The Queen v. Ching Shing Yum

CACC000332/1990

HEADNOTE

Applicant faced charges of wounding with intent, inflicting grievous bodily harm and wounding. He gave evidence himself and called two alibi witnesses. One of the alibi witnesses had made a statement to the police but the Crown did not seek to suggest that there were any material discrepancies between his evidence and the statement and did not cross-examine him thereon. In re-examination, he stated that in his statement he had told the police what he had said in court. During address by crown counsel, the trial judge requested the Crown to produce the statement and over objection by the defence counsel, marked it as an exhibit. The trial judge then made material use of the statement in assessing the credibility of the witness and the defendant. The Court of Appeal was satisfied that the statement was never properly before the court and the trial judge was not entitled to make use of it as she did and the convictions were unsafe and unsatisfactory and must be quashed.

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Coram: Hon. Silke, V.-P., Power and Penlington, JJ.A.

Date of Hearing: 13 August 1991

Date of Judgment: 13 August 1991

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JUDGMENT

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Power, J.A.:

1. The applicant faced three charges - one of wounding with intent, one of inflicting grievous bodily harm and one of wounding. The 1st charge alleged that on 3rd December 1989 at 54 Apleichau Main Street, ground floor, Hong Kong, he did unlawfully and maliciously wounded CHENG Chu-leung with intent to cause him grievous bodily harm. The 2nd charge alleged that on the same date and at same place he unlawfully and maliciously inflicted grievous bodily harm upon CHENG So-mui and the 3rd charge alleged that on the same date and at the same place he did unlawfully and maliciously wounded CHENG Chu-leung. He was, after trial in the District Court before Her Honour Judge Chua, found guilty on each of those charges and sentenced to terms of imprisonment of four and a half years, three years and three years. All sentences were ordered to be served, concurrently. He appeals against those convictions.

2. The alleged victims were members of the Cheng family who conducted a small general store at 54 Apleichau Main Street. On the evening of 3rd December 1989, according to their evidence, a group of youths entered the store and smashed beer bottles and, when leaving the store, tipped over fruit displayed at the entrance to it. The applicant and others were said to have then rushed in and the applicant was said to have attacked one of the members of the family, the victim in the 1st charge, with a stool injuring him. A female member of the family, the victim in the 2nd charge who was the sister of victim 1, went to help him and was also injured. It was the evidence that shortly thereafter the applicant returned with two others and that the applicant was armed with two knives and was shouting "Chop you to death" and that he went forward and chopped victim 1. This attack was the subject of the 3rd charge. The family members then sought to defend themselves with stools and when one shouted that the police were coming the attackers fled. Later on that evening when the victims were with police officers at Queen Mary Hospital, one of the family members saw the applicant, told the accompanying police officers and they arrested him.

3. The applicant gave evidence denying any involvement in the first incident and saying that, as he was passing the store with a friend, he saw youths emerging therefrom followed by victim 1 and his brother, and that both of them were armed with knives. He said that victim 1 then attacked him, and that, after the first attack, he ran but was chased and attacked again. The defence called the friend, DW2, who had been accompanying the applicant. The only other evidence came from a waiter, DW1, who worked at the Lee Kong Fish Village, a nearby restaurant. He gave evidence supporting the version put forward by the other two defence witnesses.

4. Mr. Marash, who appears in this court for the applicant, drafted Perfected Grounds of Appeal containing eight grounds. We indicated that we first wished to hear argument only upon Ground 6 which reads as follows:

"6.     The learned trial judge erred in law in demanding the production of the witness statement DW2, made on 7th December 1989, after the close of the defence case and during the prosecutor's closing address over protests by defence counsel. There was no cross-examination on this document and there was no legal basis for its admission into evidence. The learned trial judge then used this document to discredit DW2's testimony, which had been consistent with the two other defence witnesses. "

The statement was admitted after the following exchange during the closing address of Crown Counsel.

This passage is clearly corrupt but there is no issue that the trial judge on her own volition called for the production of and then marked the statement as Prosecution Exhibit 17. This, despite the fact that the statement was not accompanied by a certified translation and had not, up until then, been produced by either prosecution or defence.

5. It had been put to Dw2 during cross-examination that he and the applicant had with others concocted the story this he was to tell the court. He denied this. When giving evidence, he stated initially that he had given his version of events to the police at Queen Mary Hospital on 3rd December 1989, the evening of the incident. However, he later said in evidence that he gave his version to the police on 7th December. There was no suggestion put to him that his evidence given in court was in any way different from that version. He was not shown his statement while giving evidence nor was he cross-examined upon the contents of it. In re-examination Mr. Plowman asked him if he had given a  witness statement on 7th December 1989 and he replied that he had and that in it he had told the police what he had said in court. At the close of evidence the matter rested there.

6. Mr. Bailey, who appears today for the Crown, concedes that the trial judge erred in law in admitting the statement.  There is then no issue in that regard.  The material question for our consideration is whether the statement was sect in anyway which was prejudicial to the applicant. The Crown did not and does not seek to suggest that there were any material discrepancies between DW2's evidence and the statement. The trial judge dealt with his evidence in the following way:

"DW2 supported the defendant inmost aspects of his story, including who had dinner with them that night. Both of them in Court had said there were three of them. In his statement P17 which he gave to the police on the 7th of December 1989 while the defendant was still in custody, he said there were four of them. He departed from the defendant's description of the first attack in that he said PW1 slashed the defendant several times with three or four blows. However although me was standing reasonably close to the defendant he said he did not know whether these blows landed on the defendant because it all happened so quickly. In Court he said the defendant did not at this state exchange blows - the defendant had not defended himself.  He admitted that what he told the police in hospital was that there was an exchange of blows. He described the second incident in which Pwl chopped the defendant several times in fact three or four times but had not noticed which part of his body was chopped. He demonstrated the defendant had used both hands to protect himself. (Unlike the defendant these movements by both hands did not further up beyond stomach level In this statement P9 [this clearly is wrong, it should be P17] he described PW1 as carrying a chopper and a knife. He explained that, although he had waited at hospital, the police did not take a statement from him so he left after waiting for sometime. He only went to the police station on 7th of December as he did not have time to go before that."

7. Mr. Marash submits that the trial judge was wrong when she said that both the applicant and DW2 had said that three of them had had dinner together. He has demonstrated from an examination of the record that both had said that four of them had had dinner. The statement is consistent with their evidence as it states that four of them had dinner. Mr. Marash submits that the statement which should never have been before the trial judge at all was used to contradict the evidence not only of DW2 but also of the applicant when, in fact, it was not in any way at variance with their evidence. Indeed, if the statement had been before the court it would have shown consistency in the evidence of DW2.

8. Mr. Marash goes on to point to the words which read as follows:

"In his statement (P17) he described PW1 as carrying a chopper and a knife."

He says, and we agree, that the trial judge is again contrasting the statement with the evidence in order to demonstrate an inconsistency between them. It is true that in his evidence DW2 had said that victim 1 (PWl) was carrying 2 knives. It is also correct that in his statement, however, he had said that PW1 was holding a chopper and a knife. But it must be noted that elsewhere in that statement he said that PW1 was holding knives. Even if the statement had been before the court, and it was not, this discrepancy was in our view one of little real significance. We are satisfied that the trial judge did form the view that the evidence of DW2 and to an extent of the applicant was materially contradicted by the statement. Had the matter rested there we would have had considerable doubt as to the propriety of the convictions.

9. The matter did not however rest there. Having reviewed the evidence of the defence witnesses, the trial judge then said:

We find difficulty in understanding this passage. Mr. Bailey urges us to take the view that the two discrepancies between the statement aria the evidence to which the trial judge made reference are matters of no real moment and that she made it clear that she was rejecting the evidence of DW2 because he was a shifty and evasive witness. He submits that the statement is only mentioned in order to make it clear that despite the consistency between the evidence of the defendant and that of the statement she nonetheless rejects the defence evidence and that no use was made of the statement when rejecting the defence evidence. Having carefully examined the passage, we find ourselves unable to be satisfied that the trial judge was not there indicating a use of the statement which she was satisfied was suspect to discredit the evidence of the applicant. We cannot in the circumstances be persuaded that the conviction was either safe or satisfactory and the appeal must therefore be allowed.

Silke, V.-P.:

10. I respectfully agreed with the judgment just delivered by my Lord Power. The statement of 7th December, marked as Exh. P17, of Lok DW2 should never have been before the trial judge. Lok was not cross-examined on its contents, he had not identified it as his, he never having been shown it, and there was no certified translation.

11. With the greatest respect to Judge Chua, trial judges cannot in the course of a final address by the Crown, or for that matter the defence, call for and enter into evidence documentary matters in respect of which no evidence has been led as to their contents in either examination-in-chief or cross-examination of a witness.

12. It is clear from the contents of the Reasons for Verdict that this inadmissible evidence was relied on. Mr. Bailey properly concedes that the trial judge in reaching her conclusions was in some way influenced by it. I, too, would allow the appeal.

13. I, however, would wish to add this. In relation to the document before us entitled "perfected Grounds of Appeal", it is difficult to disinter from its 29 pages what in fact were the so-called "Perfected Grounds". The first half hour of the hearing today was spent in that exercise. Perfected grounds should comply with para.4 of the Practice Direction (Criminal Appeals) at pp. 10.7 to 10.9 of the revised edition of the Practice Directions of the Supreme Court. They should not contain submissions on law or submissions on fact which properly should appear in the skeleton argument. The purpose of perfected grounds is to put before the court for its assistance, and indeed for the assistance of the parties to the application, concisely and in short complex, the issue which lie for consideration. Their importance is not only to the concentrating of the mind of the drafter on the matters he wishes to raise but, by making the issues plain, directing the mind of the court to relevant matters and, carefully drawn, they can be most helpful in the understanding of applications and in the expedition of the hearing. With respect to the drafter here the document we have had before us does none of these things.

14. The order of the court will be that leave to appeal is granted, the application treated as the hearing of the appeal, the appeal allowed convictions squashed and sentences set aside.

Penlington, J. A.:

15. I also agree that this appeal should be allowed.

Representation:

Mr. S. R. Bailey (Crown Prosecutor) for the Respondent.

Mr. Daniel Marash (instructed by Messrs. Chung & Kwan) for the Applicant.