Wong Tak Leung v. The Queen
|
CACC000645A/1981
BETWEEN
----------- Coram: Sir Alan Huggins, V.-P., Yang, J.A. and Power J. Date: 27th May 1983. ________________________ REASONS FOR JUDGMENT ________________________ Sir Alan Huggins, V.-P. : 1. This case was before the court upon a reference by His Excellency the Governor under s. 83P(1)(a) of the Criminal Procedure Ordinance. We dismissed the appeal and said that we would give our reasons in writing later. 2. Mr. van Buuren has taken in all eight points on behalf of the Appellant. The first was that in directing the jury concerning an alleged written confession, which the Appellant said had been written by the police after he had been induced to sign his name four times on blank sheets of paper, the judge invited those members of the jury who knew Chinese characters to consider
This, Mr. van Buuren, contends, was a misdirection and was "likely to deprive [the] defendant of a fair trial because it invites some members of the jury to use special knowledge other members did not have and it is likely to cause the latter to be guided by the former". It was, perhaps, unfortunate that the learned judge addressed himself only to those jurors who knew Chinese characters, for in truth a knowledge of Chinese characters was not essential for the proper consideration of the matter under discussion. Even those jurors (if any) without a knowledge of Chinese characters were capable of forming a view as to the likelihood of the story told by the Defendant and there was no danger that they would be overborne by those who had such a knowledge. Even if special knowledge had been required, we are satisfied that it would not be wrong for a juror to use such special knowledge, not related specifically to the facts of the particular case at bar, for the purpose of interpreting the evidence he had heard. That is not the same thing as giving evidence to himself or to his fellow jurors: compare Wetherall v Harrison 1976 1 All E.R. 241. 3. Secondly, it was submitted that even if that direction was not improper the judge should have gone on to direct the jury that it was not a physical impossibility to fit the characters to the signatures. In our view it was not necessary to tell the jury what must have been obvious to them. Juries are empanelled so that the court may have the benefit of their common sense and it is not to be assumed that they are incapable of exercising their common sense unless specifically directed on every conceivable point. 4. Thirdly, complaint was made of the admission of evidence that one of the victims of the wounding charges identified the Appellant at a confrontation in a hospital ward. We were not able to understand why it was suggested that this evidence was not admissible, and it is fair to say that this point was not pressed. 5. The fourth, and alternative, contention was that this evidence should not have been admitted until the judge had heard evidence of the circumstances surrounding the identification and had applied his mind to the issue whether he should exclude the evidence of identification in the exercise of his discretion. Mr. van Buuren goes so far as to suggest that, if the judge had heard the evidence which was available, he would have excluded the identification evidence. The position was that the victim had been very severely wounded and that it was medically undesirable that he should be moved, save for necessary diagnosis or treatment. The ward which he occupied was not large enough for a proper identification parade. The police, therefore, took the Appellant into the room on his own. He was kept in handcuffs throughout. We were addressed at some length on the nature and extent of the discretion to exclude admissible evidence, a matter upon which there still seems to be room for doubt. That the courts are now bound to recognise the existence of such a discretion, however illogical that may be, is not disputed: it has long been recognised that evidence which may have a prejudicial effect greater than its probative value may be excluded. Mr. van Buuren submitted that even on this basis the identification in the hospital ward should have been excluded. We could not accept that. Obviously the probative value of an identification by "confrontation" was not as great as would have been evidence of identification on a full scale identification parade, but it was still good evidence of identification. It is questionable whether there was any "prejudice" to the Appellant as that word is used in the present context. Even if there was, it could not possibly have outweighed the probative value of the evidence and to have excluded it would have been unjust to the prosecution, who were hampered by the fact that a principal witness, having been the victim of an offence charged, had been rendered immobile. The police could have waited in the hope that the witness would recover and then have held an identification parade, but it was in the interests of the suspect as much as anyone else that it should be ascertained without long delay whether the witness was able to identify his assailant. 6. Only if there was the wider discretion contended for by counsel for the Appellant, namely a discretion to exclude any evidence which was "unfair or oppressive", could this evidence possibly have been excluded. The uncertainty which would be created by such a discretion has been often mentioned, but we do not find it necessary to consider all the cases which have been cited to us. We are content to adopt the view of Lord Diplock in Reg. v Sang 1980 A.C. 402, 437D that, apart from the narrow discretion already discussed, then
It is true that that case was concerned with incitement by an agent provocateur and not with evidence obtained after the commission of the alleged offence from someone other than the accused, so that the opinions expressed were to an extent obiter, but none of their Lordships dissented from the passage we have cited. Lord Salmon desired to keep the door open lest there should arise a case where the admission of evidence not then in the contemplation of the House might "make the trial unfair", but subject to that he expressly agreed with Lord Diplock. We have no hesitation in holding that there was no discretion to exclude the evidence of the identification in the hospital ward. 7. Fifthly, it was argued that, having admitted this evidence of identification, the judge failed to give an adequate direction to the jury along the lines indicated in Reg. v Turnbull 1977 Q.B. 224 and that he ought expressly to have warned of the danger of acting on the identification of one witness, who might be honestly mistaken. Whilst it is true that the judge did not use the word "danger" in any of its cognate forms, he referred to "the principal weakness" of the evidence, warned the jury to take "very special care" and pointed out that the witness "could be very well mistaken". No more was required. 8. Sixthly, Mr. van Buuren submitted that the judge failed to deal adequately with the circumstantial evidence, none of which (he said) was of value. As we understood him, he was complaining that the judge should have pointed out the relevance of each piece of circumstantial evidence for the prosecution case and then have indicated how that evidence (and, in some instances, how the absence of circumstantial evidence) supported the defence case. The first of those which were mentioned by the judge was the absence of any evidence that fibres from the clothing seized from the Appellant's dormitory were found on the clothing of any of the four victims. Mr. van Buuren appeared to contend that "there was no evidence of clothing fibres to connect the Appellant with the offences". We think that that is precisely what the jury would have understood from the direction given. 9. Then the judge drew attention to a wet, lady's blouse found in the kitchen of one victim's home. This had been pointed out to the police by the Appellant, who said in a statement that at the time of the offence he had "got a garment from the kitchen and put it on", taking it off and throwing it down there when he left. Great emphasis was placed on the absence of any reminder that no blood stains were found on this blouse, although the judge had just mentioned that no blood stains were found on the Appellant's clothes. What is said is that the judge was suggesting to the jury that the absence of blood stains on the Appellant's clothes may have been due to his wearing the blouse and that the judge ought, therefore, to have added that no blood stains were found on the blouse either. Despite the use of the conjunction "but", we do not think that the judge was trying to explain away the absence of blood stains on the Appellant's clothes: it is clear that the reason why he mentioned the blouse was to point out the unlikelihood that the Appellant's statement in which the reference to the blouse appeared had been concocted by the police, as was alleged by the Appellant. 10. The next complaint was that the judge mentioned a pair of gloves which was found at the scene of one of the crimes and which had on them red paint similar to red paint used by the Appellant at the factory where he worked, but that the judge did not tell the jury that the gloves could have belonged to someone else. In our view that was too obvious to require mention. Equally, we see no necessity for the judge to mention that other knives besides that found in the Appellant's dormitory could have been used to cut the door at the scene of one of the crimes: he did not suggest otherwise and he warned the jury against drawing speculative inferences from proved facts. That the knife was not strong enough to have made a cut found in the plastic tubing of a liquid petroleum gas cylinder was of no significance and did not require mention. 11. Finally in relation to the circumstantial evidence the judge reviewed the evidence of foot prints found on a door at the scene of one of the crimes and the evidence that these could have been made by a shoe found at the home of the Appellant's grandmother "or a shoe having the same kind of heel". Once again the inconclusiveness of this evidence, standing by itself, must have been obvious to the jury. It was the sum total of all the circumstantial evidence which tended to support the direct evidence of identification. A more elaborate direction on the various individual items of circumstantial evidence might not have been amiss, but we are not persuaded that such deficiencies as there were could materially have affected the verdicts of the jury. 12. The seventh point taken by Mr. van Buuren was that the judge did not detail some inconsistencies between the evidence of the prosecution witnesses and the statement made by the Appellant to the police. They were not relied upon in his closing address by counsel who appeared for the Appellant at the trial as casting doubt upon the truth of the statement, which was attacked on the basis that it had been concocted by the police and was not the Appellant's statement at all. In our view the inconsistencies in any event concerned such minor and peripheral matters that they did not demand express reference in the summing-up. The judge warned the jury that in relation to the Appellant's statement the issue they had to consider was whether it was true and he told them that they were not obliged to believe the whole or nothing. 13. The final point was that the judge did not, when discussing the Appellant's evidence, remind the jury of the psychiatrist's evidence that the Appellant "would be at the lower limit of normal intelligence" or even "of limited intelligence although the judge did mention that the Appellant had had right ear deafness and slurring of his speech since he was a child. The psychiatrist emphasized that he had not carried out any intelligence quotient tests, and we are satisfied that his opinion as to the degree of the Appellant's intelligence was not of such importance that it called for express mention in the summing-up: the jury had heard the evidence and would have formed its own opinion as to the ability of the Appellant to tell a coherent story. 27th May 1983. |