Chan Pui-chi and Others v. The Queen
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CACC000685/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 685 OF 1972 -----------------
----------------- Coram: G.G. Briggs, Puisne Judge Date of Judgment: 17th May, 1973. ----------------- JUDGMENT ----------------- Briggs, J.: 1. The four appellant in this case were charged, together with another man, with two offences: affray, and wounding with intent to murder. The four appellants were all found guilty of affray and wounding with intent to do grievous bodily harm. The other man was acquitted. The four appellants appeal against their convictions. 2. The charges arose out of an incident which occurred on 10th April last year at Block 6 Tai Hang Tung Resettlement Estate. 3. At about 10 p.m. on that date a young man named LAU Kwok-wah was standing with another young man named LEUNG Wing on a balcony in the block in question. They were attacked by a party of about ten youths some of whom at least were armed with knives. LEUNG Wing ran away but LAU Kwok-wah was injured by some of the youths and amongst other injuries lost two fingers from his left hand. 4. LAU Kwok-wah was removed to hospital and in due course two identification parades were held in which he picked out the second, third and fourth appellants as being members of the gang which had attacked him. The second, third and fourth appellants all made cautioned statements to the Police which were admitted in evidence. The statement of the second appellant was a confession to both offences. The statement of the third appellant indicated at least that he was present at the incident. And the statement of the fourth appellant was a confession that he had taken part in the affray. The first appellant did not make any statement to the police. 5. Each appellant has filed a single ground of appeal, namely that there was insufficient evidence before the Court to found a conviction. 6. Mr. Commissioner Cors, who tried the case summed up the evidence in respect of each appellant to the jury with great care. Each of the appellants relies upon an alibi as his defence: and the Commissioner dealt with aspect of the case most fairly. 7. We can find no merit in the appeals of the second, third and fourth appellants and treating these applications for leave to appeal as the appeals themselves, their appeals are dismissed. 8. The appeal of the first appellant stands on a different footing from the appeals of the other appellants. He made no statement to the police. Though he was present at the identification parade at which LAU kwok-wah identified the second and third appellants, he was not identified himself. 9. LAU Kwok-wah did identify the first appellant at the committal proceedings. This was the only evidence to connect the first appellant with the offences. It was identification when the appellant was together with the three other appellants in the dock. Those three other appellants having been identified by LAU Kwok-wah previously. The first appellant has never admitted the offences and his defence was an alibi; to establish which he called a witness. 10. But the matter does not rest there. Altogether the police held four identification parades, and at one of them, LEUNG Wing, the friend of LAU Kwok-wah, picked out the first appellant as being one of the men who attacked LAU Kwok-wah and himself. At the time of the fight LEUNG Wing was standing with LAU Kwok-wah on a balcony of the resettlement block where the fight occurred. 11. LEUNG Wing was not called as a witness for the prosecution because he had disappeared by the time the case came on for trial. However, we think that there is a distinct possibility that the jury became aware that LEUNG Wing, whose name and whose presence at the fight had been referred to in his opening address by Crown counsel, had identified the first appellant at an identification parade. 12. This came about in this way. The Crown called a police officer to give evidence of the identification parade at which LAU Kwak-wah identified the second and third appellants. This officer refreshed his memory when giving that evidence from an identification parade book which is a special record kept by the police for this purpose. This book contained not only a record of that identification parade but also the record of another identification parade held by the same officer, at which LEUNG Wing identified the first appellant. The officer was not asked any question about that identification parade. But the Crown then put the identification book in evidence. 13. It is obvious from the evidence that Crown counsel only intended that part of the book which dealt with the identification parade at which LAU Kwok-wah was present should be exhibited. 14. It was agreed that photostat copies of the relevant part of the book should be supplied to the jury. Unfortunately not only the record of that identification parade but also the record of three other identification parades were copied and the copies were given to the jury. These three parades were parades at which LEUNG Wing picked out various persons, one of whom was the first appellant. In fact the first page of the copies presented to the jury deals with that parade. The record is in English. 15. It is true that no reference was made to that identification parade throughout the trial. But the record was there before the jury as from the second day of the trial. 16. We think that if the members of the jury or some of them read that record it would have had a most prejudicial effect against the first appellant. And might well have tipped the balance in favour of a conviction bearing in mind the slender nature of the evidence against him. Consequently we think that it would be unsafe to allow his conviction to stand. The appeal of the first appellant is therefore allowed and his conviction quashed. 17. But we do not think we should let the matter rest there. We consider that it was wrong to put the record of the identification parade in evidence. It is the evidence of the police officer as to the parade which is material to the case, not what is written in the identification book. The production of the record is to refresh the memory of the officer giving evidence, who cannot, without such a record, be expected to remember all the details of a parade. If the defence wish to see such a book so as to cross-examine as to such details they only have to request that it be produced. It is not correct to make the book an exhibit. 18. The appeals of the second, third and fourth appellants dismissed and the appeal of the first appellant is allowed.
Representation: Appellants in person H.M. Duffy, C.C. for Respondent. |