The Queen v. Leung Chun Pui

CACC000317A/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Huggins, V.-P., Kempster, J. A. & Macdougall, J.

Date of Hearing: 11th September 1986

Date of Judgment: 11th September 1986

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JUDGMENT

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Kempster, J. A.:

1. On 4th June of this year Leung Chun-pui was convicted of an offence of criminal damage by Judge Tung at Kowloon District Court. From that conviction he seeks our leave to appeal.

2. The matter first came before us on 13th August when application was made to file further grounds of appeal. Having regard to the legal interest of at least one of the grounds, being that upon which the applicant has relied today, and to the desirability of providing the Crown with an opportunity for consideration and of putting certain affidavit evidence before the trial judge, we granted an adjournment. Mr. Cross, on behalf of the Crown, has employed the intervening days to advantage.

3. By his "Reasons for Verdict", which constituted the bones of a reserved decision given on 4th June, the judge found himself satisfied on the evidence that the applicant had been one of a number of men seen smashing windows and sign boards at the Tsimshatsui Centre with wooden poles in the early hours of the morning of 2nd February 1986., The judge particularly relied upon the evidence of Inspector Rees who had been in a taxi travelling from Mongkok and, as the taxi turned into Mody Lane from Salisbury Avenue, had witnessed this crime. He had caused the taxi to stop, alighted and fixed his attention upon a particular individual who was holding a pole with a white handle. That particular individual the Inspector chased and, according to his account of the matter, arrested and charged. If the In spector was right he is the applicant before us.

4. The substantial issue at trial was the reliability of the Inspector's recollection and identification. What is now complained of is the fact that between the conclusion of the evidence and the time when he gave his decision and verdict on 4th June the judge visited the scene of the crime. We have read affirmations from counsel acting for the applicant at trial, Mr. Hatton, and from counsel who appeared on behalf of the Crown, Mr. S. H. Chow, that the judge so stated on that date.

5. Mr. Spicer, who appears before us today on behalf of the applicant, made very effort to bring these affirmations to the notice of the trial judge for his comment. It appears that the judge declined to read them. Since we are satisfied that he was afforded the opportunity we are prepared to and indeed do accept that the judge had visited the scene. Such a visit, submits Mr. Spicer, made without reference to counsel, constituted a material irregularity in the course of trial which vitiates the conviction.

6. The cardinal principle in criminal cases was expressed by Lord Reading as long ago as 1915 in LEE Kun v The King ⁽¹⁾ in these words:

"No trial for felony can be had except in the presence of the accused, unless he creates a disturbance preventing a continuance of the trial. Even in a charge of misdemeanour there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him, and have the opportunity, having heard it, of answering it."

So it was contended that evidence had been taken by way of a private view by the judge in the absence of the accused. But Mr. Cross has drawn our attention to the following passage from the judgment of Hodson L. J., as he then was, in Goold v Evans & Co. ^{(2) :}

"Mr. Croom-Johnson has, I think, rightly contended that a view is not in itself evidence."

That statement was made in the context of a civil appeal but there is recent English authority, with which we respectfully agree, to the effect that principles developed in the context of civil trials where a judge has occasion to visit the locus in quo are applicable as well to criminal proceedings an which a judge sits without a jury. Having so stated in general terms we turn to certain specific authorities in chronological order.

7. The first of these authorities is the case just referred-to, Goold v Evans & Co. ⁽²⁾ in which, at p.1191, Denning L. J., as he then was, said:

It is a fundamental principle of our law that a Judge must act on the evidence before him and not on outside information; and, further, the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself, I think that a view is part of the evidence, just as much as an exhibit. it is real evidence. But, even if a view is not evidence, the same principles apply. The Judge must make his view in the presence of both parties, or, at any rate, each party must be given an opportunity of being present.

and then these critical words:

The only exception is when a Judge goes by himself to see some public place, such as the site of a road accident, with neither party present.

That passage was accepted and indorsed some 20 years later in Salsbury v Woodland ⁽³⁾ where, at p.343, Widgery L. J. quoted the passage from the judgment of Donning L. J. in Goold v Evans & Co. ⁽²⁾ just read and added:

"I respectfully adopt those observations as being the correct approach to this question. I would also say in general that a view is something which should be conducted by the judge by appointment, in the presence of representatives of both sides. However, the expression "view'' is used indifferently to describe two very different things. Sometimes it refers to what Denning L. J. spoke of as a judge going to see some public place, where all that is involved is the presence of the judge using his eyes to see in three demensions in true colour something which had previously been represented to him in plan and photograph. The other way in which the word "view" is frequently used is to describe some kind of demonstration in which the events of the accident are reconstructed or simulated; and, in my judgment, it would be exceedingly dangerous for a judge to attend anything which could be described as a demonstration except in strict accordance with the principles laid down by Denning L. J. - in the presence of representatives of both sides. Different considerations apply to a "view" in the true meaning of the word, where all that is required is that the judge should go to the place to see what it looks like, he having been already given in evidence the available assistance in the form of photographs and a plan."

And then Widgery L. J. went on to explain the custom of judges on circuit to visit the scenes of road-accidents at week ends if they had not returned to London and prior to giving judgment.

8. Like principles were thought appropriate in the context of trial by Magistrates by an English Divisional Court comprising Glidewell L. J. and Schiemann J. in Parry v Bole ⁽⁴⁾.  There the Justices had informed the parties that they proposed to view the scene of an alleged crime during the lunch adjournment. No one said they wanted to join them. They visited the scene and on their return dismissed the information. The Crown appealed; the question being whether the Justices had acted correctly in visiting the scene without arranging for the legal representatives and the accused to be present. In summary the Divisional Court held that the principles laid down in Goold v Evans & Co. ⁽²⁾ and Salsbury v Woodland ⁽³⁾ should be adopted in relation to genuine views by, as opposed to demonstrations before, Magistrates. The reasoning, for which we are indebted to Mr. Cross who, with the consent of Mr. Spicer, has produced a telexed transcript of the judgment, is significant. When referring to the two civil authorities in question Glidewell L. J. observed that they were

"- as close as one can get to the position of the magistrates because the magistrates, like the judge trying the civil case, are judges both of the law and of the facts. They are going to make both decisions themselves. and the position is more analogous, therefore, to such a case than it is to a criminal trial with judge and jury."

There is no equivalent in England to a District Judge trying relatively serious crimes without a jury. His position, in our view, is directly analogous to that of magistrates in England because he too is the judge both of the law and of the facts.

9. As regards the instant application the judge went to a public place in order to use his eyes to see in three dimensions and true colour something which had previously been represented to him in two sketch plans. Applying the rationale of the English civil authorities we find nothing improper in the course which he took and nothing which either occasioned the applicant any injustice or which, technically or otherwise, vitiated the conviction.

10. On account of the general interest of the point canvassed we allow the application for leave to appeal against conviction and treat this as the hearing of that appeal. But the appeal must be dismissed.

(1)    Vol. 11 Cr. App. R.293 at p.300

(2)    (1951) 2 T. L. R. 1189 at p.1192

(3)    (1970) 1 Q.B. 324

(4)    1986 Criminal Law Review 55

Representation:

Mr. R. Spicer (C. W. Leung & Co.) for Applicant

Mr. I. G. Cross & Mr. W. S. Cheung for Crown