R. v. Cheng Chi Wai

CACC000368/1992

IN THE COURT OF APPEAL

1992, No. 368
(Criminal)

____________

____________

Coram: Fuad, V.-P., Penlington & Macdougall, JJ.A.

Date of hearing: 21 January 1993

Date of judgment: 21 January 1993

_______________

J U D G M E N T

_______________

Fuad, V.-P. (giving the judgment of the court) :

1. The applicant, Cheng Chi Wai, was convicted on 14th August 1992 in the District Court by Judge Chua on three charges of wounding with intent contrary to section 17 of the Offences against the Person Ordinance. On 28th August the applicant was ordered to be detained in a Detention Centre. From that conviction he seeks leave to appeal to this court.

2. The Crown led evidence to show that the three victims mentioned in the three charges had gone to the Green Lake Restaurant in Wanchai at about 1.20 a.m. on 19th March 1991 to have discussions with a man called So to settle a dispute about the repossession of a flat in Electric Road. There had been previous discussions about the matter and it was intended that the dialogue should continue.

3. When they arrived, they were led to a table at the back of the restaurant. They sat next to each other facing So and four of the men who were with him. It was the prosecution's case that shortly afterwards the three men were all attacked by a group of about ten men each of whom was armed with a beef knife. These men rushed at the three victims from the direction of the entrance to the restaurant. It was clearly a violent attack and all three of the victims received multiple chop wounds.

4. The judge concluded that the nature of attack, and the injuries suffered by the three men, established beyond reasonable doubt that the three offences were committed as part of a concerted attack on the three men and that whoever was guilty of taking part in any of the individual assaults could properly be convicted on all three charges. There is no complaint about this finding.

5. The only disputed issue to be resolved by the trial court in this case was whether the applicant had been correctly identified as one of the assailants. The Crown called four witnesses, the three victims and a waiter. The only person who purported to identify the applicant was Tse Ah Ming who was named as the victim in the second charge. The case for the Crown was founded on his evidence (he was the first prosecution witness) and the fact that fingerprints of the applicant were on a glass found on table 125 in the restaurant by the police less than an hour after the incident. This was not the table at which So and his companions had been sitting. The prosecution also relied on what was undoubtedly a lie contained in the statement the applicant made under caution to the police.

6. The applicant elected not to give evidence and called no witnesses. He was arrested on 20th November 1991, that is to say about eight months after the incident. On 25th November he participated in an identification parade and was identified by the witness Tse Ah Ming as one of his assailants. The judge noted that there was no evidence as to whether or not the other two victims of the assaults had been asked to view any identification parade in which the applicant himself was present. Certainly, neither of the two other victims, who were the second and third prosecution witnesses, purported to identify the applicant as one of the assailants when giving evidence in court.

7. Tse Ah Ming was seriously injured . He suffered about nine chop wounds according to the medical report produced in evidence. There was a 20cm cut wound over his left temporal region and a 5cm cut wound over the left chest wall. The doctor noted cut wounds on both his legs and both his arms. Fortunately the cut wound on the head did not cause a fracture.

8. We return to the cautioned statement made by the applicant. The statement showed that on the day of his arrest he was interviewed by the police and given the usual caution. He was told the nature of the allegations against him and he said this:

"I, at about 1.15 a.m. on 19.3.1991, did not go to the Green Lake Seafood Restaurant at No. 24-30, Percival Street, Wanchai. I cannot remember where I was at the time because the time was too long ago."

In the light of the discovery of the applicant's fingerprints on the glass, there is no dispute that the first sentence was a lie.

9. The judge obviously took great care over this case. She showed in her careful Reasons for Verdict that she was well aware of the need for extreme care before relying on the visual identification in a case of this kind. She said, quite rightly, that this was a classic Turnbull situation and gave herself a direction that would have been appropriate had she been sitting with a jury. She expressed herself to have been impressed by the demeanour of Tse Ah Ming when he gave his evidence. She noted that he had given his evidence without hesitation and in a confident manner. This convinced her that the evidence came from "a true recollection" and was reliable.

10. The judge went on to say that she had warned herself that it would be dangerous to convict on this evidence without corroboration. She then turned to consider the effect of the evidence regarding the applicant's fingerprints on the glass found on one of the tables. She rightly held that in the circumstances the fingerprint evidence could be regarded as confirming the correctness of the identification, while pointing out that the fact that the applicant had lied in his police statement could not be taken as corroboration of the identification evidence. The judge also made it clear that she fully appreciated that a person might tell lies for reasons other than a consciousness of guilt.

11. Mr. Macrae, who did not appear in the court below, took us through the evidence of Tse Ah Ming and contended that the evidence of his examination in chief, when read together with the opening parts of his cross-examination by counsel then appearing for the applicant, gave a very different picture to that given by a close scrutiny of the evidence under the cross-examination as it continued. The examination in chief gave a picture of a witness who had several "tens of seconds" opportunity, in good light, to recognise a man who was facing him. He maintained that the applicant's facial appearance was "deeply in his mind", and in the first part of his cross-examination, he said that his assailant was facing him, and he was able to describe what he was wearing at the time. He was also able to say whether his assailant had been wearing spectacles and in which hand he was holding the knife. He was quite sure about these matters.

12. Mr. Macrae pointed to a significant change in the thrust of Tse's evidence which had occurred after the short adjournment as the cross-examination continued. Counsel had pointed out to the witness that he had not described the applicant to the police and he accepted that was so. Then he told the court that he had described the men who were sitting at the table with So and went on to say that he had also described the defendant to the police, adding:

"... but because I was not sure of his age and facial appearance - for that reason the police did not bother to write it down in that statement."

When counsel suggested that the effect of his evidence must therefore be that he had given a description to the police but the police had not recorded it, his answer was:

"Yes. It was because I was not sure of his facial appearance."

13. The witness also accepted that after he had identified the applicant at an identification parade he had merely said that he had recognised him as one of his attackers. He explained this by saying the police had not asked him to elaborate on the matter.

14. Later in cross-examination the witness was asked this question:

"Are you saying you did not have a clear memory of the facial features of this defendant until you saw him at the parade?"

and his answer was "Correct". The last question in cross-examination was:

"And you only had a vague impression of the facial appearance of your assailants?"

and his answer was "Agree." In re-examination, however, he said that he did not mean that he had had a vague impression of the facial appearance of all his assailants; the one exception was the man standing in the dock.

15. The judge considered the evidence with great care and set out most of Tse's evidence that she thought was significant in her Reasons for Verdict. We are not of the opinion that the quality of the identification evidence in this case was so poor that had a jury been trying the case it would be right for the judge to withdraw it from them at the close of the case for the prosecution. However, bearing in mind that the sole identifying witness and the applicant were strangers to each other and had not previously seen each other; the confusing situation, including the terror suffered by the witness by being attacked in that way (obviously he must have been trying to defend himself); the fact that the identification parade was held so long (eight months) after the incident; the fact that, for whatever reason, no description of the applicant had been given to the police by the witness whereas descriptions of three other alleged assailants had been given and taking into account Mr. Macrae's cogent submissions, it might well be that we would have entertained a lurking doubt, however careful the judge's approach and directions, had Tse's evidence stood alone.

16. However, the presence of the fingerprints on the glass on one of the tables in the restaurant clearly, as the judge held, has the effect of tending to confirm the correctness of the identification because it put the applicant in the restaurant. Instead of seeking to explain how the fingerprints came to be on the glass on that occasion, as he could have done had he wished, he chose to deny in his police statement that he had been in the restaurant at all. It must be recalled that the court in Turnbull pointed out that a court sitting with a jury would be entitled to direct them that although an accused person's absence from the witness box could not be regarded as evidence of anything, nevertheless, when assessing the quality of the identification evidence, they could take into consideration the fact that it had not been contradicted by any evidence coming from the accused himself. That is the position here.

17. In all the circumstances, we find that the conviction was safe and satisfactory and we entertain no lurking doubt about the correctness of the conviction. We, therefore, refuse the application.

Representation:

Mr. A. Macrae (M/s Paul C.W. Tse & Co.) for the Applicant

Mr. D.G. Saw (Crown Prosecutor) for the Crown/Respondent