Wong Chi Tim v. The Queen

CACC000559/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 559 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 3rd October, 1972.

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JUDGMENT

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1. This is indeed a somewhat remarkable case. The appellant, aged 19, was convicted upon charges of unlawful possession of an offensive weapon in a public place and assaulting a police officer acting in the due execution of his duty. Upon conviction on the charge of possession of an offensive weapon he was discharged conditional upon him entering into a bond, in his own recognizance in the sum of $200, to be of good behaviour and to appear for sentence any time if called upon within the next two years, and upon the charge of assaulting a police officer in the due execution of his duty he was fined the sum of $250. He appealed against his conviction on both charges.

2. The case for the prosecution depended on the evidence given by the police officer, P.C. 7033 SIT Yuen-on. An attempt was made by the prosecution to introduce in evidence what was described as a voluntary statement taken under caution. That statement - if one may call it such - was obtained by a police inspector from the appellant within a matter of hours after he was recovering from a serious abdominal operation and was still under sedation. The magistrate, in the exercise of his discretion, in rejecting the statement as inadmissible, had this to say:-

3. The evidence which P.C. 7033 gave was this, and I quote from the record:-

In the result, the police officer's bullet, aimed towards the appellant's feet from a distance of 4 to 5 feet struck him in the stomach. He was taken to hospital in a serious condition. Whether the use of a firearm in such circumstances was lawfully justified is a matter which, no doubt, has been, or will be, considered elsewhere.

4. "Acting furtively" or "acting in a suspicious manner" are expressions very frequently used by police officers in the witness box and, in this instance, the police officer later sought to explain what he meant by saying that when the appellant saw him he attempted to run away. He described the appellant as being dressed in a singlet, long trousers and a pair of slippers. It was put to him that the appellant, dressed as he was, was not so attired as to be able to conceal an offensive weapon upon him. However, the police constable resisted any such suggestion. It was put to the police officer that what in fact had occurred was that the appellant had crossed the road in a hurry, emerging on to the pavement between two cars and in so doing he had accidentally bumped into the police constable's dog; that words had passed between the appellant and the police constable; that the appellant put out his arm in a gesture and (either deliberately or accidentally) brushed the police constable's right shoulder; that the police constable then unleashed the dog which then proceeded to attack the appellant; that the appellant ran for some short distance being still pursued by the dog; that the dog attacked the appellant; that the appellant then took off his belt to defend himself by striking out at the dog; that he did in fact so strike out and hit the dog; that he then took to his heels and ran; that the police officer gave chase calling upon the appellant to stop; that the appellant did so stop and turn round - and indeed put his hands up - and that the police constable then shot at him wounding him in the stomach. The police officer denied, seriatim. that there was any truth in any of the assertions put to him by way of cross-examination. However, those assertions constituted the defence as put forward by the appellant in giving evidence on his own behalf.

5. The belt that was being worn by the appellant at the time of the incident was produced in evidence at the trial. It was clearly a relevant exhibit and on the hearing of this appeal when I asked to see it I was informed that it had been destroyed. It would appear that in accordance with normal procedure, following upon the convictions and the order for forfeiture, the belt was delivered to Wong Tai Sin Police Station with the usual covering document; that document is endorsed with the words:-

"not to be disposed of under any circumstances within 6 weeks of the Order. In the case of an appeal, pending final determination of the appeal and subject to any further Order made by the Appellate Court."

An appeal was lodged within the requisite period and a written notification of that fact was sent to the Divisional Police Superintendent, Wong Tai Sin Police Station. Despite that notification, however, the belt was destroyed. It must be clearly emphasized that exhibits relevant to court proceedings must be safely secured and available for production on the hearing of an appeal.

6. However, I accept the evidence that the belt buckle, which was made of steel, had been sharpened and fined down and whilst not an offensive weapon, per se, Mr. Eddis, counsel for the appellant, concede that if in fact it was on this occasion being used unlawfully and offensively - and not, as Mr. Eddis asserts, used lawfully for defensive purposes - then both the charge and conviction of unlawful possession of an offensive weapon in a public place were, and are, valid. The obvious difficulty in this case lay in deciding which of the two entirely conflicting versions of the incident - that of the police officer or that of the appellant - was in fact true and, still more so, in determining whether the testimony of the police constable was such that the case was proved beyond reasonable doubt. It is to be borne in mind that this was not a stop and search operation conducted by a number of police officers searching persons in the street for offensive weapons. P.C. 7033 Sit Yuen-on was a police dog-handler who, at that time, was walking along a crowded street in broad daylight with his dog beside him. It was the appellant's contention that the root cause of the trouble was his accidentally bumping into the dog; the words that then passed between the policeman and himself, the movement of his hand in the direction of the policeman - a movement which the policeman might well have regarded as offensive and insulting - the unleashing of the dog and his subsequent attempt to defend himself. Mr. Eddis has submitted that the police constable's version of what occurred contained a number of inherent improbabilities. He has referred to the police constable's evidence of the appellant "acting furtively". He submitted that it was highly improbable that the constable, a dog-handler, would in fact have stopped the appellant in such circumstances and told him that he suspected that he was in possession of an offensive weapon and wanted to search him. He submitted that it was even more improbable that, in such circumstances, the constable being armed with a revolver and with a dog beside him, the appellant would have punched the constable in the stomach. He submitted that on the constable's own version that he had "whipped out his revolver" and warned the appellant not to go near him, it was highly improbable that the appellant should have ignored such a warning and continued to approach the constable in a menacing manner. He submitted that on the constable's own evidence it was difficult to believe that after the appellant had been fired at from a distance of 4 to 5 feet and actually shot in the stomach he would, in the constable's own words, have "raised his hands". On the contrary, it was far more likely that he would have dropped his hands and held his stomach. Finally, he submitted that on the simple balance of probabilities the version put forward by the appellant that the root cause of the trouble was the fact that he had unintentionally collided with the dog resulting in words being exchanged between himself and the constable, was a far more likely version as to what in fact occurred. In any event, he submitted, the facts were such that the case had not been proved beyond reasonable doubt.

7. For my part, whilst I am most fully appreciative of the fact that I did not have the opportunity both of seeing and hearing the witnesses give their evidence and of noting their demeanour, I am bound to say that I am forcibly impressed by what appears to me the cogency of the arguments put forward by Mr. Eddis as to the inherent improbability of much of the version of the events as put forward by the constable. The testimony of the appellant that the constable deliberately shot him whilst his hands were raised in the air is, no doubt, quite unbelievable. On the other hand, the basis and foundation of the defence put forward by the appellant was that what occurred was consequent upon the unfortunate collision with the dog, the words passed between him and the constable, the movement of his hand towards the constable, the attack then made upon him by the dog. It was his contention that he unbuckled his belt for the purpose of defending himself against the attack by the dog and that there was no question of an assault by him upon the police constable acting in the due execution of his (the police constable's) duty.

8. The circumstances in which an appellate court may interfere with the findings of fact of a magistrate have been the subject of a number of authorities; in Cheung Yu Hong v. The Queen⁽¹⁾ Mills-Owens, J. declined to accept the submission of the Crown that the verdict of a magistrate could not be disturbed if there was evidence to support it. He went on to say:-

"Such a submission is commonly made and its effect, if correct, would be to confine the functions of the appellate court, or the principles on which it is to act, to very narrow limits indeed. Prior to the amending Ordinance of 1949 (preparatory to the Revised Edition of the Laws of 1950) it was clearly provided that appeals should be by way of rehearing. That is no longer so, in express terms. But to adopt as a principle that the verdict of a Magistrate cannot be disturbed if there is evidence to support it, is, in my view, unwarrantably to elevate the verdict of a Magistrate to the status of the verdict of a jury."

9. In Lam Kau v. The Queen⁽²⁾ the Full Court, upon a reference to it for that specific purpose, considered at some length the circumstances in which an appellate court could properly interfere with the findings of a magistrate on issues of fact. In that case the Full Court, in effect, rejected the contention of the Crown that on an appeal against conviction based on findings of fact by a magistrate, that conviction could not be reversed unless it was affirmatively shown by, or on behalf of, the appellant that the verdict of the magistrate was unreasonable and could not be supported having regard to the evidence, and that it was not a valid ground of appeal that the verdict was against the weight of the evidence. The Full Court held that in such an appeal the findings of fact were at large save only that the presumption of innocence is no longer of any application. It went on to say:-

"... it will be open to the Appellate Court to consider whether in any particular case the appellant has been given the benefit of any reasonable doubt. The Appellate Court must however pay regard to the fact that the conclusions of the magistrate, so far as they depend on oral testimony, will have been arrived at on a basis the advantage of which is denied to the Appellate Court, that is to say, on a first-hand reception of the evidence from the witnesses in person. To that extent, and to the extent that the appellant can no longer rely on the 'presumption of innocence', the onus lies on the appellant."

Finally, the court went on to say:-

"But we cannot, in the absence of statutory provision to that effect, ..... say that as a general principle the onus rests upon the appellant to show that the conviction is wrong. It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction."

10. Whatever my own doubts as to the inherent improbability of much of the testimony of the police constable, bearing in mind the advantage occasioned to the magistrate by having himself heard the testimony of all the witnesses, I would not have felt justified in interfering with the verdict of the magistrate were it not for one additional factor. It is a sad reflection on the complete apathy and utter lack of interest by the residents in that area, in their ordinary civic responsibilities to further and assist the administration of justice, that despite the fact that this incident occurred shortly after mid-day in a crowded area and must have been seen by a considerable number of witnesses, subject to one exception, no one was apparently available or willing to give evidence, whether for the prosecution or for the defence. The sole exception was the appellant's aunt: she gave evidence as a witness for the defence. She was a hawker and she had a stall at the place where the incident occurred. She purported to see what actually occurred and her evidence, if believed, to a substantial extent corroborated and assisted the appellant. This witness had been earlier interviewed by the police and had made a statement to a police officer at the police station. Some ten days later, apparently as the result of an interview she had had with a newspaper reporter, she was again seen by the same police officer at the police station. A number of specific questions in relation to the interview which she had had with the newspaper reporter were put to her and her answers recorded. It is relevant to observe that that police officer was, in fact, the same officer who sought to take the statement from the appellant at the hospital a matter of hours after he had emerged from the abdominal operation; that was the statement which was rejected by the magistrate. It is true to say that material parts of the first statement taken from the woman at the police station are certainly at variance with the evidence which she gave in the witness box and, in fact, supported the version of events as put forward by P.C. 7033 Sit Yuen-on. Those contradictions formed a fruitful subject for lengthy cross-examination by Crown Counsel who appeared for the prosecution at the trial. It is relevant to observe that the statements put to her by Crown Counsel as appearing in the written statement were, in fact, denied by her as ever having been made by her. However, the police officer was called as a witness by the prosecution and confirmed that that was in fact the statement she made. What is, however, of material relevance and importance is that although this woman was illiterate and Cantonese-speaking, her statements at the Police Station were recorded in English. Quite clearly, they should have been recorded in Chinese characters and not in English. The accuracy of their contents as recorded would necessarily depend upon the skill and ability of the recorder and his own knowledge of the English language. It is, again, relevant to observe that the statement not only describes the dog as an "alsation dog" but even gives its sex as "female". It is difficult to believe that that was part of the statement made by the woman herself and one may wonder how much of the rest of the contents of the statement. were made on the basis of prior information obtained from P.C. 7033 and directly put to the woman by way of direct question and a single reply - an affirmative - by way of answer. The magistrate does not appear to have addressed his mind to the obvious difficulty created by the fact that the statements had been recorded in a language other than that spoken by the woman and the consequent accuracy or otherwise of the statements, as correctly expressing what the woman in fact said and, as a necessary corollary, the weight and value of the cross-examination by counsel of the woman on the contents of the statement. On the contrary, so far from considering the value of the statements in the circumstances in which they were taken, not only has the learned magistrate expressly disbelieved the woman's testimony and, therefore, its value as corroboration of the appellant's testimony, but he has gone on to say:-

"For the record, the use I have made of her evidence and previous statements is only by way of some confirmation or contradiction of the evidence of the remaining witnesses on specific material points."

11. The effect of an earlier statement made by a witness which is inconsistent with the evidence by him in the witness box is clearly and succinctly stated in Phipson on Evidence, 11th Ed. para. 1551 in these terms:-

"Evidential significance of statements.... In criminal proceedings the inconsistency goes to credibility and the earlier statement cannot be treated as evidence of the truth of its contents."

12. The previous statement made by the woman was clearly inadmissible for the purpose of "confirmation or contradiction of the evidence of the remaining witnesses on specific material points" and for the learned magistrate to have made such use of it was manifestly wrong. It must remain a matter of speculation as to what extent he did so make use of it and what effect such use of it had upon him, whether in discrediting the testimony of the appellant or in strengthening his view as to the credibility of P.C. 7033. In such circumstances, I am satisfied that it would be unsafe to allow this conviction to stand.

13. The convictions on both charges must accordingly be quashed and the Recognizance entered into by the appellant on the 9th June together with the fine imposed are set aside. The fine, if paid, must be refunded to the appellant.

Representation:

F. Eddis (Johnson Stokes & Master) assigned for Appellant.

Duckett, S.C.C. for Crown/Respondent.

(1) (1961) H.K.L.R. 738.

(2) (1962) H.K.L.R. 234.