Cheng Pak Chang v. The Queen
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CACC000061A/1979 [Reference to Court of Appeal by Governor.]
Coram: Roberts, C.J., Cons, J.A. & Yang, J. Date of Judgment: 16 May 1980 ----------------- JUDGMENT ----------------- Roberts, C.J.: Introduction 1. CHENG Pak Chang was convicted of murder on the 5th January, 1979 and sentenced to death. 2. He sought leave to appeal against his conviction, but his application for leave was refused on the 13th July, 1979. 3. In accordance with Clause XXIV of the Hong Kong Royal Instructions, the Governor is obliged to seek the advice of the Executive Council as to whether or not to reprieve any offender who has been sentenced to death, which remains the statutory mandatory punishment for murder. 4. Among the papers which are prepared to assist members of the Executive Council to tender advice to the Governor is a Social Enquiry report. 5. Such a report was prepared in relation to CHENG Pak Chang by Mrs. Miranda CHUNG, a probation officer. 6. This report contained the following passage -
7. Counsel who had appeared for the Crown at the trial and on the appeal, was disturbed because that passage suggested that she had seen her mother being attacked by the prisoner, whereas her evidence at the trial was that she merely heard noises but had not seen any attack with her own eyes. 8. Counsel for the Crown thereupon obtained from the probation officer a statement of her recollection of conversations which she had had with Miss LUNG. This statement corrected the passage quoted above, to the effect that the word "noticed" should read "believed". This did accord with what Miss LUNG had said in evidence. However, according to Mrs. CHUNG's statement, what Miss LUNG said to her differed in various other respects from the evidence which she had given at the trial. 9. His Excellency the Governor, therefore, referred the matter to this court, pursuant to the provisions of section 83P(1) (a) of the Criminal Procedure Ordinance (Cap. 221) in the following terms -
Summary of trial 10. About 10.30 in the morning of the 2nd May, 1977, LUNG Wan-ying ("Miss LUNG"), then aged just under 12 and now aged nearly 15, was present in premises at 174 Nam Cheong Street with her mother and small brother. She was sitting by herself in the middle room of the flat, when she heard the bell ring and the front door open. She heard a man talking to her mother and looked out from her room. She described how she was sitting on the wooden threshhold of her bedroom door, from which position she had an uninterrupted view of the front door and could observe the man who was talking to her mother. 11. After a short conversation with her mother, the man left. About half an hour later there was another caller at the flat. The front door was opened again and Miss LUNG heard a voice very similar to that of the man who had called earlier. She then heard what she described as her mother being "muffled". She went outside her room but could not see her mother or her small brother, or anybody else. She became frightened and ran out of the flat, shutting the door behind her. She made a call to the police and phoned her father. The police arrived soon afterwards and had to force their way into the flat. As they were doing so, a man's voice was heard inside but when they broke into the flat there was no man there. The small brother was standing just inside the doorway covered in blood and the mother was found lying on the ground in a dying condition, having received at least 25 blows to the head with a heavy blunt instrument. 12. On the 21st March, 1978, the defendant CHENG was identified at an identification parade by Miss LUNG as the man who had visited the flat on the morning of her mother's murder. She had previously attended two other identification parades; the defendant had not been present at either nor had she identified anybody on either occasion. 13. The day before the identification parade, i.e. on the 20th March, 1978, the defendant had made three statements to a police officer. The first dealt with his background and life history. The second, made by the defendant after caution, contained an admission that he had killed the mother and injured the son. The third statement contained supplementary questions and answers, designed to clarify matters contained in the second statement. 14. Thus, the evidence against the defendant rested wholly upon identification and confession, both of which are kinds of evidence which must be subjected to careful scrutiny and accepted with caution. Present Proceedings before Court of Appeal 15. Crown Counsel put before us for consideration the various items of evidence as to which it was said that Miss LUNG had given a version to Mrs. Miranda CHUNG, which differed from that which she had given in evidence; also one matter which arose from something alleged to have been said by Miss LUNG's father. 16. We permitted Miss LUNG to be called and to be led in evidence by Crown Counsel, her evidence being confined to the various supposed discrepancies. She was cross-examined by counsel for the defendant and re-examined by counsel for the Crown. 17. We also permitted Mrs. CHUNG to be called to give evidence in relation to those parts of her statement with which Miss LUNG disagreed. Mrs. CHUNG was examined by counsel for the defendant, cross-examined by Crown Counsel and re-examined by counsel for the defendant. Points of dissimilarity. These may be summarized as follows:-
Dissimilarity 1. Did Miss LUNG see the defendant for the first time on the day of the murder? 18. The effect of her evidence at the trial was that she recognized CHENG as someone whom she had seen more than once some years previously, when he came to the flat to collect cloth. 19. She agreed at the trial that, in a statement to the police on the day of the murder, she said that she had not previously seen the man who had visited the flat. She explained this by saying that she did not recollect him until after the identification parade at which she identified the defendant. 20. She insisted at the trial that she did not identify him because she remembered him as having visited the flat before; it was only after her identification that the fact that she had seen him on previous occasions came into her mind. 21. It was put to Miss LUNG, when she gave evidence before us, that she had told the probation officer that she could not remember the defendant coming to the flat before the murder but that afterwards her father told her that the defendant had come there many years before. 22. It was also suggested to her that she had told Mrs. CHUNG that she had never seen the defendant before the day of the killing and that even now she could not remember seeing him before that day. 23. Miss LUNG agreed, in evidence before us, that her father had told her that the defendant had visited the flat on a number of occasions before the killing, but insisted that this was a long time after the identification parade. 24. It is to be noted that, later in the day on which she identified the defendant, she made a statement to the police, a copy of which was produced in evidence before us, in which she said that she recalled the defendant having visited the premises before the day of the murder. 25. She agreed that she had told Mrs. CHUNG that she was now not sure that she could remember the defendant coming to the premises before the date of the murder. 26. During his summing-up, the judge directed the jury as to the approach which they should adopt in relation to the identification of a person previously known to the identifier. He warned them that on some occasions an identifier can be fortified by previous knowledge, but that on other occasions it is possible that a previous visit to the flat could be confused in the mind of the identifier with the visit on the day concerned. 27. What view would the jury have taken at the trial in January, 1979, if Miss LUNG had then given evidence to the effect that, although she had been sure, when she identified the defendant in March 1978, that she had seen him before the murder, she no longer thought she had seen him before? 28. The evidence as to identification by the girl at the identification parade would, in our view, not have been weakened. Indeed, it could be argued that the value of it might have been strengthened, since the danger of her having identified him because he had been at the flat some years before and not because he was there on the morning of the murder would have been removed. 29. On her evidence, her identification at the parade was not based on having seen him before. It was only subsequently that she thought that she had done so. Over two years later she is uncertain. Dissimilarity 2. What was the position from which Miss LUNG observed the defendant when he first visited the premises on the morning of the murder? 30. In her evidence at the trial, Miss LUNG said that she was sitting down in her bedroom to the left of the doorway, just inside the door on what was described as a "sill" which was a raised wooden threshhold which ran across the doorway of her bedroom. 31. She said that she observed the defendant on his first visit to the flat by pushing aside a cloth which was hanging down over the doorway. She said that she did not get up from that position before the man left the flat. 32. It was put to her in evidence before us that she had told Mrs. CHUNG that she had stepped out of her room into the corridor. She admitted she had done so and that Mrs. CHUNG had accurately reported what she had said. 33. She explained the discrepancy between her evidence at the trial and her statement to Mrs. CHUNG by saying that what she had meant to say at the trial was that she had remained within the same area and had not left it. 34. Before us, she indicated on a photograph of the flat that she had stood at the entrance to her bedroom, partly inside and partly outside the room. 35. This does not seem to be more than a minor difference. Whether she was sitting or whether she was standing, her view of the defendant during his first visit to the flat would have been more or less the same. If anything, it would have been better if she had been standing. 36. It is hardly surprising that, three years after the event, a minor discrepancy of this nature might appear. Dissimilarity 3. Was there anything between Miss LUNG and the visitor to obstruct her view of him? 37. At the trial Miss LUNG testified that there was nothing to obstruct her view of the man who entered the flat. 38. It is to be noted that her bedroom door is on the opposite side of the corridor to the main entrance to the flat and that she would have had an uninterrupted view from her doorway to the entrance, unless there were something placed in the corridor to obstruct it. 39. She denied that she had told Mrs. CHUNG that the man might not have noticed her because of the machines in the corridor and thus could not see her very clearly. 40. Mrs. CHUNG assured us that she had accurately recorded this part of the conversation. 41. This is the first time it has been suggested that there were machines in the corridor which could have obstructed the girl's view. The photographs tendered in evidence did not suggest this and we are inclined, on this matter, to prefer the recollection of Miss LUNG. After all, at that stage of her dealings with Miss LUNG, Mrs. CHUNG was not to know that the exact words which the girl used in their conversations might become of importance; and we observe that her notes of their interview make no mention of this matter. Dissimilarity 4. When Miss LUNG left the flat to seek help, did she see anyone? 42. At the trial Miss LUNG testified that she did not see anybody as she hurried from the flat, after hearing her mother being "muffled". 43. It was put to her that she had told Mrs. CHUNG that she had seen someone in the toilet as she left the flat. She denied this and said that she had not seen anyone there but had judged from the noises which she had heard that there must be somebody in the toilet. 44. Mrs. CHUNG agreed that Miss LUNG might have said something on those lines during the relevant telephone conversation between them, and that she might have recorded what Miss LUNG said inaccurately, in that Miss LUNG might have said that, from the noises, she had assumed the presence of someone in the toilet. Dissimilarity 5. Had the defendant entered the premises on a previous occasion to collect machines which her father had sold to a relative? 45. When further enquiries were made on this subject, the father denied that the defendant had helped to collect any machines or that he had said anything of this nature to the probation officer. 46. Miss LUNG told us that machines had been sold in about 1976, but that they had been transferred to other premises sometime before they were sold. 47. Neither counsel wished to pursue this matter, which at most would have provided a further instance of a previous visit by the defendant to the premises. Conclusion 48. As will be seen from the earlier parts of this judgment, Dissimilarity 5 was not pursued. Dissimilarity 4 has been explained and we are satisfied that there was nothing in it. As to Dissimilarity 3, we accept the explanation given by Miss LUNG. We do not regard Dissimilarity 2 as of any significance. 49. This leaves only Dissimilarity 1. Do we feel that the fact that Miss LUNG is now uncertain as to whether or not she saw the defendant before the date of the murder is a matter of such significance that we should regard the conviction of the defendant as unsafe and unsatisfactory? 50. When the matter came before this Court in July of last year, we were satisfied that the conviction was not unsafe. Although it depended, as has been indicated, wholly upon identification and confession, the jury were fully and carefully directed and we saw no reason to disagree with their verdict. 51. The jury heard that Miss LUNG, on the day of the murder, had told the police that she had never seen the man who visited the flat before. They also knew that she had changed her mind about this shortly after she had identified the defendant. We do not think that, if they had been told that she was now uncertain this would have caused them to come to a different conclusion. 52. In is apparent that Miss LUNG had approached the identification with the greatest care. At two previous identification parades she had identified nobody, though she had pointed out one man as being similar to the man she had seen at the flat. Only at the third parade, where the defendant was present for the first time, did she pick anyone out. 53. The approach which an appellate court should adopt is set out in YU Yuk-kwong v. The Queen (1) in which this court decided that it was obliged by the authorities, where fresh evidence is adduced, to put itself in the shoes of a fresh jury, not in the shoes of that jury which actually tried the case. 54. When this appeal came to us in July of last year we were satisfied that, had we been the trial jury, we would have come to the same conclusion as they did. The only discrepancy of significance which remains does not lead us to a different conclusion. 55. Since, by virtue of section 83P we must treat the reference for all purposes as if it were an appeal by the defendant, we formally dismiss it. 56. We would like to add that we regard this as an entirely proper use of the power of reference and a tribute to the vigilance of the Attorney General that he should have wished to ensure that this Court should have an opportunity to consider the effect of this additional evidence. Representation: David G. Sparrow (D.L.A.) for appellant F. Stock for Crown (1) Criminal Appeal No. 1099 of 1978 |