was admitted in evidence after challenge by the defence and trial of the issue of voluntariness in the absence of the jury.

4. There was no other direct evidence against the applicant but throughout the trial, and in the prosecutor's speeches, much was made of an incident which occurred 10 days prior to the killing of Ng Chi, upon which the Crown relied as supplying motive for the attack.

5. Lee Po-yeung, a boy of 16 years, told the court that on the 17th of July, he was sleeping in a corridor on the 5th floor of Block 2 where he was wakened by the sound of glass breaking somewhere below. Very shortly after that he was confronted by a group of young men who accused him of throwing a bottle to the ground. He was assaulted by these men some of whom were using sticks. He identified the applicant as the ring leader of the group and his principal assailant. The deceased, Ng Chi, and his brother who lived on the 6th floor arrived on the scene and attempted to intervene on behalf of the boy. There was a heated interchange between the applicant and the deceased in the course of which the applicant used violent and obscene language and made references to his triad connections including, according to Lee Po-yeung, a statement which the latter understood as meaning that the applicant was charged with the duty of enforcing the writ of the King Yee society in Blocks 1 & 2 which he alleged were within the territory of that society.

6. According to the prosecution witnesses Lee Po-yeung and Ng Sau-keung (the youngest brother of the deceased), the applicant and his friends also assaulted Ng Chi and the episode ended with the applicant warning Ng Chi, in violent terms, to be careful in the fixture as the applicant and his friends withdrew.

7. The applicant gave evidence and he denied not only being involved in any way with the killing of Ng Chi, but also any involvement with the episode of the lath of July. He admitted being present at a cooked food stall located immediately below the 6th floor of Block 2 on the night of the 17th and he described how he received a severe cut to his lip from flying glass as a result of a bottle being thrown from one of the upper storeys. He said however that, having stanched the blood as best he could, he made his way home and thereafter went to hospital where his lip required surgical attention. The fact of his having received such an injury in the manner described was not disputed. He also denied being a member of any triad society. In the course of the voir dire, evidence was led as to his criminal record which did not include any conviction relating to membership of a triad society.

8. Upon appeal Mr. Martin lee took a number of points on behalf of the applicant, but in the event there were two matters only which appeared to us to be of such substance as to warrant the court's interference. Although the substantial evidence against the applicant consisted of his confessional statement, without which there would have been nothing to found the verdict of guilty, yet the strong emphasis throughout the trial upon the "motive" evidence must necessarily have fortified the jury's impression of the truth of that confession. The Crown's case was that this was a typical act of triad revenge and the applicant's alleged identity as a triad official of some importance, who had led his gang in confronting the boy on the 17th of July, was obviously an important feature of that case.

9. The first of the points which caused us concern is as follows. Upon the hearing of the appeal, it was drawn to our attention that there were material discrepancies between the evidence given by the deceased's wife, Lau Yin-fun, Lee Po-yeung and Ng Sau-keung and what they had told the police in the earliest statements recorded from them. None of those witnesses had mentioned any assault upon Ng Chi by the applicant or his companions during the episode of the 17th of July. These statements had all been made on the 28th of July, the day following the killing of Ng Chi and had the jury been aware that the witnesses had fortified their evidence in this way, it might very well have affected their assessment of the reliability of the witnesses' sworn testimony.

10. Secondly, and more importantly, there was a serious procedural error in the course of the trial which went unchallenged and uncorrected and which was likely to have occasioned a miscarriage of justice. Pursuing the theme of triad involvement, Counsel for the Crown cross-examined the applicant upon the contents of a document which, as we now understand, was in fact the "antecedents" statement recorded from the applicant by a police officer shortly after his arrest in the Kowloon police station. This document was neither proved nor produced in evidence and Counsel made it clear that he was not proposing to call the witness who had taken that statement, It is clear from the record that counsel held this document in his hand when putting his questions, for at one stage the note records that the document was handed over to the interpreter to check upon some question of pronounciation. Cross-examination went as follows:

"	Q.	I suggest that whilst you were being processed by this officer sitting at the back of the court, he asked you in respect of your antecedents, to which triad society you belonged.
	A.	No.
	Q.	L suggest that you replied "King Yee".
	A.	No.
	Q.	I suggest that he next asked you the name of your protector.
	A.	No.
	Q.	I suggest that you then replied "TSANG Kuen".
	A.	No.
	Q.	I suggest that he then asked you the time and place at which you joined this triad society.
	A.	No.
	Q.	I suggest that your answer to him was "15 years ago at Tung Tau Chuen".
	A.	No.
	Q.	And I suggest he lastly asked you what your rank in the triad society was and you replied "49", that is ordinary member.
	A.	No.
	Q.	You deny any of this took place.
	A.	I deny.
	Q.	Do you, ass matter of interest, know a person by the name of TSANG Kuen?
	A.	I do not."

11. Although in theory Counsel was fixed with the negative answers to his questions, the effect upon the minds of the jury must inevitably have been to convince them that counsel had in his hands positive proof of the defendant's involvement in triad society activities so that not only was the case against him strengthened to that extent but also his credit as a witness was likely thereby to have been seriously undermined. Moreover this procedure was expressly disapproved by the Full Court in Cheng Chung-yat v. The Queen[1970] H.K.L.R. 269. In that case, as in the present case, the defendant was cross-examined upon matter contained in his antecedents statement, the purpose being to discredit him by getting him to give answers in the witness box inconsistent with those which appeared in the statement. At page 273 the court said:

"It follows, in our view, that a statement so obtained should not be used for any purpose whatsoever at the trial up to the point of verdict."

12. Counsel's purpose in the present case could have been served, if at all, only by producing the officer who had taken the statement by way of rebuttal of the defendant's denial of being a member of the triad society. Although the Judge expressly alerted counsel to the possibility of such rebuttal evidence, he declined to follow that indication.

13. For these reasons we were satisfied that there may have been a miscarriage of justice. We granted the application for leave to appeal, quashed the conviction and set aside the sentence. At the instance of Mr Alderdice for the Crown - Mr. Lee not seeking to contend to the contrary - we ordered that the applicant should be re-tried upon a fresh indictment.

Representation:

Martin Lee, Q.C. & Miss Celina Lau(Alfred Lau & Co.) assigned for Appellant.

G. Alderdice for Respondent/Crown.

CACC000125/1982

Criminal law - appeal - space for stating grounds of appeal in form of ''Notice of Application for leave to Appeal'' left entirely blank - after expiration of time for appeal Grounds of Appeal filed - the Notice of Application and the Grounds of Appeal could be read as one document but it took its date from the Grounds of Appeal - appeal out of time and incompetent.

IN THE COURT OF APPEAL	1982, No. 125
	(Criminal)

BETWEEN

CHEUNG PING-KEI

Appellant

AND

THE QUEEN

Respondent

----------

Coram: Sir Alan Huggins, V.-P., Yang Barker, JJ.A.

Date of hearing: 8 November 1982

____________

JUDGMENT

____________

Sir Alan Huggins, V.-P.

1. The Applicant comes before this court asking for leave to appeal against his conviction on a charge of murder. He was tried before a judge and jury and he was convicted and sentenced on 2nd February 1982. Two days later he filed what purported to be an Application for Leave to Appeal. It was in Form 7 in the Schedule to the Criminal Procedure Ordinance, but Part III of that form - which reads: "The grounds are as follows", then followed by some notes - was left completely blank. The statute provides a right of appeal if the rules are complied with and a notice in the prescribed form is required within 28 days of conviction. In the case of a conviction on a charge involving capital punishment this court has no power to extend the time for lodging a notice. Therefore it is vital for us to decide whether the Notice which was filed on 4th February was a valid notice of application or it was a nullity. Although no grounds were stated in that document, on the 2nd July - that is some five months later - grounds of appeal were filed and it is upon those grounds that the Applicant seeks leave to appeal.

2. Mr. Lee has, of course, been faced with the decision of this court in Wong Tak Leung v Reg. 1981 Cr. App. No. 645, where we held that in a case such as this a notice which did not state grounds of appeal was ineffective and that any amended notice - which is in effect what a notice of grounds of appeal is - must be filed within the 28 days allowed. He sought to persuade us that this decision was wrong and he has argued very forcibly the difficulties which face an appellant. Nevertheless we are not persuaded that that previous decision was wrong. It is conceded that there is nothing inherently absurd in the interpretation which was there adopted. It would have been difficult to argue the contrary, since the English rules have been held to provide that a notice which does not state the grounds on which the appeal is to be based is invalid: Reg. v Wilson 1973 Crim. L.R. 572. It must not be overlooked that upon receipt of a valid notice the Registrar is required to take various steps, which include the obtaining of papers for the use of the Court of Appeal. Until he known the grounds of appeal it is impossible for him to decide what papers will be required. If he assumes that a complete transcript of the notes of proceedings will be required, much waste of time and money can result.

3. In the course of the arguments in the two cases there has been used the phrase "breathing life into the original notice of appeal". That, we think, is an unfortunate phrase to use, because it suggests that the original notice is not a nullity and that, although it has the appearance of lifelessness, there is life there already. The true position, we think, appears from the words which were used in Wong Tak Leung v Reg., where we said that, where grounds of appeals were added within the 28 days to a notice which originally did not state the grounds, the two documents could be read together, or, as Mr. Egan has put it, the filing of the grounds completes the whole; and it follows from our previous decision that what happens is not that life is breathed into the original document but that the original document is read as if it were part of the new document. The new document, standing alone, would not be a notice of appeal at all: it merely states grounds of appeal. However, when read with the original notice it becomes a complete notice of appeal with the grounds stated. The importance of the way in which one looks at it is that one has to decide what is the date of the notice of appeal which is then before the court: in our view it is not the date of the original notice – which is, in this case, 4th February: it is the date of the grounds of appeal - which, in this case is 2nd July. By the 2nd July time for appeal had expired. There is no power in such a case to extend the time and therefore this application has to be dismissed.

4. It is urged that such an interpretation is to give too narrow a meaning to the Criminal Appeal Rules. It is pointed out that the English rules expressly provide, in so many words, that the grounds of appeal shall be stated. Our rules do not say in so many words that the grounds must be stated, but in our view on any reasonable interpretation of the rules the grounds must be stated, because the Applicant is obliged to use Form 7 and on any reasonable interpretation of Form 7 he is required to state his grounds of appeal. I referred to the notes which appear in Part III, one of which is that "if grounds of appeal have been settled and signed by counsel, they should be sent with this form and this Part may be left blank". That surely is a clear indication that that space should not normally be left blank and that, if there are not accompanying grounds settled by counsel, that blank must be filled up with the grounds of appeal. That, we think, should not be beyond the comprehension of any applicant.

5. I think that covers all the, matters to which it is necessary to refer and for the reasons we have given this application must be dismissed.

8th November 1982

Representation:

M. Lee, Q.C. & Miss T. Trieu (Alfred Lau & Co.) for Appellant.

K. Egan for Crown/Respondent.

THE QUEEN v. CHEUNG PING-KEI

Related cases with same parties

Files (2)