Yung Shing Alias Pau Toi v. The Queen

Case No.CACC 254/1971

Court

Court of Appeal

Date27 May 1971

Judge—

Case Document

100%Judiciary

CACC000254/1971

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 254 OF 1971

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BETWEEN	Yung Shing alias Pau Toi	Appellant
	and
	The Queen	Respondent

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Coram: Mills-Owens J.

Date of Judgment: 27 May 1971

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JUDGMENT

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1. The appellant appeals against a conviction for wounding. The case for the prosecution, in the ultimate analysis, turns entirely on identification of the appellant by the victim. They were known to each prior to the incident. The victim gave evidence to the effect that late one night, i.e. at 10.50 p.m. on the 10th January 1971, he was alone near his home at the Tai Hang Tung Resettlement Estate, when he was surrounded by a number of persons, one of whom was the appellant who chopped him with a knife. Initially he said that the knife was a fruit knife; later, on being shown a knife, he said he could not see clearly what he was chopped with. Upon cross-examination it appeared that he was saying that several persons chopped him. He expressed himself as positive that the appellant was one of them and was the first to attack him. He agreed that he only caught a glimpse of the appellant - it was dark and he could not say what the appellant was wearing. A long time ago, he said, the appellant had kicked him and they had ceased to talk to each other, but he bore no grudge; there was no animosity between them but they had not spoken to each other for several years, that is to say as from the time when the appellant kicked him.

2. There is no doubt that the victim was attacked that night and several wounds inflicted. This was confirmed by the medical evidence. He was fully conscious on being taken to hospital, where he was given a blood transfusion, his wounds sutured, and remained under treatment for 9 days.

3. The appellant was not arrested until the 13th February; there was no explanation as to the delay although the victim who lived at Block 9 knew that the appellant lived at Block 11 of the same Estate. The arresting officer, a detective police constable, gave evidence to the effect that the appellant, shortly after the arrest, led him (the D.P.C.) to a certain place where as a result of something said to him by the appellant he seized a knife. There is no indication in the evidence as to precisely what was said by the appellant to the D.P.C. about the knife. It is clear that this knife was not identified as connected with the wounding, whether by the victim or anyone else.

4. The defence was a denial of the offence coupled with an alibi. The appellant said that from 7 p.m. until after midnight on the 10th January 1971 he was at a billiard room, playing billiards. He agreed with the victim that they were known to each other but had not spoken to each other for years. As to the knife produced by the D.P.C., the truth was, according to the appellant, that he had been forced to pick one out of a number produced to him in the police station. When giving evidence as to his alibi, the appellant said that he 'did not know the people there but the proprietor of the place should know me - I often go there - I do not know his name but he recognises me and I recognise him.' He then went on to deny the offence. There was a little cross-examination as to when he usually went to play billiards, but he was not asked either in chief by his counsel or in cross-examination, with whom he was playing billiards that night.

5. The hearing was then adjourned for the appearance of a defence witness; the learned Magistrate indicated, in his findings, that this was the proprietor of the billiard room. On the resumption of the trial it was stated that the witness refused to attend and a subpoena was issued, the trial being again adjourned. On the further resumption, it was stated that the subpoena had not been served but the defence now called two witnesses to the alibi. These two persons then gave evidence that they were playing with the appellant on the night in question. The appellant had said that he played 'from 7 p.m. to sometime after midnight when the billiard room closed'. The first defence witness said he met the appellant that night about 7 o'clock and went to have a meal with him until at about 8 o'clock when they went to play billiards, and that the second defence witness joined them in the game sometime after 9 p.m. The three of them played together 'until about 11 p.m.' - he was sure of that time. This was his evidence in chief. The second defence witness, also in chief, said that he played with the others from sometime after 9 p.m. until about 11 p.m. Each of the two defence witnesses was asked why they remembered the date so well and both replied that it was the occasion of the first defence witness's birthday. Both were cross-examined to the effect that the appellant had said that it was sometime after 12 midnight when they ceased playing and both positively and unhesitatingly denied that. The learned Magistrate noted this and went on to say -

	"	I also regarded it as significant that it was not until after the case had been adjourned and it was not found possible to serve a witness summons on the alleged proprietor of the billiard room that the two defence witnesses, who had not been mentioned at all by the defendant in his evidence in chief, were produced.
		I have no hesitation in saying I did not believe the defendant nor did I believe either of his witnesses."

6. Mr. Robert Tang, who argued the case for the appellant with considerable ability, questioned this passage, pointing out that the defence witnesses had not hesitated to flatly contradict the appellant as to the time they left the billiard room, and pointing out too the apparent cogency of their evidence as it appears on the record; if they were perjured witnesses it was highly unlikely that they would not have been ready with evidence tallying with that of the appellant on the most vital point - when did they leave the billiard room. I am bound to say that this impresses me.

7. The learned Magistrate referred to the evidence concerning the knife produced by the detective police constable in these terms -

	"	This witness testified that he arrested the defendant at about 12.30 p.m. on 13th February 1971 at 3rd floor Block 11 Tai Hang Tung Resettlement Estate. He stated that later that day the defendant took him to Far Por street, Yau Yat Chuen near the end of which street the witness recovered a knife. (Exhibit P.3)
		This was contested by Mr. Fok in cross-examination and it was suggested that the defendant was shown several knives and weapons at the Police Station; that he was threatened with assault and asked to pick out a weapon and because of fear he picked out P.3 - all of which was denied by the witness."

Mr. Tang made the point that no conclusion was reached in this passage, or elsewhere - except the general disbelief of the appellant and his witnesses; the Magistrate did not express himself as accepting the evidence of the constable. Possibly, in my view, this was deliberately so for the reason, advanced by Mr. Tang, that the evidence given by this witness was highly prejudicial to the appellant in that there was no cogent evidence whatsoever that the knife spoken to by the constable was connected with the charge. I am bound to agree that evidence in such terms should not have been tendered; the constable was the last witness called by the prosecution and it was clear before he gave evidence that unless he could give evidence clearly connecting the knife with both the appellant and the offence it would not only be irrelevant but be simply prejudicial.

8. In all the circumstances the appeal must be allowed, the conviction quashed and the appellant discharged.

(Mills-Owens J.)

Representation:

Robert Tang (instructed by John Ip & Co.) for appellant.

Eric Li, C.C. for Crown/respondent.