The Queen v. Hung Fuk Lam

CACC000550/1987

BETWEEN

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

Date of hearing: 17th May, 1988.

Date of delivery of judgment: 17th May, 1988.

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J U D G M E N T

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Cons. V.-P, delivered the judgment of the Court:

1. On the 27th November last year the Applicant was convicted by His Honour Judge Moylan in the District Court on a charge of wounding with intent. He was sentenced to two years' imprisonment.

2. He now applies for leave to appeal against that conviction.

3. The offence took place on the 10th July last year. Its origin was most probably in a dispute in  a mah-jong school on the 8th July. On that day one Chan San Chow was playing with three other persons, one of whom went by the nickname of "Ah Keung". According to Chan Sau Chow Ah Neung refused, at the conclusion of the proceedings, to pay the money that he had lost. After a while, the other two followed suit and likewise refused to pay what they had lost.

4. The following day, that is the 9th, there was a second incident in which Chan Sau Chow met Ah Keung and another person nicknamed "Ah Far" during the course of which meeting Chan Sau Chow was punched twice by Ah Fai. The Defendant was present at that incident, but according to Chan Sau Chow he did not participate.

5. On the 10th July, that is the next day again, Chan Sau Chow collected some of his friends, including Chan Chi Wing in respect: of whom the charge was laid against the Defendant, to go looking for Ah Keung in the mah-jong school. That was at about half past two in the afternoon. They did not find Ah Keung there, and resumed the search at about 9 o'clock in the evening, extending it to various streets in the neighbourhood. It was while they were so engaged that the party was suddenly confronted by the Defendant, if indeed it was he. After some introductory aggression the Defendant produced a knife from beneath the folds of his shirt and then laid about him with it. He succeeded in wounding Chan Chi Wing, but the others, including Chan Sau Chow, managed to escape.

6. The only evidence that the person who welded the knife at that time was the Defendant came from Chan Sau Chow. He subsequently picked the Defendant out upon an identification parade.

7. This is not one of those cases where there can be any possibility of an honest mistake because the Defendant was known to Chan Sau Chow for at least. one month, being another regular in the mah-jong school. The question for the judge then was whether his identification was to be believed. Speaking of Chan Au Chow the judge said in his very careful Reasons for Verdict -

"(He) impressed me as a thoughtful, careful witness, and with one exception, an accurate one,

The judge later resolved to his own satisfaction the question that he thus suggested as an inaccuracy,

8. Mr. Grounds, who now appears for the Applicant, concedes that he could not possibly base an appeal on that aspect alone. He does however suggest that the question may perhaps assume some significance when taken in conjunction with his main ground of appeal.

9. Mr. Cross, who now appears for the Crown, admits for the purposes of this appeal that Chan Sail Chow has a criminal record - eight counts of false information to a pawnbroker in 1978 and two Counts of robbery, for which the total sentence was 3¹/2 years. in 1970. Unfortunately, through no fault of prosecuting counsel at the time that record was not apparent to him at the trial, and counsel did not inform the defending solicitor of he record as he would otherwise have done.

10. It is established that nowadays such a failure is a material irregularity in a trial, If authority is wanted for that it can be found, for example, in the case of Paraskeva^(l). This Court must therefore quash the conviction unless it is satisfied that no miscarriage of justice has in fact occurred. In other words, we must do so unless we are satisfied that the judge would have come to the same conclusion even had he known of Chan Sau Chow's previous convictions.

11. We have in the course of argument been referred to three cases in England where the appellate court was faced with a somewhat similar situation. In two instances the convictions were quashed, in the third the conviction was allowed to stand, the Court being satisfied that the verdict of the jury, by reason of the way the defence had been presented would not have been affected.

12. We do not propose to go into detail, for the individual circumstances of each case were different, and different from the present, and it is essentially upon individual circumstances that a decision of this kind must turn. We need only say that in the present instance we are, albeit after some hesitation, not persuaded that the judge below would necessarily have come to the same conclusion had he known of the previous record.

13. We therefore give leave to appeal and, treating this hearing as the appeal, we quash the conviction. We have no need then to express an opinion upon the other grounds of appeal. We would however like to hear counsel as to what further order, if any, we should now make.

(1) (1983) 76 Crim.App.R. 162

Representation:

Christopher Grounds instructed by D.L.A. for the Applicant

I.G. Cross, Gown Prosecutor for the Respondent