Wong Ying Choi v. The Queen

CACC000465/1979

Coram: Trainor, J.

Date of Judgment: 22 June 1979

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REASONS FOR JUDGMENT

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1. The appellant, Wong Ying-choi, was convicted on two charges of (a) being in possession of an offensive weapon in a public place; and (b) resisting arrest, and appealed against his conviction. I allowed his appeal and I now give my reasons.

2. The evidence against the appellant was given by two police constables. PW1 said that at about 8.10 a.m. on the 4th December, 1978 he and PW2 saw the appellant in Ivy Street and "his appearance and actions were suspicious;". He said he and his companion approached and questioned the appellant and searched him. The appellant, the witness said in cross-examination, was standing with his two arms on a truck while he was being searched, the witness and his companion being behind him. The witness agreed that the appellant could not see what was going on behind him during the search. He said he found a naked knife tucked inside his left sock. The knife was produced and it was, according to the magistrate's notes, 7½ inches long, including a 3½ inches wooden handle. He also noted "not very sharp". In fact the exhibit was available to me and it was an old knife rounded at the end of the blade and covered with rust. I would have described its one cutting edge as blunt.

3. PW1 said that when he approached the appellant he identified himself. He said he asked the accused what the knife was for but got no reply. He said he told the appellant that he was under arrest and cautioned him. He said that he took out his handcuffs and was about to handcuff the appellant when he suddenly pushed the witness and ran away. In cross-examination he said the appellant ran very quickly but was caught after he had gone 6 feet. He said the appellant after his resistance was overcome and was handcuffed. The appellant was then taken back to Tai Kok Tsui Police Station where a report was made and from there to Mong Kok Police Station.

4. In cross-examination the witness admitted that there was quite an extensive conversation between himself and the appellant in the ten minutes that intervened between the time he approached the appellant and the time of his arrest. In further cross-examination the witness said when the appellant was being searched his back was towards the witness. He also told of enquiries he made of the appellant about the ownership of the watch he was wearing and a ball pen.

5. The witness was asked what happened to the knife. He said it was handed to the Officer in Charge of C.I.D. at Tai Kok Tsui and was placed in an envelope and kept by the police constable in charge of such property. He said the appellant did not sign the envelope.

6. This witness denied in cross-examination that the appellant asked to see a superior officer at Tai Kok Tsui but agreed that he refused to have his finger prints taken. He said he did not know why he refused nor did he ask him. He denied that the appellant said he would co-operate if he could see a superior officer to whom he might make a complaint. The witness denied that the appellant spoke to a female police officer although there was one present.

7. The appellant was taken to Mong Kok Police Station and again, according to the witness, refused to have his finger prints taken, but why he reused the witness did not know and he did not ask.

8. It was put to this witness that in Mong Kok Police Station the appellant told the Duty Officer he had never seen the knife before and that thereupon the witness produced one from the top of a cupboard. The witness denied this.

9. In further cross-examination the witness agreed that the police wished to search the appellant's house but the appellant refused to take them there if the witness and his companion were among the party, saying that he did not trust them but would take any other officers.

10. PW2 said he and PW1 saw the appellant acting suspiciously. He said they approached him, revealed their identities and asked where he was going. He said the appellant "was asked something about his ball pen", and after that PW1 searched the appellant who had two hands on the truck as he faced the truck while the two witnesses were behind him; he was in that position for a couple of minutes. He said a knife was found in the appellant's left sock. He said that PW1 asked the appellant why he had the knife and the appellant said "that knife is not mine". That, it will be noted, is an immediate denial by the appellant that the knife was his. It will be remembered that PW1 said he asked the appellant what he used the knife for but the appellant did not reply. PW2 continued to say that PW1 said to the appellant: "If the knife is not yours why would it be found on your left leg." PW2 said that when PW1 told the appellant he was going to arrest him and was about to handcuff him the appellant pushed PW1 and started to run. In cross-examination he said the appellant ran fast but was caught after running six to seven feet.

11. It is not easy to visualise how the appellant with his arms on a truck and about to be handcuffed from behind could push PW1 and run away fast - even for six feet. In cross-examination the witness said that in the Report Centre the appellant was calm and co-operative but refused to be finger-printed. He said he did not know why but he did know that the appellant refused to take the police to his home if he and PW1 were with the party. He then said he knew why that was: the appellant said the knife was not his.

12. The appellant in his evidence said on the morning in question, the 4th December, 1978, he left his home to find a cafe and a shop selling shutters. He said he did not know the area as he had only moved in the day before. He said he was approached by PW1 and PW2 and PW1 asked him what he was looking for. He said he was asked where he lived but was unable to tell them the name of the street as he had only moved in the day before but told them that he had a receipt for rent for the month of December. He was asked why he was looking around and he told them he was looking for a place to have tea and a shop selling shutters. He said he took out his diary, driving licence and some bank notes. He said one of the constables counted the bank notes and asked him how much money he had. He said he told the constable he had $100 odd and was told that he should know the exact amount. He said he told the constable "Unlike you I am poor and I don't count every cent", whereupon the constable abused him, using foul language. He said he was asked to remove his watch and was questioned about it. He said the constable held the watch and asked him to leave. He said the constable then looked at him for a while and said that he wanted to take him to the police station. He said he told the constable he would go to the station but first he wanted his watch back. He said he got his watch back and then he was searched but no knife was found on him.

13. The appellant said he was taken to Tai Kok Tsui Police Station but he did not know why. He said at the station he asked a sergeant who took personal details from him why he was there and was told "My fokis say you had a knife on your person" and that was the first time he heard of the knife. He said he told the sergeant who wanted to take his finger-prints that he wished to lodge a complaint and he would only consent to being finger-printed if he, the sergeant would write down the complaint, but the sergeant did not write down the complaint. He said a Woman Police Constable was passing and he complained to her. He said the sergeant asked her to come in and the appellant told her what happened and she wrote something down. He said he was taken to Mong Kok Police Station and demanded to see an Inspector and did. He said he told him of the incident and denied he had the knife but the Inspector did not write anything.

14. The appellant said at Mong Kok Police Station he was again asked to consent to being finger-printed and again refused unless his complaint was recorded.

15. The appellant said that as he was being brought to the cells he passed a room in which there was an Inspector and he complained to him. He said the Inspector asked one of the escorts to let him have a look at the knife and the officer went to a cupboard and produced from it a government envelope with a knife in it. The appellant said that was the first time he saw the knife. He said he did not handle the knife and he never signed any label attached to the knife. He said that he was taken to the cells and later was taken out and asked to bring police officers to his home that they might search it. He said he refused to do so if PW1 and PW2 were of the party. He said a European officer to whom he had also complained asked him if he would be happy to let another party carry out the search and he said yes and the search was effected.

16. The last part of the appellant's direct examination about the search at the time of his arrest and the first part of his cross-examination are important because of the observations of the learned magistrate with regard to it:

Cross-examination:

17. Referring to the piece of evidence given in direct examination the magistrate, having quoted it said:

"This response clearly took Counsel by surprise. The first two questions asked of the appellant in cross-examination established that what the appellant was suggesting was that the knife he was later accused of having in his possession had been found by the officers in a basket of rubbish close to where he was searched, and was taken out by the officers, or one of them, so that the appellant could be falsely accused of having possession of it. I was surprised to hear this from the appellant having regard to his earlier evidence that the knife had first been shown to him at the Mongkok Police Station".

18. I can see nothing in that part of the examination or cross-examination that in any way conflicts with the appellant's evidence that he first saw the knife in the Police Station. Moreover, I was assured by counsel for the appellant that far from counsel at the trial being surprised it was part of his instructions that the knife might have been picked up by the police officers while the appellant had his hands on the lorry and his back to the officers. Mr. Sedgwick who appeared for the appellant before me pointed out parts of the cross-examination of the police witnesses which were a preparation for the evidence that the appellant gave e.g. the existence of metal shops in the area; when defendant was searched he had his back to the officers; when searched had both arms on a truck and was in that position for a couple of minutes.

19. At the hearing of the appeal Mr. Stock who appeared for the Crown discovered, in court with the help of the Police Inspector, from the police file that a complaint had been made by the appellant and an investigation had been directed. He went through the file but could find nothing to suggest that any further action had been taken. There was nothing in the file to suggest that a statement was taken from the appellant or the police witnesses.

20. It is impossible to say how strongly the magistrate was affected by what he believed to be the surprise of counsel at the evidence of the appellant concerning where the knife might have been found. He did consider it to be of some importance as he devoted the fairly long paragraph in which he mentioned his surprise to it.

21. With regard to the complaints of the appellant the magistrate merely recited all of them as told by the appellant without any comment whatever. When PW1 was being cross-examined he was asked about some of the complaints the appellant alleged he made but the witness denied they were made and the magistrate considered him a truthful witness.

22. When the appellant was cross-examined by the prosecuting Inspector we find this:

23. All I can say of that is that I hope the Inspector was unaware of the complaint recorded on the file. If he was aware of it it was a most improper cross-examination that could do nothing but mislead the court; if the was not aware of it he was inadequately instructed.

24. Had the learned magistrate been aware of the instructions of counsel in the court below or had he appreciated the purpose of the cross-examination of PW1, and had he been aware that the appellant had complained as he said it is very possible that he would not have concluded as he did:

"The appellant, on the other hand, I considered to be a glib liar. I did not believe his evidence where it conflicted with that of the police officers."

25. I considered that the conviction was totally unsatisfactory and I hope that some enquiry will be held, not only into the appellant's complaint but into the proofs available to the prosecuting Inspector.

Representation:

Mr. Sedgwick & Mr. Cheng Huen (Kwong & Lam) for appellant

Mr. Stock, c.c. for Crown.