Yip Sai-hung and Another v. The Queen
Read the full judgment text of CACC 211/1972 on BabelCite. This Court of Appeal judgment.
1. This is an appeal which has caused the members of this Court a great deal of anxious consideration.
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CACC000211/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 211 OF 1972 -----------------
----------------- Coram: Rigby, C.J., McMullin & Leonard, JJ. Date of Judgment: 9th November, 1972. ----------------- JUDGMENT ----------------- Leonard, J: 1. This is an appeal which has caused the members of this Court a great deal of anxious consideration. 2. The two appellants, Yip and Chau, aged 19 and 17 years respectively, together with another youth named Chan who absconded before the trial, were jointly charged in the District Court, Kowloon, in that they, on the 23rd September, 1971, at Block 10 Lei Cheng Uk Resettlement Estate, Kowloon, being together with other persons not in custody, unlawfully and maliciously wounded POON Yuk-tak with intent to do him grievous bodily harm. The first appellant Yip, together with Chan, was also jointly charged in that they, at Block 1 Lei Cheng Uk Resettlement Estate, Kowloon, unlawfully and maliciously wounded TSUI Wai-man, with intent to do him grievous bodily harm. Yip was also charged with two further offences, namely, unlawful possession of an offensive weapon and resisting a police officer in the execution of his duty; such offences being allegedly committed on the 28th November. There were, therefore, four charges against Yip and upon all of these charges he was convicted. The second appellant, Chau, in addition to the joint charge against all three accused of wounding with intent, was also charged with the further offence of unlawful possession of an offensive weapon. He was convicted upon both charges. It is unnecessary to consider the further charges against the prisoner Chan, who absconded before the trial took place. 3. Upon conviction, the prisoner Yip was sentenced to a total of four years' imprisonment, and Chau to a total of three years and three months' imprisonment. They applied for leave to appeal against both conviction and sentence. 4. The case first came before the District Court on the 20th December, 1971. The two appellants, who were then the second and third accused - the first accused not being present to stand his trial - pleaded not guilty to all charges. They were at that time legally represented by a solicitor, a Mr. Duffy. It appears from the record of the case that Mr. Duffy asked for a trial date four months ahead in anticipation that the new rules providing for legal aid in criminal cases tried in the District Court would, by that time, have been brought into force. The trial was accordingly fixed for hearing for five days commencing on and from the 6th March. Shortly after mid-day on the 6th March the trial commenced - in the absence of Mr. Duffy, solicitor on the record as appearing for the prisoners - and it continued to the end of the day, seven witnesses in all being heard. On the following day, the 7th March, the trial commenced at 10.55 a.m. Mr. Duffy was present and sought to explain his absence on the previous day by saying :-
Finally, he applied for two weeks' adjournment "due to other engagements". 5. The court, not unreasonably, pointed out that the case had been fixed for hearing as far back as the 20th December, 1971, that it had been fixed for specific dates commencing as from the 6th March, that the court diaries were fully booked nine weeks ahead and that to adjourn the case for a fortnight would necessarily mean putting off other cases already fixed for hearing. The trial judge accordingly declined to grant an adjournment but very properly put at the disposal of Mr. Duffy the record of the evidence of the witnesses so far heard and indicated that it would give him leave to recall for further cross-examination any witnesses the testimony of whom had already been given. Mr. Duffy's reaction to that offer and that decision was to withdraw from the case. The result was, therefore, that these two youths, both with extremely serious charges the maximum sentence of which is life imprisonment (although limited to a maximum of five years when summarily tried in the District Court) were left to fend for themselves in a particularly difficult case which depended solely - in so far as the wounding charges were concerned - upon the uncorroborated testimony, in respect of each incident, of a single witness. If ever there was a case which required careful and detailed cross-examination of the credibility of prosecution witnesses it was this case. 6. We can readily appreciate that solicitors, like other professional men, cannot be expected to work unless their fees are paid. But that this solicitor, at some time well past the eleventh hour, should have withdrawn from this case in these circumstances and left these two youths, wholly unrepresented, to face these extremely serious charges, is a matter that we find so disturbing that we direct that a copy of this judgment, together with a copy of the relevant extract of the court record, be sent to the President of the Law Society for reference to a disciplinary committee of that Society as to the propriety or otherwise of the conduct of the solicitor, Mr. Duffy, in this case. 7. It is a matter of some relief to know that the new Legal Aid in Criminal Cases Rules have made their belated and long overdue appearance and that persons charged with serious offences involving life imprisonment, whether in the Supreme Court or the District Court, will now be entitled to legal aid. 8. Turning now to the facts of the case. Shortly after mid-day on the 29th November, a party of police officers in plain clothes proceeded to Block 11 Lei Cheng Uk Resettlement Estate and took up positions on the different floors of that block adjacent to the main staircase in the block - some at or near one landing, some at or near another. After they had been there for some time there was some sort of commotion and a number of persons were seen running down the stairs from the 6th floor. One of those persons was the prisoner Yip. According to the evidence of the police officer, Yip was running down the stairs with a long meat knife in his hand. He refused to stop when told to do so and struggled violently with the police officer who attempted to, and finally succeeded in, arresting him. Another of the persons running down the stairs was the prisoner Chau; he was seen running down the stairs with a chopping knife with a ten inch rectangular blade in his hand. When told by the police officer to stop he did in fact do so and, furthermore, dropped the knife he was carrying. At their trial both prisoners made unsworn statements denying the circumstances, as given in evidence by the police officers, in which they were arrested and denying individual possession of the knives. There was ample evidence to support the convictions of both appellants on the charges preferred against them of unlawful possession of an offensive weapon and the further conviction of the appellant Yip on the charge of wilfully resisting a police officer in the execution of his duty, and their applications for leave to appeal in respect of these convictions must be dismissed. 9. Their convictions on the other charges present more complex considerations. In the early morning hours of the 23rd September a 16 year-old-youth, named POON Yuk-tak, was making his way home alone to Block 1 of Lei Cheng Uk Resettlement Estate where he lived. When walking past the open space between Blocks 10 and 11 he was suddenly attacked by eight to ten youths; at least three to four of whom were armed with long knives. He received some 15 to 20 wounds, some cutting and some penetrating, and three of which penetrated his stomach and bowels. He was taken to hospital in a fairly serious condition and there he remained until discharged on the 2nd October. It was a brutal, murderous attack carried out by a number of persons on one person walking by himself. 10. At about 7 p.m. on the 15th October a 17-year-old youth, TSUI Wai-man, living in Block 1, Lei Cheng Uk Resettlement Estate, was attacked by a group of some three to four persons. At the time of the attack Tsui was talking to his friend, YAU Kwok-on, on the landing of the first floor of Block 1. The assailants were armed with knives or choppers and TSUI Wai-man, when admitted to hospital later that day, was found to have a five inch long chop wound on the left shoulder which, on an exploratory operation being carried out, was found to have penetrated right down to the scapula bone. Fortunately, there was no permanent injury and Tsui was discharged three days later. It would appear, however, that his friend, Yau - who was not available as a witness having apparently left the Colony for Taiwan-sustained more serious injuries. 11. These two vicious assaults on three different persons - two at least of whom lived on different floors in Block 1 Lei Cheng Uk Resettlement Estate - took place on the 23rd September and 15th October respectively. The two appellants - and, indeed, the first accused who absconded before the trial - were all arrested at one and the same time in Block 11 on the 28th November. 12. On the afternoon of the 30th November all three prisoners formed part of two identification parades of fifteen persons held at Sham Shui Po Police Station. At the first parade the two appellants - and the accused who did not stand his trial - were identified by POON Yuk-tak as forming part of the eight to ten persons who attacked him in the early morning hours of the 23rd September. 13. At the second parade the absconding accused and the first appellant, Yip, were identifed by TSUI Wai-man as two of the three to four persons who attacked him and his friend Yau in the early evening of the 15th October. 14. The convictions in respect of each of these two extremely serious offences depended solely upon the uncorroborated testimony of one victim in each instance. It is, therefore, of considerable importance to consider the evidence they gave as to the manner by which they were able to identify the accused as their attackers. 15. Dealing first with the incident of the 23rd September involving the 16-year-old youth, Poon, the sole witness to this attack was its victim who was apparently a reluctant witness as he did not appear to give evidence on the day on which he was first required although his mother attended court on that date and a witness summons was issued requiring his attendance. He normally lives at Room 514, Block 1, Lei Cheng Uk Resettlement Est te. He gave evidence that in September 1971 he was living apart from his parents on the staircase of Block 12 of the Estate, that he had no quarrel with anyone at that time, but that on the 23rd September 1971 he was returning there about 1.00 a.m. When he was walking past an open space between Blocks 10 and 11 he was suddenly, and for no reason known to him, attacked by 8 - 10 youths at least 3 or 4 of whom were armed with lengthy knives. He fell, and three or four persons chopped him with water melon and beef knives. On the question of identification he said :
16. Admittedly, the two appellants were unrepresented, but it is noteworthy that they did not think fit to challenge such damning evidence by a single question in cross-examination. They undoubtedly knew of their right to do so and of the purpose of cross-examination for the first appellant had asked questions of doctors who gave evidence for the Crown and of the victim of the other wounding, Tsui. Poon was seriously wounded, the medical evidence being that there were three penetrating wounds on the abdominal wall and four incised and two penetrating wounds on the back and his stomach and colon were found to have been penetrated. His evidence as to identification was supported by Superintendent MacDonald who held the parade at which Poon identified the appellants and produced the book in which a record of the parade was kept in which Poon is alleged to have "positively identified three 'suspects' (CHAN Po-kwong, YIP Sai-hung and CHOW Kwok-keung) in that order." The entry of the witness to the parade is recorded as having taken place at 14.43 hours and his departure two minutes later at 14.45 hours. The book was signed by the two appellants who had told Superintendent MacDonald that they had no objections or complaints as to the method of holding the parade. Once again, on hearing this evidence neither appellant saw fit to cross-examine Superintendent MacDonald. The two appellants elected, nevertheless, to give evidence on oath. The first appellant denied any knowledge of the witness Poon and denied having a grudge against him or that Poon had a grudge against him. In cross-examination, his explanation for Poon's identification was that Poon had been "pre-informed" by the police, that he (the first appellant) had wished to complain to Superintendent MacDonald of Police indicating to the witnesses at the identification parade whom they should identify but that he had been prevented by the Superintendent's interpreter from doing so. He also alleged that the sworn interpreter of the court had stopped him cross-examining both Superintendent MacDonald and his interpreter. He agreed, however, that his nickname was Sha Tam Keung, that the second appellant's nickname was Har Chai or Sai Chai and that CHAN Po-kwong's nickname was Tick Shik Kwong. 17. The second appellant also elected to give evidence on oath. In his evidence-in-chief he did not expressly deny having wounded the witness Poon. Indeed, although no evidence had been offered by the crown as to any statement having been made by him to the police, he volunteered in the course of this evidence that he had made a statement, as a result of police brutality, admitting the attack on Poon. 18. In cross-examination, he denied knowing Poon and denied that he had any grudge against Poon or Poon against him and alleged that at the identification parade, unbeknown to Superintendent MacDonald, certain unidentified policemen peeping through windows had pointed him out to Poon. 19. As far as the identification of these two appellants by Poon was concerned no question of mistake could possibly arise because Poon swore he knew both of them by sight and gave their correct nicknames. Logically, there are only three possibilities. The first is that Poon was deliberately lying at the behest of unidentified police officers (as suggested by both appellants); the second that he lied because he had a grudge against both appellants (as denied by Poon and by both appellants); and the third that Poon told the truth on the question of identification. 20. Had both these youths been represented at their trial their counsel might well have regarded it as of crucial relevance and importance to ascertain whether or not in their original statements to the police Poon and Tsui had made any reference to the identity of their assailants and, if so, in what terms. Again, if in fact they had given information as to the identity of their assailants, counsel on their behalf might well have enquired what explanation was there for the fact that the appellants and the prisoner Chan were not apprehended until the 28th November, over two months after the first incident and six weeks after the second incident. These are matters which would have been fully explored if these two youths had been legally represented. As it is, we cannot speculate as to them. The dangers of evidence of visual identification, particularly where such evidence depends upon the testimony of a single witness wholly uncorroborated by any other independent evidence, has been the subject of considerable comment and, indeed, criticism in the United Kingdom over the past few years. (See, for example :
The existence of rival gangs in resettlement estates is a matter of common knowledge and is, unfortunately, prevalent at the present time. The circumstances in which the two appellants and the prisoner, Chan, were arrested on the 28th November clearly give rise to the inference that they were members of a gang. Indeed, if the appellants had been legally represented at their trial, the circumstances of their arrest might well have justified an application being made to the court that the charges of unlawful possession of offensive weapons and the wholly independent charges of wounding be separately tried. Whilst there was no evidence at the trial that the individual complainants were themselves members of a rival gang or gangs - a matter which could at least have been explored in cross-examination if the appellants had been legally represented - Mr. Lawrence Leong, appearing for the appellants, stated from the Bar that the complainant, Poon, was in fact involved in a charge of considerable gravity. 21. As to Poon, the learned District Judge had found it difficult to believe that he did not know why he should have been made the victim of such a savage attack. This Court shares that difficulty. However, he went on to say
22. Even without having had the advantage of seeing the witnesses, from the record of their evidence supplied and notwithstanding the matters which might have been investigated if the appellants had been represented in the court below, this Court can find no valid reason to disagree with the view expressed by the trial judge and no grounds upon which it could properly or justifiably held that it would be unsafe to affirm the conviction on this charge. 23. The same principles apply to the other charge of wounding against the first appellant. The victim Tsui recognised two of his assailants whom he knew by sight and nickname and one was the first appellant. Although Tsui was cross-examined by the first appellant the learned District Judge "was impressed by Tsui as a witness and was satisfied beyond all reasonable doubt that his identification of the first appellant as his attacker" was "correct". 24. This court, while it fully appreciates that
is satisfied that what is to be considered here is not "evidence of identity based on personal impressions" but evidence of identity based on acquaintance with, and knowledge of, the nicknames of the persons identified. It is for this reason that this Court does not consider that such cases as Reg. v. Cooper 118 N.L.J. and Reg. v. Pett and Bird 1968 C.L.R. are strictly relevant to its considerations, for they were cases in which those who purported to make the identification in fact identified persons whom they had never seen before the incident giving rise to the relevant charge. 25. The learned trial judge could fail to be satisfied as to the guilt of the appellants beyond reasonable doubt only if he was in doubt in each case as to whether the victim, at the instigation of unnamed police officers, maliciously identified as his assailants people whom he knew were not his assailants. There was no room in this case for mistaken identity. 26. The learned trial judge, who had the advantage of seeing and hearing these victims and these appellants, was not left in any such doubt and it was his province to evaluate them. This Court, therefore, can see no valid ground for interfering with these convictions. 27. The assaults were vicious and either assault might, from the nature of the weapons used, have resulted in death. Leave to appeal against sentence out of time is refused and these appeals in their entirety are dismissed. Representation: 1st Appellant in person. L. Leong (Sousae & Co.) for 2nd Appellant. Duffy, C.C. for Crown/Respondent. |