The Queen v. Lo Hon-kam and Others

DCCC000603/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CRIMINAL JURISDICTION

CASE NO. 603 OF 1979

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Coram: B.T. Caird, D.J.

Date of Judgment: 12th May, 1980

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REASONS FOR VERDICT

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1. Originally five defendants LO Hon-kam, CHAN Kam-sang, YEUNG Fuk-cheung, MAK Chung-kay and FONG Yiu-wah were charged with wounding with intent contrary to section 17 of the Offences Against the Person Ordinance Cap. 212. The particulars were that these five persons on the 5th day of October, 1979 at Block, 6 Ko Chiu Road Estate 1st floor, Kowloon in this Colony together with other persons unknown unlawfully and maliciously wounded HO Ming-fai with intent to do him grievous bodily harm.

2. The 5th October was the day of the Mid Autumn Festival, otherwise known as the Lantern Festival, and the wounding alleged, occurred at approximately 11.30 at night. The victim HO Ming-fai was aged 15, a paint sprayer by occupation and was nicknamed Sze Ngan Fai (four eyes Fai). The facts were essentially quite simple in that HO Ming-fai was talking to a number of his young friends for about half an hour from 11 p.m. onwards, and was then attacked by a group of young Chinese males, he estimated this group approximated 10 in number. Apparently he was singled out for attention because there was no evidence that anyone else was hurt. His companions made their escape. HO Ming-fai gave evidence that he was chopped with a knife, or knives. He was unable to explain what sort of knives except to say that "it" was about 2 feet long and he was unable to remember whether more than one knife had been used.

3. There were wounds described by Doctor Rosie Yap and Dr. CHUNG Kay-wai. These were:-

Permanent disability has not yet been assessed and I am satisfied that the wounds described by both doctors, and the discernable scars on those portions of the victim's body not covered by clothing that a wounding in terms of section 17 actually occurred.

4. As far as the evidence was concerned this was a motiveless crime. However of course although motive if established could have been of assistance, the Crown does not have to prove motive.

5. Although the victim referred to only one attacker as actually chopping him I am satisfied that all those who rushed towards him, other than the person or persons who actually chopped him were persons aiding and abetting those persons who attacked HO Ming-fai. I am further satisfied that the wounds were inflicted with the intention of causing grievous bodily harm.

6. In short I am satisfied that the Crown has established beyond reasonable doubt all the elements of the offence as charged.

7. However this leaves one outstanding issue, that which has been contested by counsel for the Defence, the question of identity.

8. At the end of the first day of the trial as a result of ceratin matters brought out in cross-examination by Mr. Nguyan, counsel for FONG Yiu-wah (5th accused) the Crown offered no further evidence and I discharged him. Further during the course of the hearing of a voire dire I ruled against the admission of a certain statement allegedly made by MAK Chung-kei (4th accused) and upon the Crown offering no further evidence I discharged him. Accordingly we are now left with three defendants LO Hon-kam, CHAN Kam-sang and YEUNG Fuk-chung.

9. Identification Parades

10. Evidence was adduced by Chief Inspector A.H. Morris who testified that he conducted an identification parade at Kowloon Police Headquarters on the 1st November, 1979. Evidence was given that there were 21 persons on parade comprising 18 actors and the three defendants. I am satisfied that the parade was run properly, and that at that parade the victim HO Ming-fai identified the 2nd and 3rd accused and that further at a confrontation with the 3rd accused held immediately after the parade he then identified a tattoo on the chest of 3rd accused as being the same as a tattoo on the chest of one of those persons who attacked him on the night of the 5th October.

11. However, it was quite clear from his evidence both in chief and during cross-examination that he was nowhere near as positive at the time of the trial, qualifying his evidence in many significant respects.

12. He agreed that the lighting was not good. He stated that he normally had to wear glasses, as his eyesight was defective, and that he was not wearing glasses at the time when he was attacked, having broken them earlier that night when playing. He stated that he was not wearing the glasses at the parade, although chief Inspector Morris was adament that he in fact had been wearing spectacles then. He agreed that he had only an instant in time to view his assailants. He stated that the defendants looked like youths he had seen playing below on the playground of the estate when he had been watching them from above.

13. I turn to the question of the tattoo. This affects only the 3rd accused. He stated that it was an eagle on the chest of the person who attacked him. This when he identified the eagle tattooed on the chest of the 3rd accused on the 1st November. However in evidence he said "It came to me recently he was not tattooed with an eagle. He was tattooed with something else." I have considered the case of R. v. Osborne & Virtue (1973) 1 Q.B. 678(1973) 57 Cr. App. R. 297 and have come to the conclusion in view of this qualification that I can attach no weight whatsoever to the victim identifying the tattoo on the 3rd accused's chest as being the same as the tattoo displayed on the chest of a person who attacked him. Accordingly he is placed in the same position as the 2nd accused as far as eye witness identification is concerned.

14. The victim in cross-examination said that he was chopped from behind, that he looked over his shoulder, that he had held up his hands to protect himself and that he ran away and never looked back while running away.

15. I am fully conscious of the possibility of there being a mistaken eye-witness identification and all the dangers inherent in this kind of evidence. It is wellknown that many notable miscarriages of justice e.g. Slater and Beck resulted from mistaken eye witness testimony. I am fully aware of the decision in R. v. Turnbull and others (1976) 63 Criminal Appeal Reports 19 132 and (1976) 3 All E.R. p.5949. I am also familiar with the statement of Lord Wigery G.J. in R. v. Oakwell (1978) 1 All E.R. 1223 C.A. "R. v. Turnbull is intended primarily to deal with the ghastly risk run in cases of fleeting encounters". This instant case is a prime example of a fleeting encounter and the ghastly risk possible in accepting this form of evidence. Accordingly I hold that there is a I hold that there is no positive value to be attached, or weight to be applied to the evidence of the victim when he identified the 2nd and 3rd accused. The only possible value that can be given to his evidence is that he is identified his assailants as being Chinese male youths, and in these circumstances none of the three accused appearing before me can be eliminated by his evidence.

16. In considering the question of the ingredients of the crime of wounding by those who attacked HO Ming-fai I have applied the standard of proof required by the criminal law, namely proof beyond reasonable doubt.

17. What I am now left with are confessions tendered in evidence by the Crown after a hearing on the voire dire in respect all three defendants, which are entirely uncorroborated by any other evidence.

18. Voire Dire

19. At the conclusion of the hearing of the voire dire I admitted into evidence all three statements and made a brief ruling attached as an addendum to this judgment. The brevity was at the request of counsel for the defendants who felt that he did not want to be inhibited in the presentation of his defence on the general issue should the statements go in, and findings of credibility be made.

20. The Crown tendered all witnesses involved in both the arrests and those who were present at room 406 at Kowloon Police Headquarters, which room is the centre of activities of the Criminal Intelligence Unit responsible for the arrest of all three accused.

21. All three defendants gave evidence and a Mr. KO Wai-man was called by the 3rd accused although his evidence could have had some bearing in respect of the 2nd accused.

22. I was indebted to Mr. Young for his mature and responsible attitude when he came to address me at the conclusion of the evidence, when he stated that in view of what had transpired during cross-examination of this witness, he did not place any reliance on the witness whatsoever. I might add that for myself I had no hesitation in rejecting this witness's evidence.

23. Also Mr. Young stated in his address that the police evidence "hung together" and in response to a question from the bench he agreed that it didn't "hang" so closely together as to give an impression of being concocted.

24. In short I believed the evidence of the police witnesses and from the perusal of the demeanour of each of the three defendants and studying their evidence I had no hesitation in rejecting their evidence. In the event I found that the statements were voluntary, the evidence of the police establishing this beyond reasonable doubt, the evidence of the defendants not even raising a "fanciful" doubt.

25. One aspect upon which I must touch is that of the procedure adopted during the voire dire. There is also attached as another addendum to this judgment a ruling I made at the instance of Mr. Young, opposed by the Crown, but I believe in effect presenting a sensible worthwile saving in time, without any prejudice to any of the accused.

26. The General Issue

27. I now turn to consider the contents of the three confessions. Of course truth of the contents is an entirely different issue from voluntariness. As stated earlier I have to view these confessions as being totally uncorroborated.

28. The position in law as I apprehend it, and as was conceded by Mr. Young, is that a court may convict on the uncorroborated evidence of a confession.

29. I have also considered in the abstract whether it is right and proper to convict upon the uncorroborated evidence of a confession, and have come to the conclusion that it would be proper, provided the court is satisfied beyond reasonable doubt, to the extent that there is not even a "lurking" doubt left in the mind of the trial judge that the contents of the confession are true. This after reminding himself that there are occasions where voluntary confessions are made and the contents are not true. One is familiar with such cases from the books and I personally have experienced three such cases during the course of practice. Two instances where patient diligent police work established the falsity of the confession and a third instance where a defendant was possessed of an unbreakable alibi (he had been in prison) and had confessed because he wanted to "ambarrass the police in court". The Court should also consider the possibility of a defendant in making his confession, telling the police what he thinks they want to hear, using such information as he may have been told by his companions, or other persons prior to arrest, and such information as he may glean from the preamble to a caution written out by the police officer who is interviewing him.

30. I turn now to consider the evidence raised in the general issue and at Mr. Young's request have perused and considered the evidence adduced by the Crown during the voire dire and in particular the cross-examinations conducted by Mr. Young of Crown witnesses. However before doing so I must remind myself of the views of Blackstone writing over 200 years ago when he said "...... they are the weakest and most suspicious of all testimony, ever liable to be obtained by artifice, false hopes, promises of favour or menaces, seldom remembered accurately or reported with true precision and incapable in their nature, of being disproved by other negative evidence." This of course must be contrasted with the nearly contemporaneous dictum in R. v. Warickshall 1783 1 Leach 263 168 E.R. 234

"A free and voluntary confession is deserving of the highest credit because it's presumed to flow from the strongest sense of guilt."

31. Ma Ka-hing, D.C. 11680 said that in the early hours of the 31st day October 1979, he was one of a number of police officers who arrested the 1st accused LO Hon-kam at room 934, Block 10, Ko Chiu Road Estate. He stated that he administered a verbal caution to the Defendant and then took him to Kwun Tong Police Station in order to make a report to the Duty Officer, and thereafter took him to Kowloon Police Headquarters. At Kowloon Police Headquarters at room 406(a) he interviewed the defendant and made a record of that interview. I ruled during the course of evidence, in response to a submission from Mr. Young, that questions and answers adduced after the record of interview should be covered up and not admitted into evidence.

32. After that interview it was alleged that he took the police officers concerned back to Ko Chiu Road where he was to point out where weapons had been left after the attack on HO Ming-fai. This was totally fruitless and there is no aspect of corroboration arising from this visit which could be introduced into the case, as a result of this visit by the police officers and the defendant to the Ko Chiu Road Estate. Later that day at about 5.50 D.C. 11680 and other colleagues, some of them the same as who joined him in the raid at Ko Chiu Road Estate went to room 373, 9th floor, 62, Blue Pool Road, Happy Valley. Premises provided rent free to KO Wai-man an employee of the Jockey Club. The door was opened by KO Wai-man and the police party entered. All persons present were arrested and taken back to Kowloon Police Headquarters for questioning. Of course a report had been made at Happy Valley Police Station before the police party and their captives left Hong Kong to proceed to Kowloon. Included in this party were the 2nd defendant CHAN Kam-sang and YEUNG Fuk-cheung the 3rd defendant.

33. Back at Kowloon Police Headquarters Detective Constable MA Ka-hing D.C. 11684 interviewed CHAN Kam-sang. I might add at this stage that in the course of argument during the hearing of evidence it was indicated to me by counsel for the defence that there would be matters raised as to the proprietory of the police action in arresting all persons present at the Blue Pool Road premises. There was nothing raised in Mr. Young's final address as to this and I take it that he felt he had made his point sufficiently clearly and firmly during the course of earlier argument. I must say that I felt that the police action may have been rather precipitate and "heavy" but in the absence of any evidence, or further submissions from the defence I do not feel inclined to adopt a critical and censorous view.

34. Also back to Kowloon Police Headquarters Detective Constable CHIU Kin-kai 10422 interviewed the 3rd accused YEUNG Fuk-chung where a statement was taken under caution.

35. I don't propose to review the contents of these statements. They are all exhibited and are available for perusal. However I do propose to discuss the arguments adduced by Mr. Young in relation to the statements. Mr. Young's opening submission was, that the position is, or ought to be whether the Crown can safely convict on the statements alone. In making the submission he went on to concede that the Court can as a matter of law convict in absence of corroboration and then said "Is it possible that someone who wants to make a statement makes such statement so as it does not accurately reflect what he did." This expressed as a hypothesis. Counsel also urged upon me that there were no means of my being able to test the accuracy of the statements in this case. This was a submission which appealed to me. He raised many other matters which I have had to consider. He said it was stated by police officers that they denied any conversations (in contrast to Sergeant KWAN Kam-chi) and as his peroration in this regard said, that it was "unlikely" that one person would confess, "More unlikely" that two persons would confess, and "further unlikely" that three persons would confess and urged that this was compounded coincidence when one has three confessions and that this is far more "unlikely" than an individual confession.

36. He also pointed out that in all three instances each defendant picked up a pen and started writing and urged upon me that this was difficult to accept. In conclusion on this head he said that this introduces a "shade of doubt". Mr. Young was even more specific when he went to consider the evidence of Detective Constable MA Ka-hing D.C. 11684 and submitted that he "probably assisted" the defendants in making their statement. Their responses bore the hallmarks of this, albeit it may have been proper, despite the police officers having denied rendering any assistance in compiling the statements.

37. Mr. Young also asked me to compare the statement of the 3rd defendant YEUNG Fuk-cheung with the statement of the 1st defendant LO Hon-kam. The preambles he said were similar. Although there were minor differences Mr. Young submitted these may have been translation differences. One of the police officers concerned had stated in evidence that he had read the morning report. Unfortunately the other police officer was never examined on this aspect and the evidence remained silent although if there is a doubt this must be resolved in favour of the defence.

38. As stated earlier I admitted these statements in evidence and must now concern myself with the questions as to whether

(a) the contents of the statements are true; and

(b) whether I can properly convict on this evidence.

However before doing so I wish to review the evidence of a witness called on behalf of the 1st accused, a Miss CHU Kam-fong. She was an 18 years old garment worker, a friend of the elder sister, LO Mai-fong, of the 1st accused, who gave evidence that she had called at the 1st accused's home at about 2 p.m. or shortly thereafter on the 5th October last, that she conversed with her friend LO Mai-fong, at sometime after 4 p.m. the accused LO Hon-kam returned to the premises, had a bath and then joined in the conversation. During this period they enjoyed watching television and sometime after 7 o'clock they had supper, she stated that her friend LO Mai-fong, her friend's mother the mother of the accused, his eldest sister LO Woon-kan and his second brother all went out for a game of mahjong. The witness being left to look after three children, aged 7, 5 and 4 years respectively. I might add that when a younger sister also went out, according to the witness, she stated that she was going to a movie with her classmates. The witness told me that the defendant left the premises sometime around 8.35 or 8.40 and returned about 9 p.m. carrying candles. These were for the lanterns which were to be used in celebrating the Lantern Festival. We were then told that the defendant retired to his room, turned on his pick-up and radio respectively and played music. He emerged from the room from time to time to speak to the other occupants of the flat including the temporary occupant, the witness Miss Chu. She told us that when the children were put to bed, or rather when she tried to put them to bed at 11 o'clock that she had to stay with the children, nurse them and endeavour to make them sleep. It wasn't until 12 o'clock that they were all asleep, she got up at then, went to the toilet and then retired to bed, that at this stage none of the other occupants of the flat had returned.

39. The witness agreed to questions from the bench that 2 children were carrying lanterns of which only one was illuminated. She also agreed that the sound of the wireless stopped at approximately midnight, about the time she went to the toilet, and further that her attention had been taken up by questions etc. posed by the children between 11.00 p.m. and midnight on the evening of 5th October last. This is a matter which has been urged upon me by both the Crown and the Defence. The Crown stating that even if I were to believe the witness that her evidence does not create an alibi. Mr. Young for the Defence submitted that if there was an attempt to create a false alibi, that it would have gone a long way further than what the witness was prepared to testify to when giving evidence. Mr. Young's argument has a great deal of attraction for me. However it can equally be countered by the proposition that a witness divorced of any family relationship from a defendant, divorced of any close relationship from that defendant, may be prepared to give evidence to assist, but is not prepared to give evidence amounting to a total rebuttal of police evidence. In other words I believe that there are people who prepared to tell half a lie but not a whole lie. I stress that this is in the abstract.

40. So from this position of both parties agreeing in effect that the evidence does amount to a complete alibi I turn to the evidence of the witness herself.

41. The following matters must be considered:

42. I was very conscious in my observation of the witness that at her story about the keys given on Friday the 3rd of April was elaborated upon and amplified on Monday the 6th of April.

43. This was a key witness, absolutely essential in the sense that she only had to raise a lurking doubt. In fact I suspect in the mind of some others a fanciful doubt might be enough. I observed her demeanour carefully. I thought she was pert, rehersed and totally unreliable. Intrinsically I could not accept that on Mid-Autumn Festival night a friend of the family is left with three children of the ages discussed earlier, and that they celebrated their own Lantern Festival inside private premises with their parents, and grandmother absent. That as was pointed out in cross-examination by Miss Cheung for the Crown (and accepted by the witness) it is accepted custom and practice that people enjoying the Mid-Autumn Festival should take advantage of the full moon, the festival being divised to coincide with a full moon.

44. In short taking account the intrinsic improbabilities of the tale unfolded before me, the matters raised in cross-examination by Miss Cheung and not satisfactorily answered by the witness and my view of the witness' demeanour, I have no hesitation whatsoever in rejecting her evidence. If one were to speculate I think that she may be a decent normally responsible girl who has been embroiled in a situation where her loyalties had become divided.

45. I have considered the statements, re-read the submissions of counsel for the Defence, reminded myself of the ghastly risk and horrendous consequences of a wrong decision. I have actively searched for any lurking doubt, wanting to find such a doubt, conscious that in finding any such doubt this represents the easy way to resolve the question. However I have been satisfied beyond reasonable doubt that the three defendants are guilty, and found them guilty as charged.

46. I address myself now to counsel for the Crown and for the Prosecution. I have of course heard Mr. Young's comments about the cross-examination of Miss Cheung in respect of the defendants. All three gave evidence on the voire dire, a witness who gave evidence on behalf of the defence on the voire dire and one witness only who was called on behalf of the first defendant. I endorse everything that Mr. Young has said to me in Miss Cheung's presence and can only add that I have been fortunate indeed to have heard the evidence brought before me explored, probed confronted and in total terms properly dealt with.

47. As far as Mr. Young is concerned he has made my task a lot easier his concessions have been totally proper and indeed have enhanced the submissions made thereafter. He has earned my respect and admiration for his totally ethical defence of the three unfortunates with whom we have had to deal.

Representation:

Sindy CHOW (Stenographer)

K.D.C.

18.8.80