Hui Kwok-hung v. The Queen

CACC000621/1981

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Coram: Roberts, C.J., McMullin, V.-P., and Li, J.A.

Date: 3 March 1982

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J U D G M E N T

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McMullin, V.-P.:

1. The appellant was convicted upon an indictment containing three counts. In the first count he was charged with the murder of MA Muk-cheong. The second and third counts were taken under section 17 of the Offences Against the Person Ordinance and in those he is charged with the unlawful and malicious wounding with intent to cause grievous bodily harm of the victims on the second and third counts, two young men KWAN Wah-wai and CHEUNG Luk-ming.

2. At the outset of the trial, upon the direction of the judge, another person who is charged together with him was acquitted and the trial proceeded against this appellant alone.

3. The prosecution case, at least in regard to its basic circumstances, is not in doubt. On the night of the 10th August 1980 some time after 8.30 p.m., four young men including the deceased and the victims in the 2nd and 3rd counts and another young man called TANG Chi-keung were watching television. They were seated on a bench opposite the Tung Shing Store and on the far side of what has been referred to as the main street Chakwoling. It is, in fact, a narrow, tortuous lane with buildings on either side. There was bright street lighting in the store. The question of lighting came prominently into issue and I shall return to that later.

4. The case for the prosecution rested primarily upon the evidence of the three young men, Tang, Kwan and Cheung, but principally upon that of Kwan and Cheung who were the only persons who purported to identify this appellant.

5. It is common ground that a crowd of young men approached the Tung Shing Store on the night in question and that after a brief exchange between members of that crowd, a most vicious assault was launched against the deceased and the other three young men.

6. In the course of the ensuing melee, MA Muk-cheong received the injuries from which he died. There was one fatal wound, a stab wound in the left side of the chest which penetrated the chest wall and cavity and severed the aorta.

7. Kwan received seven injuries of a more superficial nature which, however, compelled his being hospitalized for a couple of weeks. Cheung received a comparatively mild injury on the left side of his back and on the shoulder. He too was admitted to hospital and released two days later.

8. It was evident that the vital issue in the case was the issue of identification and it is in relation to that issue that counsel for the defence, Mr. Bharwaney, has mounted a spirited attack on the evidence both in the court of trial and at the hearing of this appeal.

9. The witness Tang did not purport to identify anybody. The account given, of what occurred, by Kwan and Cheung, although roughly similar to that given by Tang, included not only the identification evidence but also evidence concerning the state of lighting in the area which went somewhat beyond that given by Tang.

10. I should mention at this point that a submission of no case was made at the conclusion of the prosecution case and was overruled by the trial judge. The judge was well apprised of the fact that identification was the central issue. He made that clear to the jury and in a number of places referred to the evidence relating both to the existing state of the lighting and to the estimates given by the separate witnesses of the period of time involved in the whole event.

11. Tang described the lighting by saying that there were two street lights in the Tung Shing Store which were alight at the time. That is evidence common to all three witnesses. Kwan said that there were those two lights and also a light up some stairs, which would be a few yards to the right of the young men sitting on the bench. It was a naked bulb which, however, he agreed would not shed much light upon the street below.

12. Cheung referred to the street lighting in the store and he added that there was also a light in the Tung Shing Store, above the store itself, coming from a window. There was also, he said, a light on the building behind the bench on which the young men were sitting, and he claimed also to have been able to recognize the features of this appellant by virtue of lighting in another store, which is not visible in any of the photographs but which would be somewhat to the left of the building shown in photograph 21D and just beyond the Tung Shing Store but out of sight in the photograph.

13. Both Kwan and Cheung were called to an identification parade 5 days later, on the 15th of August and both picked out this appellant as being one of the attackers who had approached them on the night of the 10th of August.

14. The Crown's case was clearly based upon the notion of common design. There was no secure evidence from any of the witnesses to identify this appellant as being the person who had inflicted the injury upon either the deceased or the other two victims. The nearest we come to that is in the evidence of Cheung who said that as he ran he saw somebody aim a blow either at Ma, the deceased, or at Tang, the boy who had fled and got away unscathed. Common design, therefore, was the basis of the Crown's case.

15. Mr. Bharwaney first asks us to say that the judge should not have submitted the case to the scrutiny of the jury. He should, counsel says, have taken the case away at the close of the prosecution case because the quality of the identification evidence was so poor. There is nothing in that point. A judge will only take a case from the jury where the evidence of the prosecution is so wanting that it can be said that some material particular has been wholly omitted by the witnesses who were supposed to support the charge, or else that the testimony of the witnesses who purported to support the charge has been so shaken by cross-examination that the judge is of the opinion that no reasonable jury could convict thereon. That is clearly not the case in the present instance. There was evidence to go to the jury and the judge was right to leave it to them.

16. Then it was said that the judge had failed to direct the jury sufficiently as to the demeanour of the principal Crown witnesses especially Cheung and Kwan. They had both given evidence which might seem surprising in that they alleged that despite the terror of this event, they had remained calm and apparently undisturbed throughout, although, of course, endeavouring to flee. This testimony must be considered against the background of these young men. Either it could be regarded as bravado, a disinclination to admit to fear when giving evidence, or else it is possible that they are not unfamiliar with scenes of this kind. The point that counsel makes is not, in our opinion, of substance because the question of demeanour was one which the jury must have had in their minds, more especially because, although he did not enter into it in detail, the judge referred them to these answers given by the witnesses.

17. Mr. Bharwaney's point on this was that the judge did not directly relate these answers to the question of the witnesses' credibility. That, however, was so obviously a question of common sense that we think it was not necessary to do so.

18. Then it was said that the judge failed to give a sufficient warning to the jury on the identification evidence, or a warning in clear terms, but instead read either from text books or case reports. It appears that the judge, evidently endeavouring to preempt an argument familiarly made, decided to go to the fountain head in this case. He recited passages from the head-note in a leading case of Turnbull. We do not think that that course was, in any way, objectionable though it may be unusual. All the guidelines which are mentioned in Turnbull were put before the jury in these quotations and we do not think it can be said, as counsel asks us to say, that in doing what he did, the judge was inviting the jury to regard his warning as a dry academic exercise which they did not need to pay great heed to.

19. It is then said that the direction might have been confusing because the judge mentioned the case of accomplices as the kind of case in which warnings were necessary in addressing a jury. That was an unnecessary embellishment of his summing-up but we do not think any confusion can have occurred. It is clear that the judge was pointing out that there are exceptional circumstances when the law requires exceptional caution on the part of a jury. There was a brief break in the course of the summing-up, and when he returned to court he directed them not to pay attention to the question of accomplices since there was no such question arising in the case before them.

20. The only grounds upon which Mr. Chan was called to answer were the 4th and 5th grounds of appeal. The 4th ground, in fact, involves two matters. It is said that the trial judge failed to direct the jury sufficiently to examine closely the circumstances under which the identification by each witness came to be made. That is a ground relating to the general circumstances of the event including the important features of the light available and the time occupied.

21. I have deseribed already what the two principal witnesses said about the lighting. The judge appears to have made one factual error in his summing-up on that question. He suggested that the witness Cheung had said in evidence that there was street lighting in the immediate vicinity of the store. That was not so. Cheung's evidence was that there was street lighting - presumably in Chakwoling - but none in the vicinity of the store. In the end, the evidence as to the lighting is not affected by that misdirection because the prosecution witnesses, all three, agreed that the main source of illumination was the strip-lighting within the store and the judge warned the jury, more than once, that they should consider that the lighting outside the store was not anything like good.

22. There were also some questions raised as to the time involved in the event. Various estimates were given. Kwan suggested that it might have taken one minute from the first approach of the crowd to the time when they all fled and were attacked. Cheung put it at about 30 seconds although in an earlier answer he had mentioned a period of 10 minutes which does not appear to relate to any other part of the case and may, perhaps, refer to a point in the action at which he had taken refuge in a hut.

23. The judge made a small mistake on that matter when he referred to an estimate of 2 minutes, but, again, it does not appear to be material because the basic testimony of all the witnesses was that the event was very rapid and could have occupied little more than a minute at the very outside.

24. A possibly more serious objection under this ground was that the judge failed to direct the jury sufficiently on the discrepancy in the description of the appellant given by Cheung to the police and the actual appearance of the appellant on the night in question, and later in court. This turned upon the point whether the appellant had a beard, or possibly a mustache, on the night in question, a feature which might have been expected to be prominent in any description given by the victim witnesses to the police shortly thereafter.

25. Cheung was referred to a police statement, which he agreed he had made, and in which it was suggested he had told the police that the man he described as his attacker had long hair and a beard. He did not give evidence to that effect and when referred to the statement, he said that the police had made a mistake on the matter and that what he had said was that the appellant had been wearing a small mustache some 1½  months prior to the 10th of August on an occasion upon which he, the witness, had seen the appellant in a restaurant. That was, he said, the only other occasion upon which he had seen him.

26. The statement that he made to the police was not produced in evidence. In the end, his evidence amounts to his saying that he did not notice if the appellant had either a beard or mustache on the night of the attack and that the person he had seen in the restaurant 1½  months before had a mustache. However, it was put to him that in his police statement, he, originally, told the police that the assailant had a beard and long hair. As to this he said, in evidence, that the police were mistaken. We do not think that this can be put any higher than that it reflects somewhat upon the accuracy of his description.

27. The question whether "beard" and "mustache" are the same thing, as rendered by a single Chinese character, was never explored. Since the defence did not seek to introduce the statement in evidence any importance which the distinction might have assumed was, therefore, eliminated from the case, and the defence were, in effect, stuck with the answer which the witness gave.

28. We find, therefore, that there is nothing in the 4th ground of appeal.

29. The fifth ground is that the learned judge failed to remind, or sufficiently to remind, the jury of the specific weaknesses which appeared in the identification evidence, and particularly that he failed sufficiently to warn or remind the jury that the quality of the identification evidence in this particular case was poor.

30. What Mr. Bharwaney urged upon us, under this ground, was that the judge, when giving his ruling, although he had underlined the fact that the identification was under difficult cinqumstances, nevertheless, did not accede to the application of no case. What counsel says is that in so describing the evidence the judge was really saying that it was most unsatisfactory. Counsel urges us to say that he should have put the matter to the jury in some such manner. That cannot be so since, if the judge had really thought that the evidence was most unsatisfactory, we cannot believe that he would not have removed the case from the care of the jury.

31. The judge was at pains, as Mr. Chandler has pointed out, to emphasize on several occasions, some six or seven occasions in all, the dangers inherent in the identification evidence. There can be, no doubt, that it was identification under somewhat difficult conditions. It was after dark. The only secure evidence concerning the lighting is that there was fluorescent strip-lighting in the store. The backs of the attacking crowd were to the light, and all the witnesses said that the attackers were seen in silhouette. Nevertheless, these difficulties were sufficiently stressed by the judge in the course of his summing-up. The relevant warnings were given along the guidelines in Turnbull. It was entirely a jury matter thereafter. In this case the jury was not given the advantage of any evidence from the side of the defence.

32. For these reasons we do not think that there is substance in the appeal and the appeal against conviction must therefore be dismissed.

Representation:

Mohan Bharwaney (D.L.A.) assigned for appellant.

Chandler, for respondent/Crown.