Case Detail

CACC000131/1991

IN THE COURT OF APPEAL	1991, No. 131
	(Criminal)

BETWEEN
	THE QUEEN	Respondent

	AND

	CHAU Kwok-hung	1st Appellant
	CHAU Kam-ming	2nd Appellant

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Coram: Hon. Fuad, V.P., Penlington & Nazareth, JJ.A.

Date of hearing: 24 January 1992

Date of delivery of judgment: 21 February 1992

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J U D G M E N T

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Penlington, J.A.:

1. The applicants were convicted by His Honour Judge W. Wong on the 11th March 1991 on two charges of wounding with intent to cause grievous bodily harm. They received sentences of three years' imprisonment on each charge, the terms to be served concurrently.

2. The incident giving rise to those charges arose out of a trivial dispute, as is so often tragically the case, which occurred in the Snake Forest Restaurant at Sai Lau Kok Road, Tsuen Wan, 1:30 a.m. on the 9th April 1989. It was not in dispute that a group of young people, including two brothers, Cheung Chi Kin and Cheung Chi Kit, had a dispute over a chair at a table (No. 17) in the restaurant, which apparently was very crowded. One of the Cheung group, Lam Ping Hung, had gone to the toilet and when he came back he found his chair had been taken. He had an argument about this with the person who was occupying his chair who, it was the Crown's case, was the 1st applicant (D1). He was with another group at a nearby table (No. 10). The argument continued and eventually the manager came and told the Cheung group to leave. They paid the bill and did so. However when they got onto the road outside the restaurant they were attacked by two men wielding knives which, it would seem, they had obtained from the restauraht's kitchen. It is the Crown's case that these two men were D1 and the 2nd applicant (D2) and that they then inflicted severe wounds on the Cheung brothers.

3. There is no dispute that the Cheungs were injured by assailants and the only point in issue was one of identification. It was the defence case at the trial that the identification of the applicants by various witnesses from the Cheung group and by some restaurant employees was not of sufficient standard to justify the trial judge finding that he was satisfied beyond reasonable doubt that the assailants were the applicants. It has been argued here that the evidence was firstly unsatisfactory and that secondly the trial judge has made findings of fact which, on the evidence, he was simply not entitled to come to.

4. Following the incident there were apparently two identification parades. The first of these was on the 10th May 1989 and the second on the 17th July 1990, both at Tsuen Wan Police Station. Evidence was given regarding this latter parade by the officer in charge of it, Chief Inspector Boyton. He related the manner in which the parade was conducted and he produced as an exhibit the parade book in which he had written down a detailed account of the conduct of the parade. There was no objection to his producing the book at the time but the point is now taken that there was no power for the trial judge to admit the book as an exhibit in that manner. It was not in dispute that D2 was one of the persons on that identification parade. So far as the first parade was concerned the parade book was not produced nor was any evidence called from the officer in charge of it.

5. It would seem that at the close of the Crown evidence the court was informed that the defence had no submissions to make at that stage and would not be calling or giving any evidence. The trial judge then decided that he would inspect the scene. That was duly done, though complaint is made that the trial judge failed to keep a record of what he observed. Little however seems to turn on that.

6. When the court resumed some three days later the trial judge asked prosecuting counsel as to the evidence of the first identification parade. He was informed that the evidence "was agreed" though it is by no means clear what was agreed. However defence counsel disputed that and said he objected to the evidence being produced at that stage. His only reason was "it's a crucial mistake". Prosecuting counsel then said "I don't see how my learned friend can say he would not agree because he said he would only require Boyton to be called. It was agreed. If it is not agreed I would ask for leave for the inspector to be called". The trial judge however ruled that as the prosecution and the defence had closed their case, and although it was unfortunate because it was an oversight, reluctantly he would not grant leave. The failure to produce evidence regarding the first identification parade has been the main ground of appeal of D1 and we are quite unable to understand why the trial judge would not allow the Crown leave to call the evidence when the failure to do so was simply due to a misunderstanding between counsel. It was not an oversight. The defence had not called any evidence and had made no submissions at the close of the Crown's case. There could be no question of any prejudice to the defence in allowing the Crown to call this evidence which was necessary to ensure a proper trial. Where there is such a misunderstanding such as this and there is no prejudice to the defence there is no reason why the prosecution should not be allowed to call the additional evidence.

7. The facts here are very similar to R. v. Francis (1990) 91 Crim. App. R. 27. There the prosecution had failed to give evidence as to the number of the position at which the defendant was standing at an identification parade. Lloyd, L.J., giving the judgment of the Court of Appeal, held that the trial judge was perfectly proper in allowing this evidence to be given after the prosecution had closed its case. He said:

"it appears from that passage that Mr. Price was under the impression, rightly or wrongly, that the name of the persons standing at position 20 was not in issue. That was the reason why he did not ask the question of the police officer. Whether that was his fault or not may not matter. That was, as Mr. Price has confirmed to us this morning, his understanding at the time. Mr. Thomas has very properly accepted what Mr. Price has told us. It follows that the failure to adduce the evidence in this case was not due to any oversight on the part of Mr. Price but to a simple misunderstanding between counsel."

8. Here the defence should not have tried to take advantage of a misunderstanding and the trial judge should not have permitted it to do so.

9. Both the victims gave evidence. The first one, Cheung Chi Kin, was not considered by the trial judge as a reliable witness because he had not been involved in the quarrel between the two groups and had just returned to the restaurant at the time of the incident outside. He agreed in cross-examination that he had only a fleeting glimpse of the assailants. The evidence of the second of the victims, Cheung Chi Kit, was also not given any weight because he had said in evidence that he had been drinking, that he was not at the table when the quarrel started and that he had been told by his friends what had happened. He said that he picked out a person at the second identification parade because he looked similar to one of the attackers.

10. A further one of the Cheung group who gave evidence was Yip Fai Hung who identified the D1 in court and said that he was present at the scene and had been armed with a beef knife. He attended the identification parade on the 10th May 1989 and he identified D1. However in reply to a question from defence counsel "At the identification parade you picked out a person similar to the person who chased you?" He answered "Yes". That answer was regarded by the trial judge as fatal to his identification evidence. With all due respect we imagine that the great majority of witnesses who have identified somebody at an identification parade and were later asked that question would reply in the same way. However the point was not taken up in re-examination and clearly we cannot go beyond the judge's finding that he could not rely on this witness.

11. Cheung Chi Wai, who is the brother of Cheung Chi Kin and Cheung Chi Kit, identified D2 in court and said that he had also identified him at the identification parade on 19th July 1990. On the 10th May 1989 he had identified a person as having taken part in the chopping incident. He did not however pick out that person as being in court. Moreover in cross-examination he agreed that the person he had identified on the 10th May 1989 was in fact an actor and not somebody who had taken part in the attack. The trial judge nevertheless said he found him to be a witness of truth.

12. Choi Mui Ling is the wife of Cheung Chi Kit and said that she was present when the quarrel occurred. One of the persons that they quarrelled with had identified himself as being "police". She said she had not been drinking and described the lighting conditions in the restaurant as normal. She identified both the applicants in court. She said that she went to an identification parade on the 10th May 1989 and she identified somebody there as one who had chopped people that night. However she then said that the person was not the first person sitting in the dock. It was agreed in this appeal that D1 was that person. She then said that a year later she went to another identification parade and she could recognise again another person who had taken part in the incident. She said "I can recognise both but I cannot remember who I picked out on which occasion. One I saw who chopped someone and the other one I did not see chopping people. D2 chopped people." In respect of her evidence the trial judge said that he considered her to be a witness of truth and accepted her evidence. He then went on to say "She picked out the Defendants in the identification parades. She picked out both Defendants in Court." With respect the trial judge did not have before him evidence to justify that conclusion in respect of Dl. There was no evidence that he was present at the first identification parade, in the absence of evidence from the officer who conducted that parade. Choi Mui Ling's evidence was that the person she picked out at the first parade was not D1.

13. Choi Wai Ling, who is the sister of Choi Mui Ling, said that she was present at the dispute and that when she left the restaurant she saw two people holding sharp weapons rushing out. She identified D2 as one of them. She recognised him in court and she said that she identified him at the identification parade in July 1990. Her evidence was also accepted by the trial judge as being that of a witness of truth.

14. The next witness was Wong Shuk Lan, who was a waitress in the restaurant on the night. She said she was present when the quarrel took place and that she summoned the manager in order to have it stopped. She said that she saw two men rushing from the kitchen after the incident in the restaurant, armed with knives, and she could recognise both of them if she saw them again. She said that she recognised D2 as one of the men but that she did not see the other person in court. She said that she had been to the identification parade in May 1989 where she identified a man as "one of the customers at Table 10". Earlier in her evidence she said that the argument had been between the customers at table 17 and table 10. There was therefore a clear link between the customers at table 10 and the persons who came out from the kitchen with knives. Again, however, in the absence of any evidence from the officer who conducted the May 1989 parade there was no evidence that the person she had identified at that parade was either of the applicants. She could only recognise one of them, D2, as being in court and there was no evidence that he was at the earlier identification parade. However in his findings the trial judge said that she had identified D1 at the first identification parade. There was no evidence to justify that finding.

15. Evidence was given by the cook at the restaurant who said that he saw two men rushing to his kitchen, grab knives and leave. He could not identify either of them. The only other witness as to identification was Lee Ka Tung who was the barman in the restaurant. He said that he heard the quarrel that occurred between the person at table 10 and 17 and he said that one of the people at table 10 had said "I am a police". He also attended the identification parade on the 10th May 1989 and he picked out a person at that parade as being the one who claimed to be police. However he could not identify that person in court. Again, therefore, there was no link between the person identified by this witness at the earlier identification parade and either of the applicants. The trial judge said of this evidence "PW10 the bar tender - I accept his evidence. He saw clearly what happened from the bar. He saw them got up and went into the kitchen. He saw them in the kitchen and saw them grabbing hold of knives and then rushed out of the kitchen. He identified D1 during the identification parade." There was no evidence upon which he could come to that finding in respect of D1.

16. We are satisfied that in the absence of evidence as to the holding of the first identification parade there was no basis for the trial judge's finding in respect of three of the witnesses that they had identified D1 at that parade. The conviction of D1 cannot stand and his application for leave to appeal against conviction is allowed, the appeal allowed, the convictions quashed and the sentences set aside.

17. The evidence that was given as to the holding of the second identification parade was from Chief Inspector Boyton. He said that he did not take any part in the investigation of the incident but he conducted the parade at Tsuen Wan Police Station. He said that D2 was on the parade. He made notes in the identification parade book and he produced that book. No objection was made to the production of the parade book. Chief Inspector Boyton said that because D2 was partially bald steps were made to see that he did not stand out in the parade as different from the others persons who were on it. Each witness therefore wore a blue plastic shower cap.

18. It is taken here as a ground of appeal that there was no proper base for the production of the identification parade book. It does not seem to have been an agreed document and there was no legal basis for simply producing such a record.

19. It has been very common practice in Hong Kong for many years that when a witness is called who has conducted an identification parade the identification parade book is produced as an exhibit. It may well be that there should be some specific statutory provision to allow this to be done but even before s. 65 of the Criminal Procedure Ordinance allowed for evidence to be tended by agreement the book was produced rather than to have the officer simply read out from it his notes of what had occurred. Here there was no objection to the production of the identification parade book and Chief Inspector Boyton's notes had in fact been typed out for the convenience of counsel and of the trial judge. We do not consider it is now open for the applicants to raise as a ground of appeal the production of the identification parade book. That would not be the position if there had been objection; then Chief Inspector Boyton would have been able to use it only to refresh his memory.

20. So far as D2 is concerned, he was identified by three witnesses whom the trial judge accepted as being witnesses of truth. This is based on dock identification, upon which little reliance can be placed in itself, but also at the identification parade held in July 1990, some 15 months after the incident. The grounds of appeal are based on the well known dicta contained in R. v. Turnbull [1977] 1 QB 224. It was argued that the witnesses had said that the lighting conditions were not ideal, some said "dim", and that they must have only had a fleeting glimpse of the assailants outside the restaurant when the lighting conditions were even worse. It is submitted that these considerations were not seen to be fully considered by the trial judge in coming to the conclusions that he did as to whether or not he could accept the evidence of each witness. We do not consider that ground has been made out. Indeed the trial judge has considered fully the evidence of some of the witnesses and has rejected it which, from a reading of that evidence, seems to be a view which was favourable to the applicants.

21. The position as regards D2 was therefore that the trial judge had correctly held that he had been identified by three witnesses, both in court and at the July 1990 identification parade, and he had found these witnesses to be persons on whom he could rely. We have fully considered the arguments that have been put to us as to the lighting conditions and to the opportunity that these witnesses had to make the identifications they did, in the light of the dicta in R. v. Turnbull.

22. We are satisfied that the trial judge was justified in accepting the evidence and on that evidence the conviction of D2 could not be considered either unsafe or unsatisfactory. D2's application for leave to appeal against conviction is refused.

23. We will hear counsel as to the question of a re-trial of D1.

	(R.G. Penlington)
	Justice of Appeal

Representation:

Nicholas E.W. Adams & Raymond Yu (William Au & Co.) for 1st & 2nd appellants

C. Coghlan for Crown

CACC000131A/1991

IN THE COURT OF APPEAL	1991, No. 131
	(Criminal)

BETWEEN

THE QUEEN

AND

LIU KING FAI

Applicant

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Coram: Hon. Sir Derek Cons, Ag. C.J., Kempster & Power, JJ.A.

Date of hearing: 4 July 1991

Date of delivery of judgment: 4 July 1991

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JUDGMENT

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Sir Derek Cons, Ag. C.J.:

1. We are unanimous that this application should be dismissed. I will give my own reasons and my Lords will add anything of their own or disagree as they think fit.

2. On the 27th of February last year Liu King Fai ("the 2nd defendant" as he was in the court below) was convicted by Barnes, J. on the unanimous decision of a jury, of a murder committed on 12th May 1988.

3. The victim was a heroin seller. He was found at about 2 o'clock that morning in a pool of blood in the playground near the foot of some stairs in the Lower Wong Tai Sin Estate. His legs and wrists had been slashed with a knife and there were other cuts upon him. There was no eye witness and he died at 6:25 that morning without re-gaining consciousness.

4. The defendant's evidence in the trial below, which was mainly extracted by way of cross-examination and was in general consistent with statements that he had made to the police upon his arrest some eight months after the incident, was that at the instigation of a man, he called him his "Big Brother", and with the help of two friends, he waited for the victim to return to the estate with the intention that they would then assault the victim, - in the 2nd defendant's own words, "teach him a lesson", - following a dispute which Big Brother had told him arose from the drug trade.

5. When the victim arrived that early morning the 2nd defendant and his two friends hurried over to him, but seeing them coming the victim produced a knife. The 2nd defendant therefore ran away, as did his two friends. But the victim pursued him, seeking to chop him, up a staircase of one of the blocks of the estate and along a corridor. Fearing that the corridor would lead to a dead end the 2nd defendant waited to ambush the victim, which he did successfully, wresting from the victim the knife that he was carrying. The 2nd defendant then ran back down the stairs up which he had just come, but the victim still pursued him, even hanging on to his clothing. To free himself the 2nd defendant struck at the legs of the victim, one of the blows striking the victim's wrist as the victim tried to ward off the knife.

6. The 2nd defendant was indicted with three other men. The 1st defendant, like the 2nd defendant, had also made statements to the police and it was known before the trial that those statements would be put in evidence. The statements of the 1st defendant were certainly not favourable to the 2nd defendant. They contradicted him in several details. But most importantly they showed that the 2nd defendant was in possession of a knife before the incident. That obviously would not lie happily with his proposed defence of self-defence or provocation.

7. Before the trial started counsel for the 2nd defendant applied for a separate trial. This was refused by Barnes, J. Counsel then applied that the statement of the 1st defendant should be "edited" so that all references to the 2nd defendant would be removed. This also was refused by Barnes, J. on the ground that it would be unfair to the 1st defendant's case, and being satisfied as well that he could give appropriate directions to the jury.

8. In this application for leave to appeal against the conviction the first two grounds contend that the judge's two refusals were wrong. The third ground is that in any event his direction to the jury was, in the circumstances, insufficient. We have been referred to the decision of R. v. Grondkowski [1946] KB 369 which makes it clear that a decision to order or refuse separate trials is a matter for the discretion of the trial judge alone, and provided that the discretion has been judicially exercised, the Court of Appeal will not interfere unless a miscarriage of justice has resulted. We have been referred to no authority dealing with the editing of statements, but in my view the same principles must apply.

9. In the present instance it would be difficult to suggest that the judge did not exercise his discretion judicially. As far as severance was concerned he listened to the arguments of counsel for the 2nd defendant. As far as the editing was concerned he listened to the counsel for all parties. The substance of the argument before us, as it was before him, is that the prejudice engendered against the 2nd defendant by the introduction of the lst defendant's statement was so serious that, however clear the direction of the judge, the prejudice could not be removed from the mind of the jury. For my part I cannot agree. It all depends upon the directions that were in fact given. The judge, at the request of counsel for the 2nd defendant, gave his direction to the jury just before the statement was introduced. At lunchtime on the same morning he reminded them of his direction and made a further, if short, reference somewhat later in the case. Finally he again drew attention to the question at the very beginning of his summing-up. It is suggested that his comments were too general, that there should have been an express direction to the jury to exclude from their mind what was said in the 1st defendant's statement about the 2nd defendant. As to that, it seems to me that the judge may well have had in mind the danger of emphasizing to the jury the very facts which he wished them to ignore, as he had with regard to the evidence of the defendants' previous convictions. In addition itwas said that there should have been an express direction to ignore, in relation to the 2nd defendant, the jury's conclusion of guilt (if such it should be) of the 1st defendant. But I see no reason to think, having regard to the very clear direction of the judge that the jury should keep their consideration of the case of each defendant separate, that there was any likelihood that they would have done otherwise. In my view the judge's direction as regards the 1st defendant's statement was sufficient. Moreover there is no indication that the jury relied upon it in order to convict the 2nd defendant, indeed there was ample evidence, apart from it, to support their conclusion. I see no miscarriage of justice.

10. The fourth ground of appeal, as it appears in the Perfected Grounds, is, with respect, not all that easy to understand. But counsel accepts that the substance of it is that the judge should have specifically directed the jury,when dealing with provocation, to the effect that the viciousness of the wounds inflicted might in itself indicate a loss of control. I accept that the judge could have said something to that effect, and there could have been no complaint had he done so. But at p. 17 of his summing-up he set out in detail the wounds inflicted, and on the following page incorporated them into his remarks on loss of control by reference to "the fatal blows". Choice of words is entirely a matter for the trial judge. For my part I cannot see that any fault can be laid against him for not using the exact words that counsel now suggests.

11. The fifth ground of appeal alleges that the judge misdirected the jury by saying that the two friends with whom he first approached the victim had "retreated". It is that particular word which is criticised. It came at the end of a part of the summing-up in which the judge commented adversely on the 2nd defendant's suggestion that he had run away when the victim produced the knife, when in fact his evidence was that he had run forward and passed the victim, albeit he said that he had been very close to the victim at the start. I think it appropriate to set out more fully what was said. I take it from p. 15:

"Does his evidence that he continued to advance past the deceased through that narrow space appear to you to be consistent with the action of one trying to avoid an attack or is it consistent only with an intention on his part to continue his aggression? A cornered man may very well have no other choice than to advance upon his attack in order to escape. But, on his own evidence, the 2nd defendant was not at that stage a cornered man any more than were the two companions he said he had with him. If they were able td retreat, why couldn't he?"

It is suggested that there was no evidence to support the statement that the other two did in fact retreat.

12. The only evidence on this question comes from the 2nd defendant himself. In the video re-construction which he made later for the benefit of the police, and subsequently of the jury, he said he did not know where they had run. In his earlier statements he said at one stage:

"Therefore, that person took out a knife from beside where he stood and chopped towards us. All of us dodged."

and at another, when asked if there was any exchange of words,

"No. In fact that person took out the knife without giving us any chance to talk."

Asked what happened next he said:

"Then Ah Sing and An Piu dispersed in different directions whilst I ran up the side staircase of Block 17."

There was certainly no evidence that the other two rah with him, i.e. past the victim, and the 2nd defendant indeed never gave any real explanation for adopting what must have seemed to the jury a most curious route of escape. In my view, in the circumstances the judge's comment was both understandable and acceptable.

13. The sixth ground is merely a suggestion that in view of these circumstances the conviction was unsafe and unsatisfactory. In my mind it was not.

Kempster, J.A.:

14. I agree with all that has been said by my Lord. There is nothing I can usefully add.

Power, J.A.:

15. I also agree and have nothing to add.

(Sir Derek Cons)	(M.E.I. Kempster)	(N.P. Power)
Acting Chief Justice	Justice of Appeal	Justice of Appeal

Representation:

A.P. Duckett, Q.C. & Miss Michelle Tsang, Crown Prosecutor for the respondent

Frank Wong & C.K. Wong (D.L.A.) assigned for the applicant

THE QUEEN v. LIU KING FAI

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