The Queen v. Wong Chi Hung

IN THE COURT OF APPEAL

1986 No. 604
(Criminal)

BETWEEN

Coram: Hon. Cons, V.-P., Kempster, J.A. & Penlington, J.

Date of Hearing: 23rd April 1987

Date of Judgment: 23rd April 1987

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J U D G M E N T

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Kempster, J.A.:

1. On 17th November 1986, following the verdict of a jury, Wong Chi-hung was convicted by Deputy High Court Judge Leong of the murder of Yu Sau-king and of robbery on the 15th July immediately preceding that date. Against those convictions he seeks the leave of this Court to appeal.

2. The salient facts established in evidence and the critical matters falling for the determination of the jury were encapsulated in four paragraphs of the Summing-up by the trial judge:

“On 15th July this year at about 4.40 in the afternoon a robber went into the premises of the Ocean Girls Beauty Parlour (I interpolate that we are informed that this in fact was a mens' barber's shop) at Li Yuen Street West, Hong Kong. Once he was inside, the robber said that he was going to the toilet but on the way there he suddenly turned around and produced a knife and he announced robbery. The occupants there at the time were the employees and 3 customers.

The robber threatened them with the knife and the employees were all told to move to the far end of the premises. The robber demanded money. Yu Sau-king was one of the employees there at the time and she pretended to get money for the robber. She went towards the main door. Instead of getting money, she attempted to open it to get out. The robber was alerted, dashed back, stopping her and accused her of trying to get out, which she denied. Nevertheless, the robber stabbed her once, injuring her, but she still went to get money and gave it to the robber before she collapsed on the floor.

The robber continued to demand money from the others. Money was thrown on the ground and he picked it up. The deceased died as a result of her injury before she could be taken to hospital.

The prosecution case is that the defendant was the robber who robbed the occupants of this beauty parlour and killed the deceased on that day by stabbing her with a knife when she tried to open the door. The defence is that the defendant was not there at all.

The vital issue in this case, members of the jury, turns on the identification of the robber.”

3. It was a relevant consideration for the members of the jury that the robber was on the premises for about 15 minutes. They were themselves afforded the opportunity of visiting the scene in order to assess the brightness of the lighting and given a careful warning as to the dangers implicit in identification evidence. No complaint is made of the adequacy of such warning. Instead, it is contended on behalf of the applicant that:

(1)   reference was wrongly made in the Summing-up to disparities between a statement which had earlier been given by the applicant's wife, whom he called to support an alibi, and the evidence which she gave in the witness box when that earlier statement had not been made in exhibit.

(2)   the trial judge misdirected the jury as to the nature and effect of the wife's evidence thereby failing to maintain a balance and inviting disbelief, and

(3)   he failed to remind the jury of a conflict in the police evidence in relation to the seizure of contact lense-cleaning fluid or, alternatively, as to the discovering of such fluid in the applicant's home.

4. It must not be overlooked when considering these ground that at a parade held ten days after the crime the applicant had been identified by no less then 6 eye-witnesses who were employed at and present in the beauty parlour when the events already recounted took place.

5. As to the wife's evidence the judge said:

"Members of the jury, it’s up to you whether to believe the (applicant's) evidence. He had called his wife as his witness, and she said that at the material time the defendant came home - the material day, I mean, the defendant came home some time after 4 and. before 5 p.m., and he stayed at home until after dinner when he went out to see a friend.  But under cross-examination, she admitted that her present testimony was inconsistent with the statement she gave to the police on 24th July when the police came to search the premises.”

The statement made on the 24th July was put to the wife to identify her signature.  She accepted that it was hers.  From that moment it was in evidence. Neither counsel for the Crown nor (counsel) for the defence sought to have it made an exhibit so as to be available to the jury.

6. An application has been made before us to rely on this document on appeal pursuant to section 83V(i)(a) of the Criminal Procedure Ordinance. Having looked at it we were satisfied that its admission would in no way assist Wong Chi-hung and the application was refused accordingly.

7. A disparity clearly existed between the evidence given by the wife in the witness-box, where she said that on the material day her husband had come home early telling her he had been to the doctor, and the evidence that she had given in her written statement when she said that it was just one of those normal days when unless he had been required to do overtime he would have come home at 5 o’clock.  The point can be made that she did not expressly admit that her present testimony was inconsistent because, when asked about the discrepancies by counsel for the Crown, she only made such admission by implications;  saying that she was frightened. But the implication was so clear that the relevant direction could in no way have misled the jury.  It is also urged on us, somewhat faintly, that the trial judge went on improperly to mention that there had been some conversation between the wife and her sister-in-law who had been in court.  Nothing in our view can turn on a reference to which the judge attached no significance.

8. The trial judge went on:

"Now you must also bear in mind that the inconsistencies in her statement to the police are not evidence of the truth. They only go to credit.  It is entirely a matter for you to decide in the light of all these matters whether her evidence in support of the defendant's alibi is true.”

The judge had given the usual warning to the jury at the outset, in quite unexceptionable terms, that anything that he might say in his Summing-up by way of comment was in no way binding on them and that it was open to them to reject such comment if they did not agree with it.

9. The quotations from the Summing-up just read are, in our view, entirely warranted by what has been shown to us in the transcript of evidence and no reasonable complaint can be made of them. As regards the suggestion that the earlier statement should have been exhibited we repeat and emphasise that at trial counsel for the defendant expressly eschewed any desire to have it put before the jury as an exhibit. There was no material irregularity in this context and the provisions of section 14 of the Evidence Ordinance were fully complied with.

10. As to the third and last point, which relates to the applicant's eye-sight, the man who committed murder and robbery was at one stage at least while in the beauty parlour, not wearing glasses but apparently able to see perfectly well what he was about. The same could be said of the applicant on his arrest. No one then examined his eyes to see whether or not he was wearing contact lenses though it was his evidence and that of his wife that he relied rather on refractive glasses. No contact lenses were found in his locker at his place of work or in his home. Nor indeed were any refractive glasses. All that were found were plain non-refractive spectacles. The applicant said in evidence that he found it useful to wear such spectacles in the course of his work and, as the judge pointed out, it was therefore important for the jury to consider whether at the times just mentioned he was wearing contact lenses to afford him full vision. There was uncontradicted evidence from a Dr. Clarke that the applicant was gravely myopic.

11. There was evidence that in the applicant's locker at work a container was found in a handbag that belonged to him. When examined by Dr. Clarke it was found to contain lubricant which would facilitate the wearing of contact lenses. The applicant, we should add, had said that on the day of his arrest his refractive glasses had been hidden away by his mates at work.

12. In this regard the trial judge said in Summing-up:

“You heard evidence that after the robber removed the spectacles, he did not stumble around nor did he behave in any way like a person short of vision and he could even pick up from the floor the money thrown there by the victim. If you accept such evidence - and it is a matter entirely for you - whoever the robber was, he certainly did not need any spectacles to get around, and the pair which he was seen wearing certainly was not for correction of his vision. Whether you come to this conclusion or not is entirely within your province.

Now Dr. Clarke had examined the defendant and said that the defendant suffered from severe shortsightedness and his vision, when uncorrected, would only enable him to see things within a distance of four inches from him and anything beyond that distance would be blurred.  Dr. Clarke said the defendant must wear corrective lenses.” 

And then to summarise this matter:

“- if you believe the evidence of the defendant and the evidence of his wife (that he never wore contact lenses and had not got any) then taking into consideration the evidence of Dr. Clarke on the extent of the defendant's myopia, the defendant could not have been the robber who was able to move around with ease without the aid of any corrective lenses.”

Finally he reminded the jury of the possible alternative inference that at the material times he was wearing contact lenses, which undoubtedly they drew, based on the discovery in the applicant's locker of the fluid container. Whether one or two police officers saw a similar container at the applicant’s home was neither had nor there.

13. In our view the Summing-up could not more fairly have stated the material issues for the determination of the jury or more adequately have reflected the evidence. Nothing suggests to us that the verdicts were unsafe or unsatisfactory. The application is dismissed.

Michael Ford (D .L.A.) for Applicant

Duguid for Crown