WONG KAM-FAI v. THE QUEEN

BETWEEN

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

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V. -P.:

1. As the argument in this case finished very late in the afternoon, we announced our decision and said we would give our reasons later.

2. It was an appeal against conviction on a charge of possession of an offensive weapon in a public places. The only ground argued was that the District Judge wrongly treated as evidence a question put to a defence witness in cross-examination and answered in the negative This argument was based upon this statement at the end of the Reasons for Verdict:

"With reference to the last point made by Mr. So, the girl friend was not interviewed until approximately two hours after the arrest and it was suggested to her in cross-examination that she had given a different account of her movements when questioned by a Detective Constable."

This passage was factually corrects. In examination-in-chief the witness said that she had been with the Appellant from 2300 on the night before the alleged offence until about 5 minutes before his arrest at 0435 and she detailed the places to which they had gone. In cross-examination there occurred the following exchange:

However, although the statement was true, it is not clear what relevance the judge thought it had. The witness's evidence did not give the Appellant a complete alibi:  it merely tended to support his account of his movements and possibly to make it less likely that he would be carrying a weapon. Her evidence was thus of only peripheral value. Nevertheless, we cannot conceive of any reason why the judge should make the statement he did unless he was suggesting that the witness had in fact told a different story to the police, that she was therefore not to be believed and that this weakened the case of the Appellants It is true that he had reached a decision as to the credibility of the witness earlier in his judgment, where he had based himself upon her demeanour, but he then went back to address his mind to three alleged conflicts between the Appellant and the witness and to the arguments by which the Appellant's advocate sought to destroy or to minimize them. These conflicts could only be relevant as to credibility.

3. We have already said that the evidence of the witness, even if credible, was of only peripheral value, but it was nevertheless something which the judge had to consider and, as he may have disbelieved it partly for a wrong reason, the Appellant was prejudiced. We therefore came to the conclusion that the conviction could not stand.

21st February 1984