Tse Chun Hing v. The Queen

CACC000407/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 407 OF 1973

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Coram: Pickering, J.

Date of Judgment: 28th June, 1973.

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JUDGMENT

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1. The appellant appealed against his conviction for wounding contrary to s.19 of the Offences Against the Person Ordinance. I allowed the appeal and now give my reasons.

2. There is no doubt that a youth called CHAU Kiu-tung did receive one two-inch deep stab wound in the abdomen. The events which preceded that wounding occupied a period of several hours. The area with which we are concerned is the Tai Wan San Resettlement Estate where the appellant's parents operate a store. At approximately noon on the 3rd of January this year, it is alleged that the younger brother of the wounded youth attempted to steal a crate of areated water from outside the store and was chased away, whereafter a group of four or five youths carrying sticks approached the store demanding that either the appellant or his brother (it is not clear which) be handed over to them. This demand was not complied with and the group left, having warned the occupants that they had "better be careful". Some time after five in the afternoon on the same day a group of 20 to 30 persons, including the younger brother of the wounded youth, came to the store; this is according to the evidence of the appellant, his mother and his brother, although the younger brother of the wounded youth denied, in evidence, that he was in fact a member of that group. At that time the appellant and his mother and his younger brother were in the premises and the group burst in assaulting the appellant's younger brother and hitting his mother with a wooden pole causing injury to her eye. Just after this group had left, it happened that the father of the appellant who was not present during the attack, telephoned his home and was told of what had occurred, whereupon he returned home and, on being informed that the youth who had attempted to steal the crate of areated water at noon was amongst the attacking group, left his home for the neighbouring home of that young man. He was followed by the appellant, whom he had instructed to accompany him but who was somewhat reluctant to do so.

3. Having arrived outside the home of the younger brother of the wounded youth he called to the former to come out, whereupon, according to his evidence, he was rushed by a group of persons and took to his heels, telling the appellant, who had stopped some distance behind him near a water collecting point, to run also. The two reached their own store, the appellant arriving first, and hastily closed the grille against the attacking group. The grille was not opened again until after the arrival of police.

4. The victim's version of the events was different. He claimed that on hearing his younger brother called out by the appellant's father, he followed, saw the appellant's father attempting to hit his younger brother and went out to mediate, whereupon he was seized around the neck by the appellant's younger brother and stabbed once in the abdomen by the appellant with something which was wrapped in newspaper. The victim's evidence was the only evidence remotely reliable as to the identity of the appellant as the person stabbing. There was at one time some confusion in identification as between the appellant and his younger brother by reason of the fact that, at different stages of the trial, they sat in the dock in a different order, but this confusion was eventually clarified. The learned magistrate accepted the identification of the appellant by the victim, although the appellant's father, mother and brother all said that the appellant was nowhere near the victim but stood at some distance near the water collecting point and had nothing in his hands. It was, of course, open to the learned magistrate to accept the victim's identification of the appellant, but the route by which he arrived at that acceptance, bears some of the characteristics of a short cut.

5. A difficulty which faced the defence was the reluctance, indeed refusal, of eye-witnesses to come forward to give evidence. Mr. Yeung, for the appellant, told the court that eye-witnesses were terrorised by a gang of hooligans, which included the prosecution witnesses, and were unwilling to come to court; he was not authorised to issue subpoenas because he did not wish to put them in jeopardy since all of them had children and the gang threatened them. Father Martin, the principal of Tang Keng Po School, had made strenuous endeavours to get these eye-witnesses to come to court but they steadfastly refused and the most they would do was to make a written statement which the prosecution had agreed could be put in, leaving it to the learned magistrate's discretion as to how much weight should be attached to it. That statement was in the following form:

6. That statement went before the court but the learned magistrate made no reference to it until, after verdict and sentence, he came to write his Statement of Findings for the purpose of this appeal when he said that he had concluded that he could not use the statement as evidence.

7. Mr. Martin Lee, who appeared on the appeal for the appellant, said that he was instructed by the solicitor who had appeared for the appellant in the court below, that at the stage when the statement was put in before the court, the learned magistrate did not indicate that he was admitting the statement only provisionally; at that time both prosecution and defence were under the impression that the statement was in evidence. I would observe that even had the learned magistrate not only marked the exhibit as provisional (which he did) but also stated that he was so doing, it would have been incumbent upon him at some stage either to rule the statement inadmissible and reject it, or to rule it admissible and convert it to the status of a full exhibit. In the event he did neither and it was not until he came to prepare his Statement of Findings, for the purpose of this appeal, that it emerged that he had rejected the statement as inadmissible.

8. In fact the learned magistrate was right in so doing but, by deferring any mention of his ruling until after the trial was over, he deprived the defence of a simple means of rendering the statement admissible. Throughout the trial nobody referred to s.65B of the Criminal Procedure Ordinance which, its material parts, reads as follows:

9. It is, of course, the requirement of sub-s. (2)(b) which is lacking in the statement in question and it was that lack which rendered the statement inadmissible.

10. Had the learned magistrate explained that it was for that reason that he was ruling the statement inadmissible, it would have been open to the defence to proffer a fresh statement incorporating the necessary certificate or to amend the existing statement by the addition of such a certificate. The learned magistrate's silence deprived them of this opportunity and therefore of the opportunity of having the statement considered for whatever it was worth. What weight the learned magistrate would have placed upon the statement, is not a matter upon which I can speculate but it is apparent that evidence which the defence wished to be considered and thought would be considered by the learned magistrate was ignored by him without any opportunity being given to the defence to legitimise the statement by incorporation of the necessary certificate by the makers. Inherent in the defence was the suggestion that the victim was not injured in the way he described but at some subsequent time that evening and that he had placed the blame upon the appellant as a result of the bad blood which existed between the two families, and it is possible that this statement would have gone some way towards influencing the learned magistrate to that view had the defence been given the opportunity of putting it before the court in acceptable form. This was the substance of Mr. Lee's third Ground of Appeal and some merit must attach to it.

11. Another Ground of Appeal was that the learned magistrate had misdirected himself on the burden of proof when he said in the course of reaching his verdict:

"Before me the defendant denied any knowledge of the injury and in that case finds himself in great difficulty in trying to explain how victim came by it. He has no need to - all he needs to do is to raise a doubt in my mind that the victim received his wound in some other way or from some other hand - or if he can raise a doubt that victim was actuated by such ill will towards him that he had chosen deliberately to frame the defendant - why the defendant is entitled to benefit of that doubt".

It was Mr. Lee's complaint that the learned magistrate had misdirected himself in that passage and that it was always for the prosecution to prove guilt beyond reasonable doubt, it being unnecessary for a defendant to create a doubt but being rather for the prosecution to dispel any doubt. It was, Mr. Lee argued, perfectly proper for the appellant to admit to the court that he did not know how the victim got his injury, and to add that he was sure that he himself did not inflict it and could only suggest possible ways whereby the victim had come by his injury; it was quite wrong, counsel said, for the magistrate to say that because the appellant could not raise a doubt by such suggestions, he could be convicted; in law, even though a magistrate found that all a defendant said were lies, he still had to sit back and ask himself whether in spite of it all, having regard to the totality of the evidence, he had any doubt in his mind - and that doubt need not be raised by the defence.

12. To this argument Mr. Niamatullah, for the Crown, conceded that the way in which the magistrate had expressed himself was perhaps unfortunate but argued that it was clear that the learned magistrate was quite satisfied that the victim was stabbed by the defendant.

13. Had this Ground of Appeal stood alone there might have been substance in Mr. Niamatullah's reply to the argument advanced on behalf of the appellant but, having regard to the learned magistrate's failure to acquaint the defence of the fact that the statement which they thought was in evidence was inadmissible, and consequently to give them any opportunity of legitimising the form of that statement, I am unable to say that had the learned magistrate considered the statement, he would still have been satisfied that the victim was stabbed by the appellant. Thus the existence of the Ground of Appeal relating to the admissibility of the statement, lends support to that ground which alleges misdirection as to the burden of proof.

14. There was, additionally, some merit in Mr. Lee's fifth Ground of Appeal but that is a ground peculiar to the facts of this case and of no general interest. I have, I consider, said sufficient in regard to the two grounds with which I have dealt, to illustrate that the conviction is unsafe and should not be allowed to stand. I found no merit in the remaining two grounds of appeal, that is, Grounds 1 and 2.

15. The appeal was therefore allowed, the conviction quashed and the sentence of detention in a Detention Centre, set aside.

Representation:

Martin Lee (J.S. & M.) assigned for appellant.

Niamatullah, C.C. for respondent.