Sin Wai-chuen and Another v. The Queen

CACC000312/1981

Headnote

Whole of statement used for purpose of contradicting a witness should not normally be before jury.

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Coram: McMullin V.-P., Li and Silke JJ.A.

Date: 11 March 1982

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J U D G M E N T

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Silke J.A. :

1. We dismissed the appeals by the two Appellants against their convictions on both counts on the 5th February and stated we would give our reasons later. This we now do.

2. On the 17th December 1979, in the early hours of the morning, there was an attack upon a party of persons sitting at a table in the Fu Lam Moon Restaurant, 65 Granville Road, Tsim Sha Tsui.

3. Chan Wing Wah received seventeen stab wounds and died on the spot, Wong Lung received four stab wounds, was seriously injured and rendered unconscious. One Li Shun Keung (PW1) had gone to the toilet immediately before the attack and upon his return, it was his evidence, saw the attack but was not himself injured.

4. It was the case for the Crown that the three men, Chan - known as "Tat Chai" - Wong and Li had been on a tour of the night spots of Tsim Sha Tsui, at times in the company of others. A considerable amount of liquor had been consumed by them.

5. They finished up at Fu Lam Moon Restaurant to which "Tat Chai" had led them, he wishing to have a conversation with the owner, Tam Man. On their occupying a table near the door they were joined by one "Ko Lo Hung". The wife of Tam Man, having been asked if he were available, said he was not. Later Tam Man did arrive and a fairly aggressive conversation took place between himself and "Tat Chai". It appeared however to have been settled amicably but a party of twenty odd persons had by then entered the restaurant and had sat at tables adjoining the one where the conversation was taking place.

6. Then came the attack. The sole evidence, and this was clearly before the jury, in relation to the second Appellant, Lui Siu Hoi, was the identification of him as the main attacker of "Tat Chai" by Li and Wong (PW6).

7. There was also an identification of the first Appellant, Sin Wai Chuen, by Wong as a participant in the attack and this was coupled with other evidence which, if believed, clearly implicated him in the crime.

8. The two Appellants were tried with and convicted of the murder of "Tat Chai" and the wounding with intent of Wong Lung.

9. The graveman of the complaint of Mr. Litton, with him Mr. Cheng Huan, who appeared for both Appellants, is that while identification generally was clearly a jury question and was left to the jury another and vital jury question - the possibility of collusion as between Li and Wong in their identification, in particular that of the second Appellant - was not left to the jury in that the Judge did not explicitly direct them on this point. This impinges upon both Appellants.

10. On the 17th December Li was interviewed by the police. At that time he was a vital witness as "Tat Chai" was dead and Wong Lung was in a critical condition. Li in his statement to the police stated he could only recognise, out the group who attacked "Tat Chai" and Wong, one person who pointed a bottle at him. He then gave a detailed description of that person and finished by saying "others unknown. I cannot recognise the other persons".

11. Wong Lung recovered. On the 29th December 1979 he made a statement to the police in the course of which he said he "only knew Tam Man and Ko Lo Hung" of the attacking group. On the 5th April 1980, about three and a half months after the incident, he attended an identification parade where he made an identification of the first Appellant - a person he said he had seen once before. He also identified one "Ma Lai Chai" who was not charged with any offence.

12. On the 27th June 1980 Wong attended another identification parade where he made an identification of the second Appellant.

13. Li attended neither of these parades.

14. On the 30th June 1980 Li made a fresh statement to the police stating in the preamble :

"At around noon on the 29-6-80 I received notice from my friend C/M Wong Lung telling me that personnel of Kowloon Police Headquarters were looking for me, to investigate the incident involving the killing (SIC) of my friends C/M Chan Wing Wah also known as Tat Chai, and Wong Lung, at the Fu Lam Moon Restaurant, Granville Road Tsim Sha Tsui (in) December, last year. So, today, I came for enquiries."

15. Wong Lung denied that he had informed Li to attend upon the police. There was a reference by Li to an intermediary Mr. Ng.

16. Li then attended an identification parade on the 3rd July 1980 where he made an identification of the second Appellant as being the man "who jumped on the table and attacked Tat Chai". He attended a further identification parade on that day making an identification of an actor.

17. Li was cross-examined on the differences as between his statement of the 17th December, his 30th June statement and the evidence he gave in Court - he had effectively placed himself in three different positions in the restaurant. Further, and more particularly, he was cross-examined on his stated inability to identify the attackers and the circumstances of his subsequent identification of the second Appellant.

18. He explained that which he acknowledged to be his lies to the police in the 17th December statement as emanating from his lack of interest in cooperating with the police at that time, his being in a confused state having seen one of his friends killed and his desire for personal revenge, going even as far as killing, the attackers. After he became aware of the arrest of the second Appellant, and he read his name in a newspaper before he received the "notification" from Wong Lung, he said he saw no point in pursuing a personal vendetta and he then told the truth.

19. Mr. Litton presents his collusion point on the basis that, first, Li was equivocal to say the least as to how he came to make his 30th June statement, second, his knowledge of the name of the second Appellant prior to his attendance at the 3rd July identification parade, third, his denial of any actual contact with Wong Lung from the date of the incident until the committal proceedings despite their friendship, fourth, the triad overlay of the whole matter, fifth, the possibility that Li was still in the toilet when the incident happened and therefore saw nothing, sixth, the possibility that he knew Wong Lung had identified the second Appellant and, stemming from that, the possibility of his desire for revenge inducing him to falsely identify the second Appellant and last his misidentification of an actor.

20. On the question of knowing the name of the second Appellant prior to the identification parade of the 3rd July it was put to Li in cross-examination that he had told the committing Magistrate that the first time he ever heard the name "Chi Sin Kai" was on the day upon which he gave evidence in the committal proceedings. "Chi Sin Kai" was another name for the second Appellant.

21. Li said his evidence of that was incorrect.

22. The following passage then ensued :-

"Q.    If you were not certain when you first heard the name Chi Sin Kai why didn't you tell the Court that `I am not certain'? Why were you so positive?

A.    I am not clear myself.

Q.    You are indifferent to what you tell the Court, is that the reason?

A.    No.

Q.    Careless?

A.    This is not very important. Whether I knew the name or not is not very     important.

Q.    I suggest to you it is very important because if you knew Chi Sin Kai     before you could have obtained a description of him before you identified him in the identification parade?

A.    I agree with you."

23. The jury had that part of the deposition before them including the question : "When did you come to know he was Chi Sin Kai? A. Today."

24. In re-examination Mr. Pritchard, who appeared for the Crown both in the Court below and on this Appeal, put to Li that what he was saying was "that you first came to know that Chi Sin Kai was the same person as Lui Siu Hoi (the second Appellant) on that day on which you were speaking?"

25. The answer was in the affirmative.

26. The jury also had before them the statements made by Li on the 17th December 1979 and the 30th June 1980.

27. The trial judge, having given a full Turnbull warning to the jury, dealt in detail at several places in the course of his summing-up with that which had transpired as regards Li and with the identification evidence and its shortcomings. He made an early mention of the possibility that Li was in the lavatory by saying -

"Of course when the attack occurred, Mr. Li may have been in the lavatory. You have heard evidence about that. It is a matter which you have got to decide. I will come back to that later on."

He did.

28. Mr. Litton accepts that all these matters were for the consideration of the jury but he says so was the collusion point and they were never explicitly directed upon this. He says the direction which was given was nothing like sufficient. What the judge said was this :-

"    In assessing the reliability of the identification evidence you will remember that the 1st defendant's identification of (by) Wong Lung was not made until the 5th April 1980, three and one half months after the event; and the 2nd defendant's on the 27th June 1980, six months after the event.

Mr. Li's evidence - and here again members of the jury you will have to assess this evidence - was a matter of a few days later, on the 3rd July, that he identified the 2nd defendant.

Remember the evidence given by Mr. Wong Lung in respect of which he said he never told Mr. Li that he had to attend the identification parade, as was stated by Mr. Li in his statement to the police of the 30th June 1980. I think that evidence is fully fresh in your memory but you will remember what he said in that statement about being told to attend that identification parade and then there was a reference to a Mr. Ng Yuen Tung who knew both him and Mr. Wong Lung, telling him to go to the identification parade. What you make of that evidence, members of the jury, is a matter for you."

29. It is true that the Judge did not then go on to pose to the jury some such question as "Could it be that Mr. Wong Lung and Mr. Li colluded in the identifications they made?"

30. But, viewing the summing-up overall and bearing in mind that the jury were fully apprised of the disparities and equivocations in the evidence of the two main witnesses, especially that of Mr. Li, we do not think there to have been a fundamental non direction in the sense Mr. Litton would have us find.

31. That ground of appeal fails.

32. Mr. Litton further complains, and this in relation to the first Appellant for he called alibi witnesses - that the Judge was wrong to use the word "uncontradicted" when he made reference to the identification evidence in the following passage in the summing-up :-

"I repeat the fact that neither defendant went into the witness box should result in you drawing any adverse inference so far as identification evidence is concerned. Their absence from the witness box does not prove anything at all, but in assessing the identification evidence you may take into consideration the fact that it is uncontradicted. That is as far as you can go. There is purely identification evidence from the Crown; there is nothing to contradict the evidence. At the end of the day, members of the jury, you really have to decide what you think of the quality of the identification evidence, that is the important factor.

On the other hand, of course, the witnesses could have been genuinely mistaken with regard to their identification of one or both of these defendants." (emphasis supplied)

33. The Judge then went on immediately to deal with that which turned out to be the somewhat unfortunate evidence of the two alibi witnesses called on behalf of the first Appellant and having done so gave a full and proper direction on alibi evidence concluding :-

"Now if you decide that there is truth in the alibi, that the alibi is true you will of course acquit the 1st defendant."

and

"As I say if you are not sure, then the Crown has not discharged the onus of proof placed upon them."

34. In the concluding stages of his summing-up the Judge had this to say :-

"Again, I repeat, the fact that the 1st defendant did not go into the witness box, you should not draw any adverse inference against him. Only insofar as the identification evidence is concerned, that evidence is uncontradicted."

35. We do not think that the jury could have been misled by the use of the word "uncontradicted" - it did not take away from the first Appellant his defence of alibi - and that which the Judge was saying, in our view, was simply that the identification evidence was not contradicted by personal evidence given by the Appellant. That was a comment he was entitled to make.

36. That ground also fails.

37. The final ground argued before us was twofold : first of all that the whole of the depositions and statements used in the course of the trial to cross-examine the witnesses Li and Wong should not have been admitted in full as exhibits, only those portions, says Mr. Litton, which were actually put to the witness should have been before the jury.

38. And second, and more important, that when the Judge, in making reference to Wong Lung's deposition in the committal proceedings used for the purpose of cross-examination in the course of the trial, said :-

"There is this copy before you and when you retire to consider your verdict that evidence will be before you." (emphasis supplied)

he was in effect wrongfully admitting evidence.

39. We agree that it is preferable that the whole of a deposition be not placed before a jury when only parts of that deposition have been referred to in evidence. There is a danger that the jury might consider its contents supportive of the oral evidence of the witness when the document is there for a specific purpose only, that of contradicting the witness, and is itself not evidence in the trial.

40. That having been said we do not think any great harm to have been done here by the placing before the jury of the documents complained of.

41. The second point is, as we have said of graver moment, for the wrongful admission of evidence could, unless we are satisfied that there is no miscarriage of justice, vitiate a conviction.

42. The use of the word "evidence" by the Judge in the passage above quoted was clearly a slip of the tongue. He had, somewhat later on in his summing-up in relation to other statements, made it quite clear to the jury that they did not constitute evidence and that the jury was concerned with what a witness said in the witness box and not "that which he had said before". He went on -

"What it amounts to is it shows inconsistency, if you accept the evidence that it is inconsistent."

We do not think that which the Judge said in the passage criticised to amount to the wrongful admission of evidence nor do we think there to have been any miscarriage of justice.

Representation:

H. Litton Esq., Q.C. and Cheng Huan Esq. (Poon & Sum) for both Appellants.

R. Pritchard Esq. for Crown/Respondent.