The Queen v. Tam Kwok-siu and Others

CACC000144/1984

BETWEEN

Coram: Sir Alan Huggins, Ag.C.J., Li & Fuad, JJ. A.

Date of Judgment: 6th July 1984

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JUDGMENT

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Sir Alan Huggins, Ag. C.J.:

1. These are appeals by five Defendants who were charged with riot and unlawful assembly. The only matter we have to consider is whether the verdicts were unsafe and unsatisfactory. Each   verdict and the evidence relating thereto must be considered separately, but there are allegations which affect all the Defendants equally.

2. The first matter which must be mentioned is that by reason of a failure to observe the repeated exhortations by this court to ensure that exhibits are properly marked, we have been left in doubt as to important facts. It appears from the record that a plan of the scene was shown to one of the witnesses and that he marked thereon various things. We do not know whether that plan was agreed to be accurate, and more importantly we do not know whether it was the document which was produced to us. In the face of the other matters which have been argued before us we thought it would be wrong to pay any regard to this plan beyond recognising that some of the other evidence may not have been as clear as we thought it was.

3. The evidence related to the activities of one group of police officers involved in suppressing the disturbances which occurred in Kowloon on the night of 13th and 14th January this year. We hear nothing of these activities until about midnight, when the group went to the junction of  Nullah Road and Tung Choi Street. We do not know where it had been before, what its orders or information were or, in the absence of the plan, precisely where it stopped on arrival at the scene. The sergeant in charge had given instructions to the constables with him that they were to arrest people who had "let" fires. (Other evidence suggests that this should read had "set" fires.) All the prosecution witnesses said that there were two fires burning in the vicinity - one involving a wooden handcart - about 80 feet from where they stopped and another - involving a motorcycle - about 30 feet beyond that. Both fires appear to have been in Nullah Road and, by reason of the presence of two petrol stations in that road, must have constituted a serious danger. Around each fire was a large group of persons making a great commotion and apparently throwing objects into the flames. The group around the handcart fire dispersed rapidly on the arrival of the police, and none of those in it was caught. The police turned their attention to the group around the motorcycle fire. One of the constables was deflected when a looter from a nearby shop ran into him. The other constables went towards the motorcycle and each concentrated his attention on one or two individuals whom he saw to be throwing something into the fire. Only one constable failed to make an arrest. The remainder were successful in detaining one or more of the alleged rioters. Six officers told an almost identical story in which each said he was sure that his target was throwing something although (apart from one who said that the "something" was "solid") he could not say what the missile was.

4. It is the remarkable similarity of these stories (and all except one of the officers speak only to one Defendant) which has been a major subject of attack by the Appellants, and this argument has been strengthened by the admission of all but one of the constables that they had discussed the case together on one or more occasions. In his Reasons for Verdict the judge dealt with the case for and against each Defendant, and at the end he added some general comments. He there mentioned various specific matters he had taken into consideration in reaching his verdict,. As to the first of these, he said:

5. The difficulty we see is that, if inexperienced police officers were prepared to strive for consistency in relation to "distances and the like", there is a danger that they may have done rather more than that. It is true that the judge.saw the witnesses and we have not seen them and that he expressly tells us that he considered the danger very carefully. Were there no other reason for anxiety we might have concluded that there was not such a substantial lurking doubt that we ought to interfere, but there was another matter.

6. In assessing the witnesses the judge was to a greater or lesser degree impressed by all the prosecution witnesses as being worthy of credit and by all the defence witnesses as being untrustworthy. That in itself may not be remarkable, but we think it is remarkable that he summarily dismissed the evidence of Mr. CHUNG Shing, a witness called by 6th Defendant. He gave no reason for disbelieving this witness unless it is contained in this passage:

"He [CHUNG Shing] was the man who alighted from the minibus with 6th Defendant. He had no difficulty in getting across Nathan Road. He simple got off, with 6th Defendant, at Sai Yee Street and Nelson Street, walked up Nelson Street crossed Nathan Road, and thus got to the other side. However 6th Defendant, his colleague and someone who 'could be regarded' as his friend, who had finished work with him, caught a minibus with him, was going home to the same side of Nathan Road, and who knew where 6th Defendant lived could only say, in answer to the question why they didn't cross Nathan Road together by way of Nelson Road - 'We parted.' "

Unfortunately no one took the precaution of ascertaining exactly where in Reclamation Street the witness was living at the material time. If, as we must assume to be possible, Mr. CHUNG Shing was living at the southern end of Reclamation Street, it would have been not in the least surprising if the two men had parted company immediately on alighting from the minibus. Counsel for the Crown fairly concedes that on the face of the record the evidence of Mr. CHUNG Shing was wholly consistent with the case of the prosecution, as it was with the case for the defence : it might not assist 6th Defendant to any appreciable extent but it is the somewhat brusque rejection of it by the judge which makes us anxious whether the judge gave the dispassionate consideration to the defence evidence to which it was entitled. We appreciate that Mr. CHUNG Shing's demeanour may not have been impressive but nothing of that nature appears from the Reasons for Verdict.

7. As has been emphasized in argument, disturbances of this kind arouse strong emotions on both sides and there is often a temptation to gild the lily when giving evidence. Here what is suggested is that the young and inexperienced police officers did something more than gild the lily. The judge may well have been right in believing that they were telling the truth. However, we do find ourselves with a lurking doubt and we have no alternative but to grant the applications, allow the appeals, quash the convictions and set aside the sentences.

6th July 1984

Representation: