Lam Kwok-hing and Another v. The Queen

CACC000199/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 199 OF 1976

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Coram: Cons, J.

Date of Judgment: 9 March 1976

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JUDGMENT

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1. The 1st appellant was convicted of assault occasioning actual bodily harm. He was the ring leader of an attack upon a fellow prisoner in the Ma Hang Prison Annex.

2. In support of the general ground of appeal that there was no evidence or no sufficient evidence counsel mentioned three matters. First he said that there were two contradictions between the evidence of the victim as given before the magistrate and what was said in a document entitled "Brief Facts of the Case" and which it is argued must be based upon statements originally made by the victim. In evidence the victim said "before he beat me he said nothing" whereas according to the document the appellant said "you are a new man, do you know the rules?"; and again the victim said "inside the toilet there were a few other fellow prisoners there" but the document says "while the assault was taking place several other prisoners entered the bathroom and also assaulted the victim". There is nothing which specifically indicates how that document came to be incorporated in the file of the learned magistrate. It may be that it was handed up by the prosecuting inspector in lieu of a formal opening. It may be that it was not handed up until after the conclusion of the trial when the appellant's co-defendant, who had earlier pleaded guilty, was brought up for sentence and it is recorded that the facts were read and explained to him. This, in the circumstances, seems a more likely explanation. If it is the correct one then the short answer to counsel's point is that the document was not before the magistrate at the trial and of course he cannot be criticised for not paying attention to it. If on the other hand the document was a convenient form of opening the case it is a valid criticism that it was not borne out by the evidence. It is something the magistrate should consider. In doing so of course he would take into account the lapse of time that had occurred between the making of the original statement on which the opening was based and upon the possibility of error creeping in at that stage. Variation would not necessarily be fatal to the prosecution. The learned magistrate may, if the document were indeed before him, have actually considered the matters now put forward. He does not say so, but I would not expect a magistrate to comment upon every minor contradiction that occurs in a trial. And these are, to my mind, minor contradictions. The magistrate relied heavily on the actual demeanour of the witness in court. These matters would not in any event have made any difference.

3. The second matter comes from the evidence of the victim. "I spent an hour or so in bed and then launched a complaint". These words follow his description of the attack and it is suggested that they must be construed as meaning that he then made a complaint that he had been attacked and beaten. In that case it is said to be in contradiction with the evidence of the prison officer that the first complaint was confined to stomach trouble and that the victim only spoke of assault after the doctor had indicated his own suspicions. I do not think there is anything in this matter. There is a possibility of contradiction, but as the matter was not gone into at the trial I can say no more than that. The appellant was not represented at the trial and would probably not have appreciated this possibility himself. That is no ground however for drawing an inference which does not necessarily or even probably arise from the evidence as recorded.

4. The third matter put forward is that the magistrate has referred to the appellant twice as an "evasive witness" and yet in cross-examination the appellant was asked only two questions both of which were little more than formal and to both of which he gave a simple denial. On that it is said he can hardly be classed as "evasive". There may be some merit in this criticism. There is insufficient on the record to justify that description in the sense in which it is generally used. Yet when one looks at the findings as a whole it is clear that the magistrate formed a very definite opinion of the appellant and his credibility, or rather lack of it. I am not prepared to say that he was wrong merely because he has expressed that opinion in what appears to be a somewhat unusual way.

5. These three matters are not sufficient in themselves. Taken together they still cause me no anxiety. It is said that the defence offered by the appellant was logical. That may be so but it does not necessarily follow that it is honest. The magistrate found that it was not. There is nothing to show he was wrong in that conclusion.

6. As a particular ground of appeal it was urged that the magistrate failed to inform the appellant that he could call his co-defendant as a witness. It was accepted that the magistrate informed the appellant of his right to call witnesses generally but it was argued that he should have gone further and specifically mentioned the possibility of calling the co-defendant. It was suggested that it would not naturally occur to an unrepresented defendant that the right to call witnesses extended to a person who was himself also charged with the same offence. My experience over many years in the courts of this Colony would lead me to think otherwise but I will assume for the moment that this is so. Nevertheless I am not satisfied that a magistrate is required to go that much further. Indeed to my mind it is desirable that he should not. The moment that he mentions the name or identity of any particular person as a possible witness he leaves himself open to the criticism that he has entered the actual arena of the trial. Moreover his words might be misconstrued as a positive indication to call that particular person, which might not in all cases be to the advantage of the defendant. The magistrate has no way of knowing in advance what any particular witness is likely to say. It is better that he should in general confine himself to indicating that the defendant has a right to call any witness that he wishes and then making a note of the fact if the defendant declines.

7. The final ground of appeal was that there is nothing on the record to indicate that the appellant was given the opportunity to reexamine himself after he had been cross-examined or to address the magistrate at the close of all the evidence. It is in my experience not usual for an unrepresented defendant to wish to address the court in this manner, but it is, I feel, desirable that a note should be made to indicate that the opportunity was proffered. I do not wish to encourage the recording of unnecessary detail. As it is, the time taken to reord the essentials of the evidence and other matters must cause considerable frustration to counsel and solicitors and be particularly unnerving to defendants who appear for themselves. But matters of this mature that occur in every trial can easily be recorded by the briefest of abbreviations and need cause no actual delay in the proceedings. At the same time the need to make such a note may help to prevent the accidental omission of the opportunity itself.

8. But the need to allow the defendant the opportunity to reexamine himself or his own witness does not occur in every case. If there is a real need and it is not met this will be something to be taken into account, as it was in Reg. v. Shum Yan Kit⁽¹⁾. But in most cases there is no need and it would merely waste time to make the suggestion. The present case is very clearly one of the general class.

9. For these reasons I see no merit in any of the points that have been raised so far. I am willing now to listen to anything that defence counsel desires to say upon his application to call further evidence.

Representation:

Barretto (Lennox Bywaters) for 1st appellant. 2nd appellant in person.

B.T. Caird, Sr. Crown Counsel, for the respondent.

(1) [1957] H.K.L.R. 347 at 358