HKSAR v. Cheung Oi Hin

CACC233/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 233 OF 2007

(ON APPEAL FROM DCCC NOS. 143 and 329 OF 2007)

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Before :  Hon Stuart-Moore VP, Ag CJHC, Suffiad and Lunn JJ in Court

Date of Hearing : 4 August 2008

Date of Judgment : 11 August 2008

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J U D G M E N T

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Hon Lunn J (giving the judgment of the Court) :

1.The applicant seeks leave to appeal against his conviction in the District Court by Deputy Judge Johnny Chan of a single count of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212 and against the sentence of five years’ imprisonment, imposed upon him in consequence of his conviction. 

The trial

2.The applicant stood trial jointly with three co-defendants on a charge alleging that they, together with persons unknown, on 13 November 2006 at Yan Lok Square, Yuen Long in the New Territories had unlawfully and maliciously wounded Wu Hok Lam with intent to do him grievous bodily harm.  All four defendants pleaded not guilty.  The 4^th defendant was acquitted after the judge had ruled “no case to answer” in his case.  The applicant gave evidence and called one witness in the defence case.  The 3^rd defendant did not give or call evidence.  At that stage, and on his plea of guilty on re-arraignment, the 2^nd defendant was convicted of the charge. 

The prosecution case

3.The prosecution case at trial, which was not disputed, was that at about 11:30 p.m. on 13 November 2006 Mr Wu Lok Lam was attacked by a group of men armed with water pipes, wooden batons and knives as he sat alone at a table situated on the pavement of a cooked food stall at Yan Lok Square, Yuen Long.  The sound of hurried footsteps alerted him to their advance towards him and he ran away in an attempt to escape.  However, he was unsuccessful and having received a blow to his head, which caused profuse bleeding, he fell to the ground in which position he received further blows to his body with weapons, in particular his lower limbs. 

4.Although Mr Wu Lok Lam testified of the circumstances in which he had been attacked and of his subsequent identification of persons at identification parades in testimony, he resiled from the written statement that he had made in which he asserted that these persons were his assailants.  In the result, he was declared an hostile witness and he was cross-examined by counsel for the prosecution. 

5.A party of six police officers in uniform came upon the scene of the attack as they were performing patrolling duties to prevent theft from parked vehicles.  They approached the Square from the direction of Hong Lok road.  Police constable 5540 (PW2) testified that he had seen a group of about 10 or more men armed with pipes and wooden batons attacking a man who was sitting on the ground about 15 metres from where he stood.  He said that the scene was lit by streetlights, electric bulbs strung from them and lighting from the restaurant.  He moved towards them and shouted out telling the attackers to stop.  In response the attackers fled in different directions.  He chased after two men who were nearer to him who fled along Kau Yuk Road towards Hong Lok Road.  Ultimately, he caught up with one of them, the applicant, and forcibly placed him under arrest. 

6.PC 5540’s evidence of the conduct of the applicant, in particular during the pursuit was in dispute at the trial.  He said that when he first saw the applicant and the other man that he had subsequently chased he was standing about 1 metre from the victim of the assault.  He did not see either of them hit the victim.  During the pursuit, in which time he had never lost sight of the applicant, he had shouted out : “Police! Freeze!”  Each of them had dropped a glove to the ground, which gloves he identified as depicted in photographs taken subsequently where they lay on the ground.  One glove was black and the other white, although he was unable to say which glove the applicant had dropped.  He said that when he caught up with the applicant from behind he pushed him against a fence but when, in response, the applicant had struggled he pushed him to the ground and handcuffed him with his hands behind his back.  Then, he arrested him for inflicting serious wounds on the victim, after which he administered the words of caution.  In response, the applicant said :

“Sir, it’s nothing to do with me.”

7.Other police officer colleagues of PC 55440 in the patrolling party testified that they too had seen a group of men, some of whom were wearing gloves, attacking the victim with pipes and batons.  Following the intervention of the police party some of the attackers boarded a vehicle and left the scene.  The 3^rd defendant was found at the driver’s seat of another vehicle on which was found a glove, three metal pipes and a wooden batons.  The rear number plate was partially covered with a piece of paper. 

8.PC 5540 said that after the applicant had been taken back to Yuen Long police station and whilst they were in the Report Room the applicant claimed to him that he had been hit and knocked down by a vehicle in Yan Lok Square and had shown him a fresh abrasion to his left knee.  He had not seen that happen during the time that the applicant had been in his sight at the scene of the attack or during the pursuit.  He reported that matter to the Duty Officer, but he was unable to say whether or not the applicant was taken to Po Oi Hospital. 

9.There was no dispute that the victim had suffered a laceration to his head, right shin and left ankle and fractures of his left tibia and fibula.  The tendons of his left ankle were injured.  He was detained in hospital for seven days.  As a result of his injuries, he was unable to continue his employment as a butcher. 

The defence case

10.In his evidence the defendant denied knowing his co-accused or of being a party to the assault on the victim and explained that he was present at the scene of that assault because he was on his way to visit his friend, Wong Kwok Wai, at Flat C, 1/F, Lee Fat Building, in Yan Lok Square.  As he turned into the Square he saw a group of people rushing towards him holding weapons in their hands.  He was scared and in response he ran back in the direction of Kau Yuk Road from whence he had come.  As he was about to turn into Hong Lok Road someone bumped into him causing him to go into the road where he was hit by a car and fell.  As a result, his knee was injured. 

11.In cross-examination, he testified that he had told a police officer, albeit not one of the arresting officers, that he was present at the scene of the assault because he was on his way to visit his friend whose name and telephone number he supplied.  He did not hear the police officer shouting out “Stop!”, nor did he throw away a glove.  Once he became aware that the person who had grabbed hold of him was a police officer he ceased to struggle. 

12.Mr Wong Kwok Wai testified that he did live at Flat C, 1/F, Lee Fat House, Yan Lok Square.  He had known the defendant for 11 or 12 years.  On the morning of 13 November 2006 he had met the defendant and later, by telephone, it was arranged that the defendant would come over to his home to play video games in the evening at some time after 11 p.m.  However, the defendant did not keep that appointment.  He had been asked to give evidence by the defendant in a telephone call at noon on the day in which he gave evidence. 

Reasons for verdict

13.The judge said that he found PC 5540 to be an “honest and reliable” witness.  In particular, he accepted his evidence that he had seen a group of men attacking the victim at a distance of about 15 metres, that the applicant was standing within a metre of the victim and that after he had shouted out “Stop!” the applicant had begun to run away.  Furthermore, he stated that he accepted the evidence of PC 5540 that he had seen the applicant discard a glove during the chase near the junction of Kau Yuk and Hon Lok roads, from which place the black and white gloves had been recovered subsequently.  He accepted his evidence that the applicant had not been involved in a collision with a car whilst he was in his sight. 

14.Having acknowledged that the applicant was of good character the judge stated that he found the applicant to be a “dishonest and unreliable witness” and rejected his evidence and explanations to the police.  In particular, he rejected his testimony that he was an innocent passer-by in Yan Lok Square, not wearing a glove and unaware of the presence of police officers until some way through the struggle that he had with PC 5540 as the latter apprehended him. 

Grounds of appeal against conviction

15.By Grounds 1 and 2 it is argued that the judge erred in rejecting the evidence of the applicant and Mr Wong Kwok Wai and, conversely in accepting the evidence of PC 5540 in its totality.  By Ground 3 it is submitted that the judge erred in finding that the applicant was a party to the attack on the victim in light of the absence of any evidence of a physical attack by the applicant, that he had a weapon and any supporting scientific evidence of any connection with the assailants, their weapons paraphernalia or their vehicles.  Furthermore, it is said that there was evidence of the presence of spectators/members of the public in close proximity to the victim.  By Ground 4 it is argued that the judge failed to direct himself in respect of the matter of “flight” by the applicant.  By Ground 5 it is contended that in the course of the proceedings the judge “descended into the arena” and that the applicant did not receive a fair trial.  Finally, by Ground 6 it is submitted that the judge erred in law in allowing counsel for the prosecution to cross-examine the applicant on his failure to provide an explanation to the police after arrest and caution, in particular one that was consistent with the subsequent testimony in court. 

Submissions in support of the grounds of appeal against conviction

Grounds 1 and 2

16.Mr McGowan, who did not represent the applicant at trial, submits that in the surrounding circumstances of the assault, in which the available lighting was less than ideal and people were “coming and going” in different directions the judge was not entitled to reject the applicant's account of events, in particular that as he entered Yan Lok Square from Kau Yuk Road (in effect from the six o’clock position on the dial of a clock) he saw a group of people dashing in his direction (from the 12 o’clock position), turned and fled in the direction from whence he came without having seen a group of six uniformed police officers who were entering the square from the direction of Hong Lok Road (from the three o’clock position). 

17.Of the judge’s finding that the injuries to the applicant’s left knee were consistent with the struggle he put up having been pressed on to the ground by PC 5540 Mr McGowan submits that the judge erred in making such a finding in the absence of expert evidence.  Also, he points out that the applicant had given an account to PC 5540 of having sustained the injuries in a collision with a car. 

18.Of the judge’s statement that he found it difficult to believe that the applicant was unaware of the presence of PC 5540 during the pursuit and that he was shouting that he was a police officer Mr McGowan points to the testimony of the applicant that he fleeing because he was scared for his life.  Similarly, of the judge’s rejection of the applicant’s evidence that during the struggle that ensued after the PC 5540 at apprehended him he did not know that the person restraining him was a police officer, Mr McGowan points to the undisputed evidence that all of the acts of restraint occurred from the rear of the applicant.  First, PC 5540 had grabbed hold of the applicant from behind, pushed him against a fence and then forced him on to the ground where he handcuffed him with his hands behind his back. 

19.Of the judge’s finding that it was hard to believe that on testifying in mid June 2007 Mr Wong Kwok Wai was able to remember the date on which the applicant failed to keep their appointment to meet and play video games at Mr Wong Kwok Wai’s home, namely 13 November 2006, without any prompting Mr McGowan said that it was his evidence that this was the only occasion on which the applicant had failed to keep an appointment. 

Ground 3

20.In support of Ground 3, that the judge erred in determining that the applicant participated in the attack upon the victim, Mr McGowan points to the absence of any evidence that the applicant physically attacked the victim or was armed with a weapon at any stage.  PC 5540, having testified that he had seen the applicant about 1 metre from the victim as he was attacked as he sat on the ground, gave positive evidence, to that effect.  Furthermore, he invited the court to note that was no evidence that the applicant ever wore a glove, in contrast to the evidence of other police officers that some persons were wearing gloves.  Next, he suggests that the evidence was to the effect that there were a significant number of “innocent bystanders” present at the scene of the attack.  Finally, Mr McGowan points to the absence of any scientific evidence connecting the applicant with the other assailants, weapons, gloves or vehicles. 

Ground 4

21.Mr McGowan advanced no separate arguments in support of Ground 4. 

Ground 5

22.Mr McGowan contends that there were frequent interruptions by the judge in the testimony of witnesses at the trial.  However, in Ground 5 he confined his criticisms to specific passages in the testimony of the witnesses : eight in the case of the victim, three in respect of PC 5540, one each in the evidence of the defendant and Mr Wong Kwok Wai.  He submited the in consequence an “informed bystander” would take the view that the judge had “descended into the arena” to such an extent that the applicant did not receive a fair trial. 

Ground 6

23.In support of his submission that the judge erred in law in permitting counsel for the prosecution to cross-examine the applicant on his failure to give a more detailed explanation to the police of his account of events, following his arrest in caution, in particular an account consistent with his testimony trial Mr McGowan pointed to the fact that after having been arrested and following the administration of the words of caution the applicant had said : “Sir, it had nothing to do with me.”  Yet, at the outset of cross-examination by Mr Cahill the applicant had been asked :

“Q.  Mr Cheung, if you were so innocent and involved in the manner that you’ve told us, why didn’t you offer a more lengthy explanation to the police when they arrested you?”

24.Mr McGowan submitted that the purpose of such cross-examination was twofold :

(a)  to invite the judge to infer guilt from the failure to tell the police about another person relevant to the investigation; and

(b) to damage his credibility and undermined his defence as a recent invention. 

He submitted that the questions asked of the applicant and those that followed were inadmissible and that it was an error of law for the judge to have permitted this aspect of the cross-examination.  In support, of his submissions Mr McGowan referred the court to the judgment of Mortimer NPJ in the judgment of the Court of Final Appeal in Lee Fuk Hing v. HKSAR (2004) 7 HKCFAR 600.  The appellant had been arrested in a vehicle in which a quantity of heroin was found.  At trial, he testified that earlier he had lent the vehicle to another person who had left the dangerous drugs in the vehicle without his knowledge.  Following his arrest he had not informed the police of this account.  Of the series of questions asked of the appellant by the judge at his trial, eliciting that fact and enquiring of the appellant why that was the case, Mortimer NPJ said (paragraph 33 and page 361E) :

“These questions were designed to elicit the fact that no mention had been made of Tsang Kei’s existence to the police and that the appellant’s defence was not disclosed until the trial.  The aim and possible effect was twofold.  First, to invite the jury to infer guilt from the appellant’s failure to tell the police about Tsang Kei.  Secondly, to damage the appellant’s credibility and undermine his defence as a recent invention.  These aims probably succeeded.”

25.Of the impropriety of the questioning, Mortimer NPJ said (paragraph 63 page 370G) :

“The introduction into evidence of the inadmissible questions and answers was both an error of law and a material irregularity and render the appellant's conviction unsafe.”

26.Whilst he accepted that the judge made no specific adverse reference to the applicant’s testimony in respect of this issue Mr McGowan submits that it was necessary that the judge state specifically that he was disregarding any adverse impact on the applicant’s case trial.  He did not do so.  That, so Mr McGowan submits, was a material irregularity following upon the error in law. 

THE RESPONDENT’S SUBMISSIONS

Grounds 1 and 2

27.Mr Leung submitted that that the arguments advanced in respect of Grounds 1 and 2 are simply an attack on the judge's findings of fact and that before this court is entitled to intervene it must be satisfied that the findings are perverse.  In support, he cited the observations of Chan PJ in his judgment in the Court of Final Appeal in Li Man Wai v. HKSAR (2003) 466 HKCFAR 466 at 472-3 (paragraph 19) :

“… That is the case where the court is satisfied that the magistrate, in reaching his conclusion of finding, as misdirected himself on the facts or misunderstood them, or is taken into account irrelevant considerations or has overlooked relevant consideration.”

28.Mr Leung submitted that there was ample evidence upon which the judge could properly reject the applicant’s evidence, in particular that he was unaware of the presence of police officers until after he had been subdued and as to the cause of the injuries to his left knee, he being entitled to reach the latter decision on commonsense. 

Ground 3

29.In response to the criticism of the judge’s finding that the applicant had participated in the attack on the victim Mr Leung pointed to the evidence of the presence of the applicant standing 1 metre from the victim as he was attacked; that following the shout by PC 5540 ordering the attackers to stop the applicant was one of a group of six persons who ran away; that the applicant and the person with whom he was running each threw away a glove as they were chased by PC 5540; and that the black glove, of the two thrown away by them, formed a pair with a glove found inside the vehicle in which a baton and three metal pipes were found.  

Ground 5

30.Mr Leung invited the court to reject the contention that the judge’s interventions in the course of evidence at the trial were indicative that he had “descended into the arena” and was such that “… it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial”. 

Ground 6

31.Mr Leung accepted that where a defendant elected to remain silent under caution, he could not be cross-examined on why he put forward an explanation only at a later stage.  However, he said that that was not the position in the applicant’s case.  In response to arrest and the administration of the words of caution the applicant said : “Sir, it had nothing to do with me”.  Of the permissibility of cross-examination in those circumstances he relied upon a passage in the judgment of Mortimer NPJ in Lee Fuk Hing (paragraph 57 at page 622H) :

“We may add that, of course, if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence.  The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

32.Mr Leung invited the court to note that very exception to the general rule had been relied upon by the appellate committee of the Court of Final Appeal in its Determination delivered by Ribeiro PJ in Li Siu Hing v. HKSAR, FAMC 32 of 2007.  Having been found in possession of a cigarette box in which there was a quantity of “ice” and in face of the police officer’s assertion that it was that substance the applicant had said :

“Isn’t it Blue tablet, Sir?  Why it changes into ‘ice’?  I didn’t take any such drugs for anybody and you should check it out.”

The appellate committee noted that “Blue tablet” and “Blue Elf” was a common name for a kind of psychotropic drug. 

33.At his trial the applicant testified that at the time of his arrest he believed that the drugs had been obtained under medical prescription.  He accepted that he had not said anything at the time of his arrest about a doctor's prescription and gave an explanation for that.  In his summing-up the judge directed the jury that they were entitled to have regard to the explanation in deciding whether his statement, that he believed that there should be a medical certificate for the “Blue Elf”, was reliable or not.  In determining that the cross-examination was permissible, Ribeiro PJ made reference to the passage in the judgment of Mortimer NPJ at paragraph 57 noting that the court had drawn a distinction between cases (paragraph 6) :

“… where the accused exercises his right of silence and cases where he makes statements which expose him to cross examination as to their inconsistency.”

34.Mr Leung contended that the cross-examination of the applicant was based on the inconsistency between what was said under caution and what was said at trial, so that there was no violation of the applicant’s right of silence. 

35.In the alternative, Mr Leung asserted that the judge had made no use of the cross-examination of the applicant on this issue in determining to reject his evidence so that, if the cross-examination was impermissible and the evidence inadmissible, this court ought to apply the proviso.  

A CONSIDERATION OF THE SUBMISSIONS

Grounds 1, 2 and 3

36.The particular care with which the judge set out in sequence his summary of the evidence, its evaluation and finally his findings bears eloquent testimony to the fact that he was alert to the strengths and weaknesses in the evidence relevant to the issues that he had to determine.  On the one hand, he acknowledged in terms that the evidence was that the applicant was not armed with a weapon nor did he strike a blow to the victim.  On the other hand, he found him to be standing 1 metre away from the victim as others attacked him and, in response to a shout that they stop their attack by one of a group of uniformed police officers, he and the attackers ran off.  During the pursuit he did not stop running away in face of the policemen identifying themselves.  Furthermore, he was seen to drop a glove, as was his co-fugitive.  Some of the attackers were seen to be wearing gloves. 

37.As Mr Leung pointed out, in the context of the criticism of the judge’s rejection of the evidence of Mr Wong Kwok Wai, there was no evidence that the applicant’s failure to keep their appointment at Mr Wong’s home on the late evening of 13 November 2006 was not the only occasion that that had happened.  There was no evidence of that at all. 

38.We are satisfied that there is no merit in the criticisms that are made of the judge’s findings in respect of credibility and reliability of PC 5540, the applicant and Mr Wong Kwok Wai. 

39.In support of Ground 3 Mr McGowan asserted that the evidence was to the effect that there were a significant number of “innocent bystanders” in the vicinity of the scene of the attack.  That evidence is said to be relevant to the issue of whether or not the applicant was himself an innocent bystander.  However, in context that was not the effect of the evidence.  PC 5540 testified in cross-examination that there were six or seven tables at the cooked food stall occupied by other diners.  More importantly, it was his evidence that :

“... they were seated at tables, not walking around.”

No doubt, the point that PC 5540 was emphasising was that he had seen the applicant standing, not seated at a table, about 1 metre from where the victim was being attacked while he was sitting on the ground. 

Ground 4

40.Sensibly, Mr McGowan has not pursued this ground of appeal.  Clearly, in the circumstances of this case there was no need whatsoever for the judge to state that he gave himself a Mo Shiu Shing direction in respect of “flight”. 

Ground 5 (“entering the arena”)

41.In all there are some eight impugned passages in the transcript said to evidence impermissible intervention in the proceedings by the judge in respect of the evidence of the victim.  The first such passage at 79E-M arose in respect of the issue of the available lighting at the scene of the attack.  The judge’s intervention occurred in the context of a cryptic response by Mr Wu about the lighting in the area :

“… if it is a dim or dark place, then it’s dim or dark.  Well, things, if you can see them, you can see them.”

It was an admitted fact that a bundle of photographs, exhibit P2, depicted that area.  The photographs were taken at night and showed various electric lights in operation together with weapons and a bloodstained area that had been cordoned off.  The judge referred to the bundle of photographs and asked :

“COURT :   I can see there were light bulbs hanging and the streetlamps.

A : Yes.

COURT :  Were these lights on when you were there?

A : I wasn’t paying attention to this, but I think they were on.  If the street lights were on, then the light bulbs of the Dai Pai Dong might not be on but I’m not sure whether I was paying enough attention to this.”

42.It was an admitted fact that Mr Wu had identified the applicant at an identification parade.  When counsel for the prosecution asked Mr Wu whether he saw the person he identified at that parade in court the judge intervened reminding everyone that that was the subject of an admitted fact.  Then, the judge asked (87O) :

“COURT :   D1 and D2, stand up.  These are the two persons you identified on 13 December?

A : When I look at them now, they are not quite like the ones I identified on that day.

COURT :  I am telling you as an Admitted Fact that the one in the white T-shirt, D1, and the one in black jacket, D3 were the two you identified on that day.  Wait for the following questions …”

Counsel for the prosecution then asked Mr Wu why he had identified the applicant.  In the context of the identification of the applicant, Mr Wu was asked by the judge why he had made that identification (88A).  In face of one of his subsequent responses, “ I dare not comment on what he did that night.” the judge said :

“COURT :   You’re not here to make your comment.  Tell us what you saw and what you heard.

A : I’ve told you everything, really.

COURT :  So why did you — you haven't quite answered the question.  Why did you pick out D1 at the parade?

A : Really, I don’t know if D1 attacked me that night but what is certain is that someone attacked me that night.”

43.After the judge had granted the prosecution leave to treat Mr Wu as an hostile witness Mr Wu accepted that he had told the police that a man that he had picked out at an identification parade was the man driving a seven-seater van but went on to say (page 94) :

“… but for now, I cannot recall clearly”.

Later, he added that at the time that he had given the statement he was confused.  In those circumstances the judge asked :

“COURT :   But when you gave this statement, you were not under any danger of attack December 2006.

A : It’s not just in the year 2006.  Actually I'm afraid every moment.

COURT :  would that affect the way you give your evidence in court?

A : I’ve no idea how if it would affect my performance in giving evidence in court, but what I know now is that I'm afraid or in fear.”

44.In the context of Mr Wu’s evidence, of another identification parade, that the person that he had identified was “similar in body build” to one of the assailants, whereas in his witness statement he had said that he was “sure” of that identification the judge asked (98A) :

“COURT :   So why did you tell the officer you were sure?

A : I had the feeling that he was similar, that I’ve no idea why I said that.”

45.In cross-examination of PC 5540, counsel for the applicant having established that PC 5540 had not seen the two persons after whom he gave chase holding anything, counsel asked the officer how it was that he could say that they were part of the assault.  In that context, the judge interjected with a rhetorical question (page 112) :

“Do you mean they had to be holding something in order to be a party to it?”

Then, after PC 5540 had said that he had not seen those two persons hit anyone, the judge asked :

“COURT :   So how far with these two people away from the person under attack?

A : At that time, these two persons were with a group of people and they were at a distance of about 1 metre.”

46.Of the issue of how it was that the applicant had sustained the injury to his left knee, and after counsel for the applicant in cross-examination had suggested in cross-examination that it was not caused by the struggle between the officer and the applicant PC 5540 said (page 113) :

“At the time, he was wearing trousers — jeans I was unable to see when he suffered that injury.”

In face of further questions on that subject the judge reminded counsel of the answer of the witness.  Thereafter, counsel desisted in that line of cross-examination. 

47.In his evidence-in-chief the applicant had described his escape from the persons running towards him, namely of having run back towards Kau Yuk and then into Hong Lok Road, at the junction of which he bumped into another person and was forced on to the road.  It is apparent from the sketch of the scene that those roads are at right angles to one another.  In cross-examination, the applicant testified that he was scared (page 121) :

“All I knew was that I had to run- forward.”

Then, the judge intervened :

“COURT :  I don’t think you were running all the way forward.  You ran out of Yan Lok Street, ran along Kau Yuk road and turned into Hong Lok Road.  You were not running all the way forward as you said.

A : I know I took two turns, but I didn't look back.”

48.Finally, in cross-examination of Mr Wong Kwok Wai, in the context of a telephone conversation with the applicant about giving evidence, he was asked :

“… did he suggest to you that 13 November was the day that you played video games with him?”

In face of a non-responsive answer the judge asked :

“The question was: did D1 suggest to you 13 November was the date?”

In face of yet another non-responsive answer the judge repeated the question and finally received a negative answer to the question. 

49.We have quoted the impugned passages in the transcript at some length in order to demonstrate that this ground of appeal is utterly bereft of any merit. 

Ground 6

50.In the prosecution case, evidence was led through PC 5540 of two separate oral statements made by the applicant.  Firstly, his response to being arrested for participating in the serious wounding of the victim and following the administration of the words of caution, namely : “Sir, it had nothing to do with me”.  That oral response had been rendered into writing in the officer’s police notebook and signed by the applicant between 01:00 and 01:37 hours on 14 November 2006.  Secondly, his assertion to that officer, in the Report Room of Yuen Long police station, that earlier on he had been hit and knocked down by a vehicle in Yan Lok Square, which had resulted in an abrasion to his knee. 

51.In cross-examination by counsel for the prosecution the following interchange occurred at the outset :

“Q.    Mr Cheung, if you were so innocent and involved in the manner that you’ve told us, why didn’t you offer a more lengthy explanation to the police when they arrested you?

A.  I did offer an explanation to them.

Q.  You said, according to them, ‘just had nothing to do with me,’ I think or words to that effect.

A.  I did tell them that I had been hit by a car.

Q.  But during the course of the recording made by the officer, you were asked at the end of it whether you wished to add anything or - to use the words properly, where are we? - to alter, correct or add anything you wished.  That’s correct, wasn’t it?  You were asked that after the officer recorded what you said at the scene.

A.  But I did tell him.

COURT:  Answer the question, please.

A.  Yes, I was told that.

Q.  You were told that and you didn’t bother to say you’d been visiting your friend, Mr Wong Kwok-wai, at his flat.

A.  I did say that.  I did tell ...

COURT:  To the officer who recorded the post-record from you?

INTERPRETER:  I’m sorry?

COURT:  You said it to the officer who took the post-record from you.

A.  When I was at the police station, I told the officers that.

COURT:  Why didn’t you tell the officer who was investigating from you, the one who took the post-record from you?  The other officers may not be involved at all with this case.

A.  When I was at the police station, the officer who asked me did jot down that I was there to visit a friend and the address which I gave him, also the telephone number.”

The applicant went on to deny the suggestion that he had never named Mr Wong Kwok Wai to the police at any stage. 

52.It is clear that the applicant’s response to being arrested and cautioned was in essence no more than a simple denial of culpability.  In R v. Naylor 23 Cr.App.R. 177, cited by Mortimer NPJ in Lee Fuk Hing at paragraph 38, Lord Hewart LCJ, in the judgment of the Court of Criminal Appeal of England and Wales, observed of the response by the appellant to the magistrates when asked if he wished to say anything in answer to the charge : “I don’t wish to say anything except that I'm innocent.” :

“Now if these words are really to be construed in this sense, that, having heard them, an accused person remained silent at his peril and may find it a strong point against him at his trial that he did not say anything after being told he was not obliged to say anything, one can only think this form of words is most unfortunate and misleading.  We think that these words mean what they say and that an accused person is quite entitled to say: ‘I do not wish to say anything except that I am innocent.’” (see page 180-1)

The court went on to hold that it was a misdirection to invite the jury to draw inferences adverse to the appellant from his failure to give an explanation there and then. 

53.Clearly, the applicant’s simple denial of participation in the offence in the face of the allegation made by the police officer on his arrest and having been cautioned is in no way inconsistent with his account in his testimony at his trial.  His denial to the police of participation in the offence was entirely consistent with the tenor of his evidence at trial.  Accordingly, the exception, identified by Mortimer NPJ and cited above, to the general rule that is not permissible to cross-examine the defendant who, following arrest and caution, had remained silent, namely (paragraph 57) :

“... if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticised on other grounds it is open to the prosecution to cross-examine and comment on that statement and its relevance to the defence.”

did not arise. 

54.Although, as has been observed earlier, the applicant did make assertions to PC 5540, not under caution, that he had been hit and knocked down by a car, it is clear that he was not cross-examined on the basis of this assertion being inconsistent with his defence.  It was part of his testimony at trial.  It is clear from the initial and subsequent questions that the basis of the cross-examination was the failure of the applicant to “… offer a more lengthy explanation to the police” first, when he was arrested and secondly, on the occasion of the post-recording of what he had said at the time of his arrest. 

55.In all the circumstances, the line of questioning pursued by counsel for the prosecution of the applicant was impermissible and the evidence inadmissible.  Whilst there was no objection by counsel for the applicant to the line of questioning by counsel for the prosecution at trial, nevertheless the judge ought to have ruled it inadmissible and his failure to do so was an error of law. 

The proviso

56.As pointed out earlier in the judgment Mr Leung had anticipated that this court might reach that conclusion and in his written submissions, supported orally, he invited this court to apply the proviso.  

57.There is no dispute that, on the one hand, the judge did not specifically rely upon this aspect of the testimony of the applicant in reaching his findings as articulated in the reasons for verdict and, on the other hand, he made no statement that he was disregarding this testimony.  In the course of oral submissions this court drew counsel’s attention to the transcript of passages of the closing submissions of counsel at the trial.  It is apparent from the submissions of counsel for the prosecution that the issue of the applicant’s failure to protest his innocence more fully following his arrest and caution was alive and canvassed on behalf of the prosecution.  Mr Cahill submitted :

“His only reply was ‘Ah Sir, none of my business’.  No further information to the police and (he) remained silent when, one might think, at that time an innocent man might protest his innocence more fully.”

Belatedly, and somewhat half-heartedly Mr Boyton, on behalf of the applicant, took some degree of issue with that submission, but without inviting the judge to ignore the evidence as inadmissible :

“I am not quite happy with my learned friend's address.  He criticises my client for exercising his right to silence after the initial statement to the police.”

58.Mr Leung readily accepted that the judge ought to have stated clearly and specifically in his reasons for verdict that he placed no reliance whatsoever on the part of the cross-examination of the applicant in which he had been challenged for not providing the police with a fuller explanation following his arrest and caution.  However, he submitted that this court could be sure nevertheless that the judge had placed no reliance on that impugned evidence and that the reasons he articulated were sufficient to sustain the applicant's conviction. 

59.In his reasons for verdict the judge in his “Summary of the evidence of the prosecution witnesses” did advert specifically to the fact of this line of cross-examination :

“55.   Under cross-examination, D1 was asked if he was innocent, why he did not offer more detailed explanation to the police instead of just telling PW 2 that it had got nothing to do with him.  D1 said that he did offer his explanation.  He had told PW 2 that he had been hit by a car.  As for his intended visit to Wong’s place, D1 said that though he did not mention this in the post-record back at the police station, D1 had told another officer about his intended visit and that officer had recorded the address of Wong.  When asked if Wong would come to give evidence D1 said, ‘Wong was at work at the moment but would come to give evidence for the defence.’  D1 disagreed with the suggestion that he had never told the police about Wong.” 

60.In his “Evaluation of evidence” the judge stated of the applicant (paragraph 75) :

“I found D1 a dishonest and unreliable witness and I rejected his evidence in court and his explanation to the police.”

The judge said that he accepted the evidence of PC 5540 and found that :

“… D1 was 1 metre away from the victim when there were people running towards the victim.”

Having noted that it was the evidence of all the police officers that the attackers only started to disperse after the police officers appeared and shouted at them the judge said :

“If D1 saw a group of people dashing towards him after D1 entered Yan Lok Square, I found it difficult to believe that D1, before he turned around and ran, he could fail to notice presence of six uniformed police officers at Yan Lok Square.”

The context of that expression of scepticism of the applicant's testimony is that the evidence of PC 5540 was that the victim was surrounded by “10 odd males”.

61.Next, the judge said :

“I also find it difficult to accept D1 was unaware of the presence of PW2 during the chase when PW two was behind D1 in close distance and was shouting at D1 and the other male revealing his police identity and telling them to stop.  I did not believe when D1 struggled with PW2 he did not know PW2 was in uniform and he only realised that when he was handcuffed.”

PC 5540 did not testify when in his pursuit of the applicant and the other man he had shouted out “Police! Freeze!” nor that he had said that more than once.  Finally, the judge said that he did not believe the applicant's testimony that as he fled the scene he had chosen to run down a particular road in order to take transport to return home. 

62.Finally, under the heading “Findings” (paragraph 83) the judge set out his findings that led him to conclude that the applicant was a party to the attack on the victim :

“D1 was just 1 metre away from the victim and was wearing a glove.  He was not an innocent passer-by as he claimed.  He ran away from the Yan Lok Square in the way described by PW 2.  He discarded a glove in Hong Lok Road, as the other male who ran with him did.  I found that D1 knew he was being chased by a uniformed police officer and he ran because he was a member of the group were attacking PW 1.  He struggled with PW2 for the same reason.”

Mr Leung accepted that there was no direct evidence that the applicant had been wearing a glove.  PC 5540 testified having seen him throw a glove to the ground as he pursued him. 

CONCLUSION

63.As noted earlier the nub of the impermissible and inadmissible cross-examination by counsel for the prosecution of the applicant as to why he had not given a fuller explanation to the police at following his arrest and caution was linked specifically to the applicant’s explanation in evidence that he was on his way to visit his friend Mr Wong Kwok Wai, who lived in Yan Lok Square.  In response, the applicant testified of having given such an account to some unidentified police officer at Yuen Long police station.  It was the judge himself who expressed scepticism about that evidence :

“COURT : Why didn't you tell the officer who was investigating from you, the one who took the post-record from you?  The other officers may not be involved at all in this case.

A. When I was at the police station, the officer who asked me to jot down that I was there to visit a friend in the address which I gave him, also the telephone number.” 

64.Whilst the prosecution case was by no means weak, in the absence of a statement by the judge that, in determining that the applicant was a dishonest and unreliable witness whose evidence in court and explanation to the police he rejected, he disregarded the inadmissible evidence elicited in cross-examination by counsel for the prosecution we are unable to say that no miscarriage of justice has occurred.  Accordingly, we grant the applicant leave to appeal against his conviction and, treating the hearing of the application as the hearing of the appeal, we quash that conviction. 

Mr David Leung, SPP of Department of Justice, for HKSAR

Mr James H.M. McGowan, instructed by Messrs Tang, Wong & Cheung, for the Applicant