Lau Shing-yui v. The Queen

CACC000280/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 280 OF 1970

-----------------

-----------------

Coram: Mills-Owens J. in Court.

Date of Judgment: 20 July 1970

-----------------

JUDGMENT

-----------------

1. The appellant was charged with common assault on a young woman by hitting or slapping her on her hip from behind. No injury resulted; as she said, it hurt slightly. The appellant was found guilty, but conditionally discharged without a conviction being recorded. He appeals against that finding and order, and Crown counsel concedes that an appeal lies although there was no conviction. Although the matter is comparatively trivial it is of importance to the appellant, a young man of 18 years of age, of previous good character and of a respectable family. The evidence of the young woman complainant was that at about 9.05 p.m. she was ascending the staircase of a building at Matauwai Estate, proceeding from the ground to the first floor, when someone came up behind her and having struck her ran up the staircase in the direction of the next floor above; that person was a boy who was wearing a blue corduroy wind breaker but she could not identify him as she only saw his back. She shouted out when the incident occurred and subsequently two detectives come up to her and asked her what was wrong. She told them what had happened and they ran up the stairs. She went down to the ground floor and waited there. After a short while the detectives came down bringing with them the appellant, who was wearing a blue corduroy windbreaker similar to that worn by the boy who had struck her. But she could not be sure it was he who had struck her as she had only seen her assailant from the rear. She was asked then and there by the detectives if the appellant was the one who had hit her and she had replied that he looked similar but she could not be very sure. The appellant at this time had said "It's none of my business".

2. The two detectives gave evidence of being at the ground floor of the building and seeing the appellant follow the complainant up the staircase. They followed him and heard a scream coming from the corner of the staircase leading to the first floor. They ran up to the complainant who told them what had occurred and gave them a discription of the assailant's clothing. 'Subsequently' they saw the appellant running along a long corridor running the whole length of the block; they chased him and caught him at the ground floor lobby. Asked what he had done earlier the appellant replied: 'Nothing'. They then took him and confronted him with the complainant. One of the detectives said in evidence that the complainant then said "Yes, this is him"; the other detective said that the complainant 'identified' the appellant. The first detective, in cross-examination, said that the complainant did not say that 'the appellant looked quite similar but she could not be very sure'.

3. Obviously, on this evidence, there was a direct conflict between the complainant and the detectives whether the complainant had identified the appellant on the confrontation. Clearly, also, in court she was making no identification. Had the case rested there there would almost certainly have been an acquittal.

4. The appellant then gave sworn evidence to his own defence, giving reasons for going to the building. He said that when he was about to enter the lift on the ground floor he was approached by the detectives and taken to be confronted by the complainant. The complainant looked at him from the front and could not recognise him. She then looked at him from the rear and said judging by the clothes he was wearing he looked similar. Then in cross-examination of the appellant occurred an incident giving rise to some of the grounds of appeal. The appellant was cross-examined as to a previous statement which had not been adduced in evidence as part of the prosecution case. He agreed that in that statement he had written that he had been brought to a girl 'who identified me'. But he went on to say, in evidence, that she had not identified him but only said 'I looked similar when she looked at my back'. Further in cross-examination he said that he understood the difference between the expressions 'being identified' and 'looking similar'. When in his statement he had written that she had identified him he was merely 'being brief'.

5. The learned magistrate stated that in connection with the confrontation scene he considered the evidence of the two detectives to be confirmed by the appellant's written statement that the complainant had identified him. Thus the magistrate resolved the conflict between the testimony of the detectives, on the one hand, and that of the complainant and the appellant on the other hand. The magistrate added that although the complainant's demeanour when giving evidence of the confrontation was different from her demeanour when giving evidence of the actual incident that alone would not have assisted him in resolving the conflict. He accepted the complainant's evidence except as to the confrontation. He rejected the evidence of the appellant except as to his acknowledgement that in his written statement he had said that the complainant had identified him on the confrontation.

6. One of the main grounds of appeal was that cross-examination was wrongly admitted on the written statement, cross-examination being inadmissible of the contents of a confession unless it has been adduced in evidence as part of the prosecution case following a ruling on its voluntariness (vide R. v. Treacy (1944) 2 All E.R. 229.) The principle is, of course, wellknown and has been acted upon in the Hong Kong courts. Mr. Lucas however contended that this was not a case of cross-examination to a confession but to a statement not in itself amounting to a confession. I might have had some difficulty in deciding that, but in the circumstances it is unnecessary for me to do so, for this reason: quite clearly, from the whole tenor of the learned magistrate's findings he preferred the appellant's written statement to his evidence in court; in substance and effect he substituted the earlier statement for the appellant's evidence on the point whether the complainant had identified him on the confrontation; and this notwithstanding the complainant's evidence corroborating the appellant's evidence on the point. In so doing the learned magistrate was clearly wrong. As a matter of law, the evidence of the statement merely impugned, in the sense of throwing doubt upon, the oral evidence of the appellant that the complainant had not identified him; it did not constitute evidence by him as against himself that she had in fact identified him; nor, therefore, was it evidence to controvert the complainant's evidence in court that she had not identified him (R. v. Birch (1924) 18 Cr.App. R. 26; and Phipson (11 Edn.) para.1551). In these circumstances the appeal must be allowed, the finding of guilt set aside, and the order for conditional discharge quashed.

7. For the purposes of record, I should add that Mr. Gunston for the appellant intended to rely also on the case of R. v. Christie (1914) A.C. 545 in regard to the confrontation.

20th July, 1970.

Representation:

Gunston for Appellant.

Lucas (Senior Crown Counsel) for Respondent.

Oral judgment reduced into writing.