The Queen v. Choi Wai-ming

CACC000459/1983

BETWEEN

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

Date: 11th October, 1983

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JUDGMENT

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McMullin, V.-P. :

1. The applicant in this case was convicted in the District Court upon a charge of wounding with intent contrary to the provisions of the s. 17 of the Offence Against the Person Ordinance. The trial took place on the 22nd of March and judgment was given shortly after the conclusion thereof. It was in fact a re-trial, a factor which is important in relation to what has transpired before the court this morning.

2. The facts of the case are briefly these. The victim Chan Hung Tat was an employee of an establishment known as the Hop Shing Paper factory which is situated in the Chung Hing Building. On the 7th of November, at about 9:00 a.m. in the morning, while he was on the ground floor near the lift lobby, having returned from a mission in which he had been delivering goods for the paper factory, he was suddenly attacked from behind by a person who inflicted upon him serious injuries both to his back and his arm. These injuries required him to be taken shortly thereafter to hospital where he was treated and fortunately promptly attended to so that what might have been a more disastrous result from a very fierce attack was avoided. He did however spend some months in hospital before he was fully recovered.

3. He purported to identify the applicant as his assailant. The applicant had been a colleague of his in the same business premises for some time prior to the attack. Some 10 days before that event an altercation had arisen which involved the victim and the applicant and the proprietress of the factory. It appears that because the hour was late, it being about 6 p.m., the applicant was unwilling to carry out an order at the proprietress' instruction and this was carried out instead by the victim. The applicant was dismissed on the spot by the proprietress as a result of this insubordinate conduct. Ten days after that occurred the attack with which the case was concerned.

4. Mr. Plowman who appears this morning on behalf of the Crown does not seek to support the conviction in this case. We would make it clear however that this is not an instance of the court allowing an appeal by consent of the parties because we are quite satisfied that what occurred in the course of the trial would make it impossible for this court to sustain the conviction.

5. Briefly put, what transpired is this. Evidence was led from a witness called on behalf of the Crown who told the court that very shortly after the attack he went to where the victim was sitting near the lift in the lift lobby and was told by the victim that the person who had attacked him was Tai Kau Ming which is one of the names used by the applicant. That was not objected to at the trial. Subsequently, further evidence was introduced from a police officer who came to the scene shortly after the event and who was transporting the victim in an ambulance. He gave evidence that a similar revelation had been made to him and that evidence was also admitted without objection by counsel or indeed on the part of the Judge.

6. Clearly, in the view of this court, the evidence thus admitted was in the nature of hearsay and the gravity of the effect of it on the applicant's case is compounded by virtue of the fact that this was precisely the evidence admitted on the previous trial, the admission of which was in major part responsible for the allowing of the appeal against conviction on the previous trial.

7. The Court of Appeal then delivered a judgment in which Mr Justice of Appeal, Yang, referred to the evidence to which I have just now referred. He noted the fact that it had been argued on behalf of the appellant that that evidence was hearsay and that the argument on the other side for the Crown was that it was admissible as being part of the res gestae. He said: "We are of the view that this is not a res gestae situation and that neither statement should have been admitted in evidence." We are in respectful agreement with that view.

8. Objection had also been taken upon the previous appeal to the admission of this other evidence. This was evidence relating to an identification parade in respect of which the Court of Appeal expressed a measure of dissatisfaction. The same evidence was led in the course of the second trial. We do not find it necessary to refer to that particular part of the evidence inasmuch as the hearsay to which I have already referred clearly, on both trials, afforded a valid ground of objection. In the second trial, Counsel for the Crown in fact positively referred to this hearsay and relied upon it.

9. We have been informed by Mr. Plowman this morning of the circumstances whereby it came about that when the second trial commenced, counsel who then appeared and solicitors on both sides were apparently unaware of the decision of the Court of Appeal resulting from the previous trial.

10. Mr. Payne, who has not been called upon to any great extent this morning, has, and we think legitimately, expressed some surprise that it should have transpired that in both trials-and notwithstanding that in the subsequent trial counsel was unaware of the result of the previous appeal - this evidence was tendered and received. I should stress the fact that the solicitors appearing at the first trial were not those appearing upon the second. At the first trial the solicitor who then appeared for the defendant did make objection to the admission of the hearsay which has been under discussion in this judgment.That submission was however overruled with the result which has already been described. At the second trial it appears that, when this evidence was led, no objection was taken thereto and the solicitors who then appeared for the defendant were not the same solicitors.

11. In the upshot however it appears to this court that on the facts which I have described, the applicant must have felt that he did not have a fair trial on the second occasion.

12. Mr. Plowman with customary fairness has told the court that the Crown not only does not seek to support the conviction in the present case, but furthermore does not ask that the court should make any further order in respect of re-trial of the applicant. For the reasons given therefore the appeal must be allowed and the conviction quashed and the sentence set aside.

Representation:

Ian Payne (Robertson, Double & Boase) for Appellant.

Cary Plowman for Respondent/Crown.