The Queen v. Chiu Yuk Ching and Another

CACC000516/1984

BETWEEN

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Coram: Roberts, C.J., McMullin, V.-P. & Silke, J.A.

Date of Hearing: 8 March 1985

Date of Decision: 8 March 1985

Date of handing down judgment: 4 April 1985

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JUDGMENT

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Silke, J.A.:

1. CHIU Yuk-ching and WONG Kim-fung were convicted of affray after trial. They were jointly charged with four other persons. Of those four, the 1st defendant was also charged with the offence of murder. CHIU was the 5th defendant - "D5" - and WONG was the 6th defendant - "D6”.

2. They sought leave to appeal against their convictions and, in the alternative, their sentences.

3. At the hearing, we granted the application in respect of conviction, allowed the appeals and quashed the convictions. We stated we would give our reasons late and this we now do.

4. On the 9th January 1984 an obstreperous group of customers congregated in the Jaw's Bar at the Peninsula Centre in Tsim Sha Tsui East. The 1st to the 4th defendants were the customers. The proprietress, the manager and a Mr. Law, designated as "Public Relations Officer", attempted to placate them. A free drink was given to them but they remained dissatisfied.

5. They made their continued dissatisfaction plainly known and Mr. Law so informed the owner. She directed her manager to ring a person who is described as a "casual" Public Relations Officer. This was D5. A telephone call was made to him shortly after 3:00 a.m. and he arrived 15 to 20 minutes later, accompanied by another man.

6. Having been informed of the difficulties, D5 went up to the table at which the obstreperous customers were. Shortly afterwards, several of those customers and D5 left the bar and went into the corridor. There was evidence that D5 and the others were jostling, on their way out.

7. A little later the manager was informed, by one of the waiters in the bar, that a fight was taking place in the corridor. The manager and Mr. Law went out to see what was taking place. It was his evidence that four or five men were beating up D5 and that D5 was bleeding as a result of the blows. He and Mr. Law attempted to stop the fighting but they did not succeed. They were told by the assaulting group not to intervene.

8. In the bar customers, not unnaturally, asked for their bills and left. The manager closed down the bar. He did not see D5 or any of the fighters again. The police were not called as the bar was operating without a licence.

9. At about the time that this was taking place a Deteotive Police Constable had gone to the Centre to collect his girl friend. She worked in a night club on an upper floor. Though he was off duty, he was carrying his gun with him. He waited at the ground floor lifts and met his girl friend. They intended to walk out of the Centre by the main entrance. As they made their way towards that entrance the Constable saw approximately twenty persons fighting in the corridor. When he saw them they were all running towards him at high speed - one group chasing the other. Some were armed with knives, broken bottles and stools or chairs.

10. The Constable told his girl friend to go back to safety and, according to his evidence, put his hand upon his gun, telling the group in a loud voice to stop and announcing his identity. They did not stop. He was knocked down by part of the leading group and he felt someone attempt to get his gun. He was pressed to the ground. The main group ran away leaving one man still attempting to take his gun. In the course of the general melee the gun came out of his holster and the man and the Constable struggled for possession of it, the man prevailing.

11. The man who took the gun was the 1st defendant. He ran out of the Centre chased by the Constable and, ignoring the Constable's orders to stop, fired a shot in the direction of the Constable. Another man, a friend of D5, was hit and died. The rest of the protagonists disappeared in the dark.

12. One of the security guards working in the building gave evidence which differed markedly from that the Constable in a number of particulars. He said that he had seen the Constable pull out his gun and' stand pointing it towards the running groups demanding that they stop. It was further his evidence that some of the running group passed by the Constable without interfering with him.

13. The Constable went on to say that, after he had telephoned the police, he saw in the corridor a man "loitering". This was D6 whom he recognised because he had seen him a little earlier in the chasing group with a wooden pole in his hand. He arrested him.

14. At an identification parade, held some six days after the incident, the Constable mis-identified an actor as a participant.

15. D6 gave evidence in his defence and did not contest a statement taken from him upon arrest.

16. The Crown's case against D5 was somewhat more complex. It was contended that D5, having been beater, up in the corridor, called upon his friends to come and exact revenge upon the assaulting party. But it was necessary for the Crown to base their case upon a continuing affray for there was no real evidence to establish his instigation of the around floor fight and none at all to show his participation in it. After the fracas had finished he was found coming out of a toilet by one of the Police Constables summoned by the DPC. With him was a Mr. Li who was also arrested but against whom no proceedings were instituted. D5's nose was still bleeding. When asked how he came by his injuries he said he fell down.

17. Dealing first with D6. While his statement placed him in the area at the time of that which was undoubtedly an affray it did not implicate him as a participant. He accepted that he went to the bar with D5; that he saw D5 leave the bar with a group of persons; that he was aware of an occurrence outside the bar, having been told of it by a waiter, and that he left the bar with the rest of the ordinary customers. He went on that he waited for D5 outside the main entrance of the Centre. He saw persons arrive at the Centre looking for D5. He went into the Centre with these persons. He saw fighting taking place, took no part and ran away.

18. In his evidence he amplified that statement by saying that one of the persons he saw arriving at the Centre, and whom he assumed to be looking for D5, was the deceased, whom he knew as a friend of D5. Some of the men he saw entering the building engaged in the fighting. He assessed the number of fighters to be between twenty and thirty. He tried to force his way out of an exit but was unable to do so. He was overtaken by the fighters. He waited until everyone had left before he let himself through the gate in the iron grille on the main door of the Centre. A little later he decided to go back to see if he could find D5 and it- was at that point he was arrested.

19. For D6 Mr. Hing Huang, who appeared both here and below, complained of the lack of a full Turnbull⁽¹⁾ warning in respect of identification evidence. He submitted that the identification was made in highly difficult circumstances and was unsafe.

20. There is substance in his complaint. If D6 were, as the Constable said, chasing the group which ran into the Constable, the view which the Constable had must inevitably have been obscured. In addition to that factor there was the direct conflict between the Constable and the watchman and the later misidentification. The combination of these factors throws doubt on the identification so that, in our opinion, it was necessary to direct the jury on the dangers of identification evidence.

21. While the trial judge did draw the attention of the jury to the mistaken identification we do not think that the direction which he gave was adequate since he gave no warning as to the dangers inherent in an identification and of the risk that an honest witness may be mistaken. Although D6 admits in both his statement and his evidence that he was in the corridor this was rot by itself sufficient to support the Constable's identification of D6 as a participant.

22. In the light of the circumstances surrounding the identification and the inadequacy of the direction on this issue we think the conviction of D6 to be unsafe.

23. As we have said, the issue as to D5 is somewhat more complex. The Crown's case was that he had counselled, procured, or in some way instigated, the melee which took place in the corridor. But that case was based on inference for there was no evidence to suggest that a telephone call was made by D5 to summon reinforcements.

24. We do not think that the evidence of the fight outside the bar was, of itself, sufficient to implicate the 5th defendant in an affray. It all tended to show that a group had, of its own volition, attacked the lone figure of D5.

25. It was Mr. Thing Huang's main contention that, on the evidence as it stood at the close of the prosecution case, the trial judge should have acceded to the submission of no case which was made.

26. There was evidence that D5 had telephoned the deceased, whom D6 had seen arrive with certain other persons at the Centre. D5 said in his statement, and repeated in his evidence, that he asked the deceased to come to have a look at his injuries. That was not enough to support the Crown's case.

27. The trial Judge did, and correctly, direct the jury that an affray can be a continuing offence, telling them that:

"It need not he confined to one sport, it may continuously spread, it may proceed along corridors, out into the street, along streets. People may join the affray, people may leave it, but it must be a continuing event."

The events of the evening separated themselves into two distinct incidents. It is doubtful if the beating up in the corridor could be considered as the start of the general melee which took place later in time in a different area of the building.

28. Part of the evidence given by the other defendants, in particular that of the 3rd defendant, might have led the jury to think that D5 was implicated in the later events. His version of the original fight outside the bar differed from that of D5. He referred to threatening words used by D5, which could have suggested D5's membership of a group of people. But the issue is should the jury have heard that evidence at all?

29. We have been referred to Cockley⁽²⁾ where the headnote reads:

"If a trial judge erred in law in rejecting a defence submission of no case to answer, the Court of Appeal cannot review the whole of the defence evidence or uphold the defendant's conviction by applying the proviso ....on the ground that no miscarriage of justice had occurred."

30. We are of the view that the evidence at the close of the prosecution case was not sufficient to put D5 to his defence.

31. The subsequent evidence, although it heightened suspicion of D5’s involvement in the affray, did not go further than that.

32. Consequently it is not necessary for us to express any view or the passage from Cockley⁽²⁾ above cited.

33. Finally: One matter submitted by Mr. Ming Huang applied to both applicants. The indictment was amended after the evidence for the defence had concluded. The indictment had contained only the names of the six defendants. It was amended to add, after those names, the phrase "together with other persons unknown". We find it difficult to understand the necessity or relevance of this amendment. While the generality of the evidence showed clearly enough that there were more people involved than merely the six named defendants, the count was sufficient as it stood.

34. It was contended that the addition of these words created a new count involving common design. Counsel says that he might have conducted his case differently if those words had been present from the outset. We do not agree that the amendment creates a new charge, had any effect upon the course or conduct of the trial or caused injustice to the defendants.

35. A further point was taken that the defendants were never placed in charge of the jury upon the amended indictment. The trial had proceeded without the amended indictment being put to the accused and their pleas taken thereon. The jury were fully aware of the amendment for it was made in their presence. No application was made to recall any of the witnesses. It is contended that the failure to re-arraign was a material irregularity and fatal.

36. As to amendment of an indictment in the course of a trial, Ashworth, J. in Balbir Singh Johal K Curmit Kelso Ram⁽³⁾ , at page 353, had this to say:

"    In the judgment of this Court, there is no rule of law which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise. The words in section 5 (1) of the Indictments Act 1915 'at any stage of the trial' themselves suggest that there is no such rule; if the suggested rule had been intended as a limitation of the power to amend, it would have been a simple matter to include it in the subsection.

On the other hand this Court shares the view expressed in some of the earlier cases that amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely it is that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby."

37. We would respectfully adopt these words. There was, however, no prejudice here.

38. In Radley⁽⁴⁾ , Lord Widgery, C.J. considered the situation when an amendment added a new count, and adopting Johal and Ram⁽³⁾, said at page 404:

"That leaves only one third matter to consider, and that is what is the proper procedure in cases like this. Lord Parker C.J.'s doubts in Martin, [1961] 45 Cr.App.R. 199, were, I have no doubt, inspired by the fact that, as he indeed said, the accused had already been arraigned and how was a new count to be included in the trial after arraignment and after the accused had been put in charge of the jury on the original counts. We can see no possible reason for saying that to arraign the accused again after the amendment is made can be prejudicial or irregular in any way. By arraignment, we refer of course strictly to the putting of the charge to the accused and asking him to plead to it. It is not suggested that when that has been done he has to be put in charge of the jury a second time or that a jury have to be empanelled again. It is perfectly permissible, if an amendment is made of a substantial character after the trial has begun and after arraignment, for the arraignment to be repeated, and we think that it is a highly desirable practice that this should be done wherever amendments of any real significance are made. It may be that in cases like Harden, [1962] 46 Cr.App.R. 90, where amendments are very slight and cannot really be regarded as in any way introducing a new element into the trial a second arraignment is not required, but judges in doubt on this point will be well advised to direct a second arraignment."

39. We accept here that the amendment was not prejudicial and that it was not one of substance. But we draw attention to and emphasize Lord Widgery’s comment that "judges in doubt on this point will be well advised to direct a second arraignment."

(1)    [1976] 3 All E.R. 549

(2)    [1984] 79 Cr.App.R. 181

(3)    [1972] 56 Cr.App.R. 348 (C.A.)

(4)    [1974] 58 Cr.App.R. 394 (C.A.)

Representation:

Ming Huang, Esq. assigned by DLA for both applicants.

M. Jennings, Esq. for Crown/Respondent.