Wong Chik-pui and Another v. The Queen
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CACC000112/1977
Coram: Trainor, J. Date of Judgment: 10th February, 1977. ----------------- JUDGMENT ----------------- 1. Wong Chik-pui and Lee Sik-yuen were convicted of attempting to steal from an unknown person contrary to section 9 of the Theft Ordinance. They appealed against their conviction and I allowed the appeal. 2. It was not easy to ascertain from the record what was alleged to have happened but it would appear to be as follows. 3. On the 2nd October, 1976 the first police witness, who was off duty, was driving along Cameron Road towards Carnarvon Road when his attention was drawn to a car on his right hand side by reason of the slow pace at which it was being driven. The driver was the sole occupant of that car and the police constable recognised him "as a reputed thief". He was the second appellant. Ahead of the cars there was a traffic signal and a pedestrian crossing. What colour was then showing on the traffic signal I cannot say but from the evidence of the witness it was red shortly after he noticed the other car. According to the constable the other car suddenly accelerated and bumped into two Japanese who were crossing the road from right to left, as the witness looked at them. The witness said he accelerated and cut in front of the second appellant's car. He said the two Japanese were forced to step back by the second appellant's car and he saw one of three Chinese who were behind them place his right hand in the left hip-pocket of one of the Japanese. He identified the first appellant as the Chinese who did that. The record of the examination-in-chief at that stage continues as follows "When I saw his movement (second appellant) was already trying to escape".
Continuing the witness said the three Chinese ran away and he got out of his car. At this time the car of the witness was diagonally across the front of the other car. He said he approached the car of the second appellant who "had his car door opened and I was unable to see his feet but he was in a process of moving out I could tell by his body. I walked up to his car and closed his door and I took out my police warrant card and told him I want to arrest him." 4. What disquietened me about this part of the witness's evidence was that he was presenting conclusions, or inferences which were highly prejudicial. The conclusion that the second appellant was about to flee was particularly prejudicial as it followed shortly after it had been stated that he was a reputed thief. The learned Magistrate did refer to that in his statement of findings. He said:
5. I must confess to having difficulty in understanding that last sentence but it indicates that the learned Magistrate did in his deliberations take into consideration the statement of the witness that the appellant was a reputed thief. That was absolutely wrong. In certain circumstances, for example when an accused attacks the character of a prosecution witness or gives evidence of his own good character, an accused may put his character in issue and evidence may be lead to show his previous criminal record or to permit him to be cross examined as to his character. But on a charge such as the second appellant faced those are the only circumstances in which his bad character might be taken into consideration. Even then any conclusion reached must be on the basis of evidence before the Court. In the instance case there was not one iota of acceptable evidence to establish that the appellant was of doubtful character. There was an expression of opinion by a witness that the appellant was of ill repute but that was not evidence, even had the character of the appellant been in issue. Had the gratuitous opinion been expressed before a jury the trial judge would have had to discharge the jury, or at the least give a very carefully worded instruction to disregard what had been said. The magistrate should have done the same, disregarded it. That he gave any consideration to it at all is in my opinion fatal to the conviction. May I say in conclusion on this point that it is indeed doubtful that the defence cross-examined the witness as to credit - certainly as to the extent to warrant the bringing of the character of the appellant into issue. The defence certainly did cross-examine as to credibility but that is a different thing. A case from which considerable assistance may be obtained on this point is that of R. v. Butterwasser, (1947) 2 A.E.R. 415. 6. In considering the case of the first appellant it was necessary to picture the scene as told by the only witness of what was alleged to have happened. 7. He said that he saw the second appellant accelerate and bump the Japanese pedestrians. Therefore the second appellant's car must have been in front of the witness's car and to its right at the time of the bump. The witness said he accelerated and cut across the appellant's car because of that incident. He said he then saw the first appellant put his right hand into the left hip-pocket of one of the Japanese and continued "when I saw his movement (the second appellant) was already trying to escape". If that evidence is correct then the action of the first appellant took place after the witness cut across the car of the second appellant. But in cross examination when he was asked as to his position when he saw the first appellant's hand in the hip-pocket, agreeing with the defence as to the position of the two cars, he said "when I first saw the defendant (i.e. the first appellant) I was in this position. I speed up my car and still in this position (near corner). The hand was still not withdrawn". That evidence would indicate that he saw the appellant's hand, his right hand, in the left hip-pocket of the Japanese before he speeded up. 8. There are two interesting factors there to be considered. If the first appellant put his hand into that hip-pocket as a result of the second appellant accelerating and bumping the Japanese causing them to jump back, then the witness was wrong when he said he first saw the first appellant before he "speed up". If on the other hand the first appellant did put his hand into the pocket after the bumping it is difficult to see how the witness could have seen the first appellant's right hand in the Japanese's left pocket - which itself suggests something of contortion as he was allegedly behind and to the right of the victim - by reason of the obstruction caused by the second appellant's car. When the witness drew a sketch of the scene he showed the Japanese as being very close to, if not back on, the footpath. That would suggest that it would have been impossible for the witness to have seen the appellant's hand in the victim's hip pocket. It is true that the learned Magistrate was aware of the contention of the defence that such was the case when he arrived at his conclusion but he gave no indication as to how he reconciled the two different versions given by the witness. 9. To add emphasis to the necessity clearly to indicate how he arrived at his conclusion in those circumstances was the fact that the witness's evidence was on many occasions contradictory. One other example was as follows. He said that the first appellant ran away after he, the witness, descended from his car but returned when he had arrested the second appellant. He said the first appellant returned and "pretended to be a passer by" and offered to telephone to the police station but was told there was no need to do so. He was asked why did he not arrest the first appellant and he said as he was off duty he had neither revolver nor handcuff and it would have been difficult to do so. Later he was asked why did he not seek assistance from bystanders and he said "passers-by would not help; they only came to look for fun". But later still he said that someone dialled 999 for assistance for him; and that he had asked for assistance to arrest the first appellant but nobody responded. It was pointed out to the witness that earlier he had said he had not asked for assistance but later said that he had. His explanation was that the case happened a long time ago and he was not sure about the details. 10. Another piece of cross-examination revealed how necessary it was meticulously to scrutinise the evidence of the witness. It was put to him that the first appellant came to him and asked if there had been an accident. This he denied. He was then asked:
The witness then went on to admit that the right mudguard of his white car had previously been damaged but had a coat of red staining paint on it. The witness was asked:
11. That apparently evasive answer was typical of many of the witness's answers in cross-examination. However the matter was pursued and he was asked.
12. There were certain facts established by the evidence of the witness and they resulted, largely, from the sketch plan drawn by him. From those facts, it is as possible for an appellate judge to arrive at a conclusion as the judge at first instance. In my opinion there must be considerable doubt as to whether the witness could, in the circumstances described and illustrated by him, have seen what he said he saw. When that was coupled to answers in cross examination - in addition to those I have cited - which were evasive or ambiguous uneasiness at the verdict of guilty was inevitable. When, in addition, one took into consideration the inferences and conclusions of the witness that were presented as evidence against both appellants that feeling became so strong as to force a conclusion that the verdict was unsafe and unsatisfactory and ought not be allowed to stand.
Representation: Mr. Huggins (Lennox Bywater & Co.) for both appellants. Mr. Hindle c.c. for respondent/Crown. |