Chan Kwong Wah and Others v. The Queen

CACC000486/1981

BETWEEN

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Coram: Roberts, C. J., Huggins, V.-P., & Barker, J. A.

Date: 8 January 1982

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J U D G M E N T

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Huggins, V.-P. :

1. Late on 20th June 1980 the isolated village of Lau Fau Shan was the scene of inter-triad violence. As a result four defendants were indicted, the 1st and 4th on one count of murder and four counts of unlawful and malicious wounding, the 2nd on three counts of unlawful and malicious wounding, and the 3rd on two counts of unlawful and malicious wounding. The 1st and 4th Defendants were convicted on the murder charge and three of the wounding charges, and the 2nd Defendant was convicted on two of the wounding charges.

2. There were three separate incidents. The first two counts related to the first incident, the third count (on which all the defendants were acquitted) related to the second incident, and the last two counts related to the third incident.

3. The 1st and 4th Defendants appealed only against their convictions on the charge of murder, and we felt constrained to allow their appeals on the ground that the learned Judge omitted to make it clear to the jury that they had to be satisfied that the death of the Deceased was caused by the acts of these Defendants.  It is no longer in dispute that the 1st and 4th Defendants, together with others, made an attack with knives in a restaurant where the Deceased and Siu Wai-on (the victim in the second count) were sitting. Siu was very severely wounded and the Deceased was chased out of the restaurant. Some four hours later the Deceased was found lying with multiple injuries in a paddy field not far away. He died in hospital some days later from hypostatic pneumonia following a head injury. There was no direct evidence that any head injury was inflicted on the Deceased by the Defendants or their colleagues, either in the restaurant or in the course of the chase which immediately followed, nor, indeed, was there any evidence as to how and when the injuries - and in particular the head injury - were inflicted. It is possible that he fell during the chase, in which event his assailants would be guilty not of murder but of manslaughter. It is possible, if less likely, that he escaped these assailants and was attacked by some one else. The Judge correctly defined murder in these terms:

Murder, which is the subject matter of the first count, may be defined for the purposes of this trial in this way: a person is guilty of murder if, without lawful justification or excuse, he kills another man intending either to kill him or to cause him grievous bodily harm.

He then continued:

Therefore if a man shoots, chops or wounds another intending at the time of inflicting the injury either to kill the victim or to cause him grievous bodily harm, then the offence is one of murder."

That further passage made no reference to the essential ingredient of causation and this was an omission which occurred again when the Judge said that if the 4th Defendant was a member of the attacking group and

"was sharing the same common intention as the person who deliberately chopped the deceased intending at the time of so doing to cause him at least grievous bodily harm, and, as I say, the 4th defendant shared that common enterprise, then he is equally guilty of murder."

It was not the chop wounds which caused the death of the Deceased. It should be mentioned that in the course of a somewhat obscurely worded submission of no case to answer Counsel then appearing for the 1st, 2nd and 4th Defendants did briefly argue that the evidence of causation was unsatisfactory, but this argument appears to have been lost amidst the other matters raised and was not referred to either by Counsel for the Crown in his reply or by the Judge in his ruling.

4. The 2nd Defendant was not alleged to have been involved in the first incident. The third incident took place later in another restaurant, where two other members of the same triad society as the previous victims were sitting. Four or five men armed with knives burst in and chopped them. The 2nd Defendant was identified as one of these assailants.

5. The appeal of the 2nd Defendant is entirely concerned with the evidence of identification and the Judge's directions thereon. It is logical to deal first with Ground 5 of the re-amended Grounds of Appeal, which was to the effect that the evidence was of such poor quality that, in the light of the guidance given in Turnbull (1976) 63 Crim. App. R. 132, 138, the case should have been withdrawn from the jury. It is enough to say that we are not persuaded that the evidence was so poor that no reasonable jury, properly directed, could have acted upon the evidence of Chan Chun-hung, the victim in Count 4. That is the correct test. Nor do we think that convictions based on the available evidence were unsafe and unsatisfactory.

6. We come, then, to the criticisms of the learned Judge's charge to the jury. In Ground l, complaint is made of the Judge's assertion,

"You see, members of the jury, these defendants and these victims all come from the same area and there is evidence that they have known each other for many years."

It is said that there was no direct evidence to support that statement and no evidence from which its truth could properly he inferred.  The Crown does not suggest that there was any direct evidence on the point: counsel submits, first, that the geographical position of Lau Fau Shan and the proved facts that all the Defendants and victims resided there justified the passage complained of, and, secondly, that in the light of the manner in which the defence case was presented to the Judge, it lies ill on the 2nd Defendant to contend that the Judge was wrong. In his closing address to the jury counsel twice referred to what he described as the background of the village and to the relationship of the protagonists in this case:

"You can see that some of the - well, if not all, some of the alleged victims and people standing in the dock are grown up together since small boys, they know each other, and I would say that some of the identification parades nay be just a matter of formality."

Later he said:

"Now the background of this case, they know each other, they have seen each other. According to SIU Wai-hon, according to some of the young boys, they all grew up together, I have commented on that ."

It is therefore not surprising that the learned Judge took it to be common ground that everyone knew every one else. It is easy, with hindsight, to say that it would have been better had he left it to the jury to decide whether Chan Chun-hung Knew the 2nd Defendant previously. The relevance of the point was, of course, that the identification was made in a very short space of time and was more likely to be accurate if it involved recognition of someone with whom the witness was already acquainted. It does not assist the Crown that the witness professed himself to be certain that his identification was correct.  Nevertheless, we think that in all the circumstances it was a fair assumption that Chan Chun-hung had seen the 2nd Defendant on a number of previous occasions and was not identifying a complete stranger. Even if that be wrong and there was a mis-direction, it was, in our view, not of itself sufficient to render the convictions unsafe or unsatisfactory.

7. Ground 2 relates to the direction that, where a person alleges fabrication of identification evidence, he

"is not really seriously challenging the ability of the witness to identify him or that he is likely to have made an innocent mistake."

The defences of mistake and fabrication are necessarily inconsistent, but a defendant is entitled to run both, if he sees fit. Complaint is made that the Judge placed too great an emphasis in his summing-up on the defence of fabrication to the detriment of the other defence. In emphasizing the fabrication defence to the jury he was merely doing what counsel for the 2nd Defendant had, reasonably, himself done: counsel emphasized mistake when making his submission of no case to answer to the Judge and, having failed on that, emphasized fabrication to the jury. The question is whether the alternative defence of mistake was sufficiently left to the jury, and we think that it was. Then we have to ask ourselves whether the passage cited detracted from the warning as to the possibility of mistake to such an extent that the jury would not give the warning proper consideration. This passage, when read by itself, cannot be criticised adversely, but we have to look at it in the context of the whole summing-up. We are satisfied that the jury must have been fully alive to the danger, particularly having regard to the fact, to which we must return later, that at one stage the witness mistakenly referred to the 1st Defendant as having been present at the time of the third incident.

8. Next it was submitted that the Judge failed to follow the guidelines set out in Turnbull (supra) in that he omitted to mention five specific matters. It must be emphasized at the outset (and counsel did not gainsay this) that the guidelines are what they are stated to be and are not statutory requirements - a fact which has frequently been overlooked. In every case one must have regard to the overall effect of the summing-up to ascertain whether the jury has been sufficiently put on its guard against a witness who may he honestly mistaken.  That having been said, it is submitted first that the Judge failed to mention that, even when a witness is purporting to recognize someone whom he knows, a mistake is sometimes made. Connected with this is the fourth complaint, that the Judge "failed to point out that an identification witness might be convincing although mistaken". We think that these matters mere sufficiently covered when the Judge said:

"Sincerity of recollection is not the final criterion. A witness may well believe that what he says is true and yet he may still be mistaken."

This recognizes that a witness will normally have to be both convinced and convincing before he will be believed. More than that, the jury must appreciate that the witness may still be wrong. Here that possibility was brought home to them.

9. Next under this head was the contention that the Judge failed to warn the jury that Chan Chun-hung's evidence of identification was unsupported or, alternatively, that if it was supported both witnesses might be mistaken. In his "thumb-nail sketch'' of the case at the end of his summing-up the Judge said in relation to the 2nd Defendant:

10. The only person who implicated him was the 4th victim. That was in truth the position and there was no real likelihood that the jury would have thought otherwise. Admittedly there was also the evidence of the victim in Count 3, who had initially identified the 2nd Defendant as having been involved in the second incident moments earlier and 30 to 40 yards away from the scene of the third incident, but no one could have supposed that that gave any substantial support to Chan Chun-hung, more especially when the witness eventually agreed that his identification in relation to the second incident was not certain. One of the two witnesses having admitted the possibility of mistake and the Judge having warned the jury that Chan Chun-hung might be mistaken, are do not think it was necessary for him to say expressly that several witnesses to the same identity can all be mistaken.

11. Finally under Ground 3 it was submitted that the Judge failed to state the reason for the need for caution in identification cases. We are in difficulty here in that the transcript at page 193.Q of the record is manifestly corrupt. It reads:

"As you are aware, there are few areas of law where a miscarriage of justice if likely to arise outside the field of identification evidence."

The Judge thereafter goes on to list some of the matters to be taken into account in assessing identification evidence, and it is likely that the passage should read:

".... more Likely to arise than in the field of identification evidence".

That would be a complete answer to the point sought to be made. However, taking the transcript as it stands, we assume the omission alleged and simply say that the omission was not of sufficient importance, either alone or in conjunction with any mis-direction there may have been in relation to Chan Chun-hang's acquaintance with the 2nd Defendant, to justify our interfering with the verdicts.

12. Ground 4 relates to the alleged failure to draw to the attention of the jury specific weaknesses in Chan Chun-hung's evidence of identification. Reliance is placed or Keane (1977) 65 Crim. App. R. 247 for the proposition that weaknesses in the evidence should be fully exposed. In view of the emphasis placed by counsel in his address to the jury on the possibility of fabrication of evidence against the 2nd Defendant, it is, as we have said, not surprising that the Judge did not deal with the danger of mistake as fully as he might have done.  Weaknesses there were to which the Judge did not allude specifically, but they were weaknesses of a kind against which the jury had been warned generally, e.g. the length of time the witness had to observe the offender. There was nothing in the evidence to justify a warning that any observation by Chan Chun-hung of the 2nd Defendant must have been impeded by other assailants. Chan's evidence was not always clear, but we are not persuaded that it contains any inescapable inconsistency. As to the witness's erroneous identification of the 1st Defendant as having been present at the third incident, the Judge dealt with the matter fully and reasonably suggested to the jury that it was nothing more than an honest mistake, which had been corrected. If the jury took a different view of the error, it must have weighed heavily with them and they would hardly require that the weakness be drawn further to their attention.

13. We were then referred to a passage in the evidence where Chan said:

"... because the first accused looked very much like the appearance of his younger brother and on the night in question he was standing by the entrance."

It was suggested that "he" there referred to the 1st Defendant and that the witness was maintaining his original identification. We think that is a mis-reading of what is undoubtedly an ambiguous passage, for counsel immediately went on to clarify the matter and elicited the answer that he was not saying the 1st Defendant was present in this incident.

14. In the event we thought that the issue of identification was fairly before the jury, and it was for them, and not for us, to decide whether Chan Chun-hung's evidence could safely be relied upon.

8th January 1982.