CHOI WAI-MING v. THE QUEEN

CACC000649/1982

Headnote

Criminal appeal - complaints by victim shortly after attack - whether complaints admissible as forming part of res gestae- victim failed to identify appellant at identification parade - after the parade victim explained to a police officer why he had not identified the appellant - admissibility of such explanation - victim also told the same police officer he was in fact able to identify appellant - whether such identifications evidence admissible.

IN THE COURT OF APPEAL	1982 No. 649
	(Criminal)

BETWEEN

	CHOI WAI-MING	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Huggins V.P., Yang and Barker JJ.A.

Date: 22 December 1982

 

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JUDGMENT

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Yang J.A. :

1. At about 9 o'clock in the morning of the 7th November last year at the Chung Hing Industrial Building, a victim (whom I shall refer to as P.W.1) was badly, injured by an attacker using a chopper. It is not disputed that P.W.1 and the Appellant worked together for about a month in October last year. It would appear from the evidence that on one occasion the Appellant was asked by the employer to perform a driving duty which the Appellant refused to do, whereupon the employer requested P.W.1 to do it and P.W.1 complied. Shortly after this incident the Appellant was dismissed. It was part of the Crown's case that that incident provided the motive for the Appellant to attack P.W.1 in revenge.

2. The learned trial Judge in his judgment relied largely on the evidence of the victim who was able to identify the Appellant as the person who attacked him at the Chung Hing Industrial Building and who then ran away.

3. In the appeal before us today, three grounds have been advanced. Firstly, there is a complaint that evidence was admitted that almost immediately after the attack P.W.1 mentioned to a colleague that the Appellant was the person who had attacked him. Some 15 minutes later when the Police arrived, P.W.1 informed the Police that the attacker was the Appellant. It was argued on behalf of the Appellant today that that evidence being hearsay and not forming part of the res gestae should never have been admitted. It was argued on behalf of the Crown that the complaint or the information given by P.W.1 to the colleague almost immediately after the attack did form part of the res gestae though perhaps the information given to the Police who arrived 15 minutes later did not. We are of the view that this is not a res gestae situation, and that neither statement should have been admitted in evidence.

4. The Judge in his Reasons for Verdict stated that the information given by P.W.1 to his colleague and the policemen added nothing” if P.W.1 were in fact mistaken". It is said that the Judge might perhaps have used the information given by P.W.1 to his colleague and the police officer as evidence supporting P.W.1's evidence of identification. It is a possibility which cannot be completely ruled out in this case.

5. The second ground of appeal is that on the 5th November P.W.1's workmate told bin that the Appellant was angry with him and was going to do something so serious that P.W.1 would not be able to, get married. This evidence came in by way of explanation as to why P.W.1 failed to identify the Appellant at the identification parade held at the Police station. The complaint against the admission of this piece of evidence is that this is hearsay evidence. We are of the view that this is not true hearsay. The evidence was admitted not to prove the truth of what was said but simply to prove the state of mind of P.W.1 as to why he did not identify the Appellant at the identification parade. Indeed, it is only fair to say that this particular ground of appeal was net pursued with vigour. This ground of appeal fails.

6. Thirdly, the complaint advanced on behalf of the Appellant is that at the identification parade held on the 12th November last year P.W.1 who attended the parade failed to identify the Appellant but evidence was admitted to show that after P.W.1 had left the room where the parade was held he gave an explanation to a police officer other than the one who conducted the identification parade as to why he did not identify the Appellant. Evidence was given that P.W.1 told the police officer that in fact in e was able to identify the Appellant but he was afraid of doing so because he feared that the Appellant might perhaps do harm to him at a later stage.

7. In our view this piece of evidence was wrongly admitted and, though it has not been argued on behalf of the Appellant, one cannot entirely rule out the possibility that the trial Judge might perhaps have used this piece of evidence as evidence supporting P.W.1's initial identification of his attacker. Having said this however one cannot overlook the fact that P.W.1 was believed by the trial Judge and that the Crown's case relied almost entirely on P.W.1's evidence.

8. Taking all the circumstances into consideration we feel that the proper course in this case is to allow the application, treat the hearing today as the appeal itself, quash the conviction and order a new trial.

	T.L. Yang
	Justice of Appeal

Representation:

Mr. I. Payne (Robertson, Double & Boase) for Appellant.

Mr. Kilgour for Crown/Respondent.