The Queen v. Lee Ting Keung

CACC000485/1988

______

Coram: Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 30 May 1989

Date of Judgment: 30 May 1989

_______________

J U D G M E N T

_______________

Silke, V.P. :

1. The Applicant, Lee Ting Keung aged 27, appeared for trial before Mr. Hawkes, sitting as a Deputy Judge of the District Court, on a Charge Sheet containing eight charges.

2. The first six charges covered the period between the 15th March 1988 and the 16th April 1988.

3. The case for the Crown was that over that period Lau Sai wing, aged 20, an employee of the Applicant in the Applicant's flower shop - the Valentino Flower Shop in Pokfulam Road - had been abused physically and mentally. On occasions that physical abuse amounted to assault occasioning actual bodily harm, on occasions to the causing of grievous bodily harm and on occasions to wounding with intent.

4. The Applicant was convicted on the 1st, 3rd, 5th and 6th charges. He was acquitted on the 7th and 8th charges which related to a specific day, the 17th April 1988. The 4th charge, being an alternative to the 3rd, needed no verdict.

5. He now seeks leave to appeal against those convictions and, if it be necessary, his sentence of 3 years' imprisonment in total.

6. The Applicant was represented in this Court by Mr. Robert Buchanan who did not appear below.

7. As the trial judge described it: "This is an extremely unusual case." Lau Sai Wing lived with his family in the same premises which housed the flower shop. He in the basement with the flower shop on the ground floor.

8. Before 29th February 1988 he had helped the Applicant in cleaning out the shop for it was due to open in early March. On 29th February he was employed at a wage by the Applicant. In the end no wages appear to have been paid.

9. On 14th March he was first assaulted his face was slapped - and from then on he was the subject of daily assaults and beatings. On one occasion his hand was cut with a pair of scissors; on another his palm was burnt with a cigarette. He was struck with the handle of a feather duster.

10. On 17th April he finally left the Applicant's employment and sought the advice of a priest. His mother had found blood upon his clothes, asked for an explanation, had refused to believe what Lau said and that advice was then taken. Reports were made to the police.

11. In grounds one and three, the second ground not being pursued, Mr. Buchanan criticises the trial judge first for his evaluation of the evidence of Lau and, second his evaluation of that of the Applicant.

12. It has been submitted, on Ground one, that trial judge failed to "properly consider or adequately reconcile the contradictions, omissions, inconsistencies, discrepancies and exaggerations" in the evidence of Lau and, in particular, between his evidence at trial and an earlier statement which he had made to the police. That statement had been used for the purpose of his cross-examination by counsel then appearing for the Applicant and was before the Court in its entirety.

13. That first round contained eight separate particulars of such failures. The eighth itself containing ten sub-particulars.

14. In his Reasons for Verdict, the trial judge set out in some detail the evidence including the evidence as to the injuries, and both he and this Court had the benefit of photographs.

15. The medical examination of Lau had taken place on 18th April. Dr Wong Lap Wing, who gave evidence and was the examining doctor, described Lau's injuries to the Court as being a black eye and a bruise on the chin, an area of abrasion and a small brown mark on the patient's right palm, scab over both nipples and redness suggesting inflammation. There were numerous abrasions and some scabs over Lau's thighs and legs.

16. It is said, in addition to a general allegation of prejudice made against the trial judge, that he failed to particularise the discrepancies which he found in Lau's evidence and that he failed to he sufficiently aware of the differences as between the statement and the evidence which Lau gave in Court.

In his evaluation the trial judge said this:

"It is quite obvious that there are a number of discrepancies not only in his evidence but also quite significant discrepancies between what he said in Court and what he said in the statement to the police. He also said he felt very confused as to what had happened on the 17th of April and also what had happened over the whole period of time. He said that as the accused had assaulted him almost every-day he could not be expected to remember everything in detail.

The trial judge went on:

"Having seen and heard him give his evidence, however, notwithstanding the discrepancies in his evidence he did, basically, impress me as being a truthful witness. The Court heard how he had been affected physically by having meningitis, at the (sic) young age and I believe it may also have affected his personality. Although he obviously has the physical attributes of a man he impressed me as being almost child-like in some ways. It was understandable to me that he was somewhat confused over quite a number of matters particularly as to what had or had not occurred on specific days. On the other hand he appeared quite clear about certain matters which had hapnened to him over the period."

17. Mr. Buchanan submitted, in relation to the trial judge's evaluation of the evidence of the Applicant, that the judge failed properly to assess the credibility of the Applicant and relied upon "irrelevant insignificant and wrongful factors" when ruling that he disbelieved him. He complains that again the trial judge failed, to particularise the discrepancies which he found to exist in the Applicant's evidence that he wrongly relied on the fact that the injuries might have been caused by chemicals was not put expressly to Lau; that he expressed prejudice by finding the Applicant more "intelligent and sophisticated" than Lau and that he further erred in stating himself to have formed the impression that the Applicant was making up much of his evidence as he went along.

Of the Applicant, the trial judge said this:

"There were number of discrepancies in his evidence such as whether he knew that PW1 had a limp before employed him and whether he sacked him on two occasions or on one occasion and there were number of others."

18. It is the use of the phrase "number of others" which attracted part of the criticisms Mr Bucanan had levelled against this portion of the Seasons for Verdict.

The trial judge went onto say:

"    Also, contrary to suggestions made to PW1 by his counsel, he denied giving PW1 two strokes on his palm. Also in his evidence he said that part of the body of PW1 was injuried by chemicals in water. This was not suggested to PW1 by his counsel. He gave me the impression that he was making up much of his evidence as he went along. In my view, he was far from being an impressive witness.

He is obviously, however, more intelligent and sophisticated that PW1. Having seen and heard him give his evidence I just did not believe him when he told the Court that he never assaulted PW1."

19. The trial judge then expressed his disbelief in various matters which were raised by the Applicant, in the course of his evidence.

20. The trial judge was the seeing and the hearing judge. He was entitled to state himself to have formed the impressions he did and to give the pea picture of Lau and of the Applicant in the manner in which he did. The care which he took with his Reasons is manifest, down to his acquittal of the Applicant on the 7th and 8th charges. Of those he said:

"On the other hand I am not satisfied that the 7th charges been proved beyond reasonable doubt. There is marked discrepancy between what PW1 told the Court happened on that day and what he said occurred on that day in the statement. Quite apart from this, he admitted that he was confused as to what happened on that day, that is the 17th of April. Normally, time is not of the essence, but unlike in the other charges, a specific date was alleged in this particular charge."

21. We have considered the matters advanced to us by Mr. Buchanan in respect of these two grounds and they do not give us any cause to doubt the validity of the trial judge's evaluation of Lau or his evaluation of the Applicant. He was entitled on the evidence produced and shown by his proper evaluation of it, to believe one and disbelieve the other.

22. Seven other grounds of appeal have been advanced to us. The 4th ground, albeit this was but faintly pursued, was that the trial judge wrongly exercised his discretion when he refused an application made by counsel then appearing at trial to recall the doctor. This application was made at the conclusion of the defence evidence. It was made on the basis that counsel then had instructions that his client would consent to his making "certain submissions in his final speech". Those submissions were that the injuries caused to Lau were caused in the act of love making or sexual abuse. There had not been the faintest suggestion of any kind as to this during the course of the cross-examination of Lau or in the course of the Applicant's evidence. The judge very properly refused the application to call the doctor in order to support these "submissions" if we can call them that. We are a little surprised that counsel at trial was permitted subsequently in the course of that final address to repeat them.

23. The 5th and 6th grounds related mainly to the conduct of counsel conducting the case for the Crown at trial. We shall come back to those in a moment.

24. The 7th ground is in effect a rolled up ground of the complaints of the failure of the trial judge to properly consider the evidence and alleges a failure properly to direct himself that Lau came into the category of a suspect witness. If suggests that he should be seen to have explicitly warned himself as to the care necessary to be taken when considering the evidence of such a person and, finally, that the acquittals on the 7th and 8th charges were inconsistent with the finding of guilt on the others.

25. The trial judge was fully aware of the deficiencies and the nature of t he witness Lau. In our judgment Lau did not come within the ambit of a suspect witness making it necessary for the judge to explicitly warn himself. In any event the trial judge did and with obvious care consider the evidence given by Lau. His reasons for acquitting on the 7th and 8th charges were prefectly proper ones and reflect no inconsistency of any kind as between those acquittals and the conviction on the other charges

26. The 5th and 6th grounds, as we have said, relate to the conduct of counsel conducting the case on behalf of the Crown. It is said that she deliberately attacked the character of the Applicant and, while the trial judge refused the application to cross-examine as to credit, nevertheless he from then on was prejudiced in his knowledge that the Applicant must have had a record. While Mr. Buchanan does not now suggest that it was necessary for him to discharge himself from trial he has not resiled from the suggestions that the judge's subsequent consideraton of the whole matter was prejudiced by this application.

27. The reason for this application was because there was an allegation by the Applicant that Lau was a thief, a thoroughly unsubstantiated allegation. Nevertheless, counsel for the Crown requested that she be permitted to cross-examine the Applicant.  It must have been clear to the trial judge that when she referred to cross-examination as to character it was previous convictions that she had in mind. As we have said, he refused that application.

28. Mr. Buchanan has referred us to the Rehabilitation of Offender Ordinance, Cap.297 on the basis of which he says that the application was one which should and could never have been made. This was because the two convictions which the Applicant previously had were spent at the time of trial. He had been placed on probation on 18th April 1979 for four offences, claiming to be a member of a triad society, assault occasioning actual bodily harm, blackmail and theft. He had been sentenced to a Detention Centre on 15th May 1980 for robbery. The trial was some eight, years later.

29. Sub-section (2) of the Ordinance reads in its sub-paragraph, (a) of sub-section (1):

"2. (1) Where -

(a) an individual has been convicted in Hong Kong (before or after the commencement of this ordinance) an offence in respect of which he was not sentenced to death, imprisonment or to a fine exceeding $5,000;

30. We interpolate here that "imprisonment" does note include detention in a reformatory school, detention centre or a training centre.

31. Then for so long as that individual is not again convicted in Hong Kong for an offence no evidence shall be admissible in any proceedings which tends to show that that individual was convicted. But sub-section (2) contains in its sub-paragraph (b) of sub-section (1) this restriction: that the person has not been convicted in Hong Kong on "any earlier day" of an offence. The effect of that is that if there be two offences then offences are not spent. There is also a provision in section 3 sub-section (2) sub paragraph (c) which provides:

"(2) Nothing in section 2 shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to the conviction -

(a) ........

(b) ........

(c) in any proceedings where the tribunal is satisfied that justice cannot be done except by the admission of evidence relating to the conviction."

32. In our judgment the application to cross-examine was not barred by the provisions of that ordinance. Further counsel was entitled to make it there having been the allegation of theft as against Lau.

33. All that infolds itself in the 6th ground which reads:

"Throughout the proceedings and the trial the conduct of the prosecution fell below the paper standards of professional conduct, ..."

34. Six particulars are then given and it is alleged that, as a result of the prosecution's conduct during the proceedings, the trial judge was "prejudically and wrongly influenced" against the Applicant.

35. The first particular alleges frequent applications to amend the charges. The reality was a forecast of a possibility that applications might be made to amend, then an application to amend the 7th charge which the judge thought to be premature and which he suggested be held over and finally, an application to amend the 7th and 8th charges. The application to amend the 7th charge was not contested and was allowed the application to amend the 8th charge was contested and was disallowed. Those are the "frequent" applications to amend.

36. The second particular alleges attempts by counsel to (a) ask leading and hearsay questions from the Crown's own witness (b) to cross-examine the Applicant upon irrelevancies and (c) to make unwarranted objections to defence evidence. The reality was that there was one leading question asked which was objected to, there was one question which could have led to the introduction of hearsay which was objected to and there was one other question to which objection was taken for reasons of which we are not aware. And that was all. In the course of a trial which took some time and clearly was a difficult one for both counsel concerned it would be very surprising if question of this kind did not slip through.

37. The third particular infolds the ground to which we have referred which states it to be a "deliberate and unjustified" attack upon the character of the Applicant. That has no substance of any kind.

38. The fourth particular alleges an improper attempt "to question the Applicant upon privileged instructions given to his lawyers". That arose thus Counsel for the Crown in cross-examination referred to her having noted the Applicant taking down notes during the trial and went on:

"Q. And you are very keen to make sure everything is all right?"

The answer she received was:

"A. It was not for that purpose. I was trying to put down his lies in the Court and at the same time I put down the truth of the matter.

Q. So I suggest that you were very observant when your counsel cross-exmined Mr. Lau?

A. Yes.

Q. Do you agree it was never put to Mr. Lau by your counsel that Mr. Lau's injuries were caused by chemical in the water in the vases?

A. After he had sustained those injuries he felt injury and he scratched his wounds over his clothes."

39. It is the common course of any trial that where matters are raised for the first time in the course of evidence by an accused which have never been put to any of the prosecution witnesses, then an accused is asked questions in the way Crown counsel here made her enquiry here. Had she gone on to ask what the Applicant's instructions were or if he had given his counsel instruction on this matter, then a valid objection could have been taken but she did not.

40. The fifth particular was not pursued.

41. The sixth particular relates to the closing address of counsel which, it alleges was "substantially" at variance with the adopted opening in the case.

42. It was suggested that the address was emotive and Mr. Buchanan used the phrase "over the top". The Summary of Facts, which had been treated as an Opening by counsel made reference in a general manner to the case which the Crown hoped to prove. In her closing address, counsel referred to the doctor's evidence that the injuries found upon Lau were the sort of injuries he would expect to find on a battered child". She elaborated on the evidence which had been given. She asked a rhetorical question:

"You Honour, if this is not sadism then what can this be."

43. Counsel was perfectly entitled on the evidence produced to make reference to the doctor's evidence and to say that which she did as to "sadism". It was not an address which went in anyway "over the top" nor was it, as is alleged, substantially - or indeed at all - at variance with the opening.

44. It is our view that the conduct of counsel at trial in no way fell below the proper standards and that the attack made upon her is, to the use the words of the grounds of appeal in other respects, "unwarranted".

45. As we have said the trial judge very carefully considered all the evidence. Nothing that has been submitted to us gives us any cause for concern as to the safety or satisfactory nature of these convictions.

46. The application for leave to appeal against conviction are refused.

47. Before concluding this judgment we would intimate that in the light of the imputations which Mr. Buchanan saw fit to make when he closed this morning we intend to refer the matter to the Disciplinary Committee of the Hong Kong Bar Assocaiton for their consideration and of that we would say no more.

Sentence

48. There is an appeal against sentence, in the light of the strictures which we seen fit to level against the conduct of counsel in the previous portion of the appeal, we thought that it might be that the Applicant would wish to consider his position. We assured him that those strictures will in no way impinged on any consideration we give to the argument which might be raised on his application for leave to appeal against sentence. But he may wish to consult his instructing solicitors on the course he wishes to take.

49. We were then informed that the Applicant wished to obtain legal aid so as to instruct fresh counsel in his application on sentence. In the circumstances we granted him a legal aid certificate, subject to means and adjourned the application to a date to be fixed - that date to be before the end of June.

Representation:

Robert Buchanan, Esq. (Tang, Wong & Cheung) for Applicant

A.A. Bruce, Esq. for Crown/Respondent