The Queen v. Ho Kam-sum and Another

CACC000695/1983

IN THE COURT OF APPEAL

BETWEEN

Coram: Li, Cons & Silke, JJ.A.

Date: 10th November, 1983

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J U D G M E N T

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Li, J.A.:

1. The 1st and 2nd appellants (D2 and D3 respectively) were charged with murder of LAI Man-nin on the 31st October, 1982 and wounding YU Kam-man with intent to do him grievous bodily harm on the 30th October. They were indicted with D1. In the event, the 1st defendant was acquitted.  D2 and D3 were convicted of both charges. Hence the appeal against conviction.

2. The victims Lai and Yu were residents of the Tin Kuen House of the Shun Tin Estate. Between 10 and 11 p.m., on the 30th of October, they were having a chat at the open ground opposite to Tin Kuen House with a few friends. They were suddenly attacked by several groups of youths who were residents of the Shun On Estate. Some of their friends, CHOI Wai-kei (PW2), CHUNG Chi-on (PW3), LUNG Wai-kwok (PW4) managed to escape the attack without injury. The victim YU Kam-man (PW1) was not so fortunate. He received head injuries and was the victim named in count 2 of the indictment. The most unfortunate person was LAI Man-nin, the victim named in the 1st count. He died the following day as a result of the injuries received that evening.

3. Such evidence was not seriously challenged. No doubt there was an attack by groups of youths on these unfortunate victims. Death and injuries resulted from such attack. What was disputed was the allegation that D1, D2 and D3 were members of one group or another who attacked Lai and Yu that evening. There was confusion at the scene. Some of the attacking groups were seen to have wielded water pipes or knife-like objects.  In any event, the Crown's case was that it was a concerted effort and a gang attack. The main issue was, therefore, whether D2 and/or D3 were amongst the attackers at the material time, and if so, whether there was a common design to inflict serious bodily harm on the victims.

4. The police arrested D1 on the 8th of November, 1982, D2 on the 9th November, 1982 and D3 on the 17th of February, 1983. A11 these suspects were put on identification parade at one time or another. On the 9th of November, in an identification parade, PW4 identified Dl and D2, PW3 identified D2 only and PW2 identified no one. On the 11th of March, 1983, in an identification parade, PW4 identified D3 and two actors, PW3 identified D3 and two actors, PW2 however identified D3 together with one suspect. At no time, could PW1, the victim of the second count of wounding, identify anybody.

5. On the day of his arrest, D2 made a cautioned statement in which he said:

"I was not present at the scene on that day. WU Chun-yin told me about the fight on the following day. WU Chun-yin mentioned about going to fight at the Tin Kuen House meaning this case and took part. I did not take part."

Later, on the same day, namely the 9th of November, D2 was charged with the murder of LAI Man-nin.  In answer he said:

"I did not do this matter, I know who did it. 'Fei Pao', 'Kau Koo', WU Chun-yin. It was WU Chun-yin who told me this matter. Last night he fought at Shun Tin Estate. Nothing else. I want to say where I was that night. I went to see a movie together with my two schoolmates. One schoolmate is called HUI Sum tai, and the other one is called Shek Chai. That night, he came up to look for me to see a movie. At ten o'clock, I came down to the theatre. We watched the 11.30 show.   After watching the show, he also slept at my home.  That is all ."

On the 11th of November last year, however, he made another statement, apparently an uncautioned statement.  In this statement, he elaborated upon his movements on the night of the 30th of October 1982 and gave details as to his visits with friends and of the theatre to which he went to see the movie. All three statements were admitted in evidence without any challenge. These are Exh. P1, P3 and P10 respectively.

6. Upon his arrest on the 17th of February, 1983, D3 made a cautioned statement saying that he was not at the scene at all. He gave details of his movements. He said that he was playing basket ball in the playground in the Shun On Estate with his friends till about 10 p.m. on the 30th of October. Then he walked to the Shun Lee Estate alone and drank a cup of herbal tea.  He returned home and remained at home until the next morning.   He went to bed about 11 o'clock. The next morning he watched television and learned of the murder that took place at the Shun Tin Estate. He thought that this might be done by a group of 'Lo Fuk Chai' Triad Society which had a dispute with group of 14 Triad Society at the Shun Tin Estate. He often heard that they had frequent disputes. He had never known the deceased, LAI Man-nin, and he had no connection with that case at all.

7. He was Present on an identification parade in which he was identified by no less than three persons. After the parade, he was cautioned again and was asked whether he would care to explain how he came to be identified. Under caution he said as follows:

"I remember that I once quarrelled with CHUNG Chi on at Shun Tin Estate because he had beaten my friends before. So, I suspected that he had conspired with other persons to point me out. That is my explanation. Actually, I haven't gone to the scene of crime; took no part in chopping people."

The trial began on the 12th May, 1983. On the 12th May, 1983, D1 gave a notice of alibi which reads:

8. The following day, the 13th of May, 1983, counsel for D3 also served a notice of alibi which reads:

9. In the course of the trial, counsel for the prosecution was allowed, after objection on behalf of the defendants, to put forward both notices of alibi as part of the prosecution evidence.  Dl's notice is Exh. P13 and D3's notice is Exh. P14.

10. At the end of the prosecution case, counsel for D3 submitted for various reasons that the learned trial judge should withdraw the case against D3 from the jury. Having heard him, the judge said at page 136:

"If I were sitting as a district court judge, it might be a different matter, but as a matter of law, I must rule there is a case to answer. The 3rd defendant's application is refused."

In the event, the 1st and 3rd accused elected to remain silent.  D2 elected to give evidence and called two witnesses in support of his alibi. No useful purpose will be served in repeating D2's evidence. Suffice it to say that he gave a detailed account of his movements on the 30th of October, 1982 from about 8.30 onwards as to where he went, why he went, that he went with friends to see a movie, played billiard and the form of transport they took, and then how they returned home. In short, they were away from the scene until nearly 1 o'clock in the morning of the 31st of October.

11. The 1st ground of appeal which is common to D2 and D3 is that the judge was wrong in law for not directing an acquittal of the two defendants at the close of the prosecution case, having regard to the poor quality of the visual identification. This eventually turned on the unreliability of the prosecution witnesses No. l to No. 4 inclusive.

12. Learned counsel relies on the words used by the judge in rejecting the application of submission of no case to answer. it is further contended from his observation about the identifying witnesses in the summing up that it is reasonable to infer that the judge had substantial reservations about the reliability and the quality of the evidence. The judge directed the jury to the effect that the identifying witnesses were not paragons of virtue. He indicated that they might have triad connections. The scene at the incident was confusing. There had been contradictory evidence. PW4 said that he picked out D3 and 2 actors because their "faces were familiar" and that he was not very sure whether D3 was connected with the incident on the 30th October.

13. It is argued that, in the light of such weak evidence, the judge should have exercised his discretion and directed an acquittal. The contention is that had he been the judge of fact as well, he would not personally have convicted on such evidence.

14. In this regard, we are of the opinion that the reliability or credibility of witnesses is basically a matter for the jury. The trial judge, in his direction to the jury, gave them a full 'Turnbull' guideline. He conscientiously directed the jury as to the evidence of each of the first four prosecution witnesses regarding their character and their contradictions in evidence. In a jury trial, it is not a question of whether judge believes the witnesses but whether the jury believed or rejected the evidence of the prosecution witnesses. We believe that the proper guideline is contained in Galbraith ⁽¹⁾, which is summarized in Archbold at Cap. 4 para. 386 as follows:

This test is no different from that applied in the case of WONG Ching-wai ⁽²⁾, which put the proposition conversely.  In that case the learned Chief Justice said:

It is clear that when credibility of witnesses is in issue, the judge should leave the case to the jury. We are of the opinion that in the instant case, the trial judge took the proper course.

15. The 2nd ground advanced by D3 is that the judge erred in law in ruling that the prosecution be permitted to adduce as part of his case a notice of particulars of alibi served on behalf of the 3rd defendant; and in his direction to the jury as to evidential effect of that notice. It is contended that the alibi notice is not a statement, let alone a voluntary statement, but is no more than a simple procedural device. Secondly, in allowing the prosecution to make it part of his case, the defence case was prejudiced because it affected D3's ultimate decision to remain as to whether to give evidence or not. Lastly, it is argued that its probative value is out-weighed by its prejudicial effect.

16. The requirement for a person indicted before the High Court to give alibi notice is laid down in section 65D of the Criminal Procedure Ordinance, Cap. 221.  Sub-section (1) provides that:

"On a trial on indictment the defendant shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi."

Sub-section (4) provides that:

"Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi."

Sub-section (5) provides that:

"Any notice purporting to be given under this section on behalf of the defendant by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the defendant."

17. Having regard to the aforesaid provisions, it can hardly be argued that a notice of alibi is not a statement. It is indeed a procedural device, but that does not deprive it of its natural character of being a statement at the same time. We are also of the opinion that such alibi notice is admissible at the instance of the prosecution as a general rule. (Brigden ⁽³⁾)  It is not a statement obtained by violence, threat or inducement held out by the authority. It is given in compliance with the requirement of the law. Nor is it a confession. Even if it infringes the defendant's right of silence, it is an infringement imposed by the law of the land and voluntarily accepted by the defendant for his own benefit.

18. The case of R. v. Watts ⁽⁴⁾ is not an authority against the admissibility of an alibi notice as part of the Crown's case. It does no more than condemn such practice used "as a matter of course" and warns prosecuting counsel to consider very carefully before they take that course. The first example given by the court in "Watts" case ⁽⁴⁾, if valid, would apply equally to a statement under caution made by the defendant giving details of his alibi and of the witnesses available to support it, a not infrequent occurrence. It could hardly be suggested that the prosecution should refrain from putting in such a statement because of the possibility that the defence might elect to stand upon a submission.   (see Archbold page 427).

19. As to the probative value of the notice, counsel for prosecution was justified in the present case in putting it in. If it had no other probative value, at least it would serve to contradict the exculpatory statement made by D3 on his arrest and might discredit the evidence that is contained in that statement so as to influence the jury to place less weight upon that statement. Its probative value lies by detracting from the credibility of the statement made by D3 on arrest. As D3 would be entitled to rely upon the statement as evidence in his favour, it is proper for the prosecution to mount an attack upon the truth of that statement.

20. The question which we have to consider is: was there a general misdirection on the issue of lies and, further, was there a particular non-direction or misdirection on the effect of those lies this in relation to the 2nd and 3rd defendants.

21. We think the answer to the first part to be in the negative though the choice of expressions is open to some criticism.

22. The direction given was this:

"Only if you are satisfied that a defendant - in this case the 2nd defendant - has lied to the Court for the sole purpose of avoiding his conviction can you draw an inference of guilt from those lies. You must look for the reason behind any lies that have been told, because there may well be a perfectly innocent explanation. Now this also applies to lies that are told out of Court. It is possible to draw an inference of guilt from these lies."

23. A somewhat similar direction was given in respect of the 3rd defendant.

24. R. v. Lucas ⁽⁵⁾ sets out the criteria to be employed.   The motive for the lie, before a lying statement made out of Court can mount to corroboration, must to be a realisation of guilt and a fear of the truth. The lie must be deliberate and it must relate to a material issue and the statement must be shown to be a lie. Lies told in Court, which fulfill all the criteria, are available for consideration by the jury as corroboration.

25. We do not think Lucas ⁽⁵⁾ to have intended to change that which we believe to be the basic principle that lies by themselves do not prove guilt but that they go no further than confirming or tending to support other evidence. We are not here concerned with the issue of corroboration as either desirable or as a matter of law.  In these circumstances a trial judge must be very careful to avoid giving the impression to the jury that lies by themselves may amount to proof of guilt.

26. Here it would have been advisable for the Judge to have said no more than that lies, if they existed, might discredit the contents of statements made in his own favour by the 3rd defendant - which statements lay for their consideration - and tend to support evidence going to the guilt of the 2nd defendant.

27. We appreciate the reality that, if an accused is shown to be a liar on a material matter, any jury would tend to envelop this into their consideration of his guilt or innocence. We further appreciate that the 3rd defendant did not give evidence in his defence.

28. In respect of the 2nd defendant the Judge directed the jury, in the particular, as follows:

"Well, if you think that the 2nd defendant has lied to the Court and to the police, or to the police, you must ask yourselves why, before you draw any inference of guilt from those lies: Was it purely to avoid conviction If not, just ignore his evidence, pay no attention to it and, of course, if you think his evidence may be true, then you will acquit without further ado."

29. Of the 3rd defendant he said:

"But so far as the 3rd defendant's notice of alibi is concerned he says that he was on the podium of `Tin Kuen House with the 1st defendant, but his cautioned statement of the 17th February, that is exhibit Pll, put him sitting at home on his own, which is very different, and both these documents cannot be correct. It is up to you what, if any inference, you draw from the discrepancy."

30. We feel that these comments taken with the general direction and without a further direction on the lines of Lucas ⁽⁵⁾ may well have left the jury with the wrong impression. The second part of the question we posed ourselves is therefore answered in the affirmative.

31. Ground 3 of the appeal filed by D2 and ground 4 filed by D3 are identical in terms. The complaint is that the trial judge misdirected the jury as to the evidential effect of the out of court statements made by the two defendants.

32. With regard to the out of court statements, the judge directed the jury that out of court statements were not evidence of the truth of what was in the statement and could only be used as evidence of contra dictions or lies. As was said, both defendants made out of the court statements upon arrest, upon being charged and in the case of D3, in his alibi notice.

33. The Crown concedes that in this respect, the judge misdirected the jury by failing to have regard to the case of CHENG Chiu ⁽⁶⁾, in which it was held that:

At page 57, the learned Chief Justice said inter alia:

"We take the view that, if we have correctly analysed the English law as being - that a self-serving statement admitted at the instance of the Crown is evidence not of the truth of its contents but only of the defendant's attitude at the time that law ought not to be followed in Hong Kong. Once evidence of a denial has been admitted, it should be there for all purposes. It should be for the jury to attach to it such weight as they think fit, as part of the general evidence which is put before them."

We cannot accept Crown counsel's argument that because it is implicit in the jury's  verdict against D2 that they did not believe that he was somewhere else at the time of the murder that no prejudice have resulted to him. Such statements were some evidence in his favour and ought to have been left to the jury.

34. D3 having made cautioned statements which were contradicted by his alibi notice, their exclusion is perhaps not so serious. But there is, in addition, his consistent conduct of denial, his statement in answer to the charge of murder. We do not accept that this is covered by the evidence of CHUNG Chi-on himself. In answer to the charge, D3 did say that CHUNG Chi-on might have a grudge against him and deliberately framed him. All these statements and the alibi notice were produced by the Crown as part of the prosecution case. As such, they should be taken as evidence fit for the consideration of the jury even though those statements were exculpatory. The judge failed to direct the jury to take such cautioned statements into consideration. On the contrary, he directed them that they could ignore such statements if they found that the defendants told lies in order to avoid conviction.

35. Ground 5 as filed by the 3rd accused is relevant to his application only. It complains that the judge misdirected the jury there was evidence from PW4, LUNG Wai-kwok, that D3 was present and participating at the scene of the offences. The complaint is that PW4 did not again identify in court the person he had already identified on the identification parade. Counsel submits that the judge erred in permitting the Police Superintendent who conducted the identification parade to make good this defect by way of hearsay evidence that PW4 had in fact identified D3 at the identification parade.

36. He says the judge further misdirected the jury on facts as to the evidence given by PW4 to the effect that all three defendants carried water pipes at the time and place of the offences. Page 90 of the transcript is the evidence by PW4 regarding this identification parade.  Having said that he picked out  three persons, the sequence of his evidence was thus:

37. In his direction to the jury concerning this identification, the judge said :

"At the second identification parade,   he picked out the 3rd defendant and 2 actors. He also was told that there were 3 suspects on parade and he gave their numbers to the superintendent, but he does not know the names of the people he picked out and he can't identify the 3rd defendant in court. In fact, his evidence is that the faces merely looked familiar and he says that this is what he told the police, not that they took part in the attack. He's not sure if they did take part in the attack, but, of course, this is not what Superintendent Braithwaite says."

38. When one considers identification evidence generally there are two clear and distinct aspects. One is the act of identification itself. The second is that it makes a statement. So far as the act of identification is concerned, it may be proved by evidence other than from the person who originally made it for the question of hearsay evidence does not arise. However, the statement aspect of that identification and in particular the contents of it,  may not be proved by third party evidence unless the case falls within a recognised exception to the hearsay rule and there arises no special exception in relation to identification evidence. (Sparks ⁽⁷⁾; R. v. Christe ⁽⁸⁾).

39. As long as the distinction between the act of identification and the statement or its contents is kept in mind,  no difficulty emerges from any of the authority to which we have been referred. Burke and Kelly ⁽⁹⁾ and TANG Chi-keung ⁽¹⁰⁾ are examples of the former.

40. The actual identity of the person picked out is as much an integral and material part of the fact of identification as for example the paper on which an actual statement is written and verified, Osbourne and Virtue ⁽¹¹⁾ is a similar case, although its nature is not so immediately apparent with regard to the evidence of Mrs. Brookes as it is with regard to that of Mrs. Head But on further consideration, it will be seen that in the case of Mrs. Brookes, the question at issue was still whether or not an identification had been made at all and not what were the contents of the implied statement. The true effect of her evidence must have been  "I do not remember whether I picked out the man or not at that time. But if I did in fact do so, it was because I recognized him as one of those who raided the shop."

41. In that case, the question of its inadmissibility by reason of hearsay was not canvassed.   The decision turned purely and simply on the question of whether or not the evidence of the police officer contradicted that of the two ladies.

42. None of these cases is at variance with McLean ⁽¹²⁾ which was a clear attempt to prove by a third party evidence of the contents of a statement.

43. Applying the authorities to the present case, the evidence of Lung was not sufficient in itself to establish the full fact of an statement by virtue of his act of identification.   However, Lung did say that he identified three persons. The evidence of Mr. Braithwaite was therefore admissible to complete this aspect by showing that he did in fact identify, inter alia, the 3rd defendant. However, Lung did say that he identified the persons he did, not because he was sure that they were connected with the incident on the 30th of October, but becaue their faces were familiar. The purpose of the parade would have been explained to him.

44. Thus, Mr. Braithwaite's evidence as to the other aspect of the identification, namely: a statement that those persons were connected with the incident and were culprits was not admissible. This would be truly hearsay. In our view, the passage cited earlier might well have left the jury with the impression that it was admissible. This misdirection, of course, relates only D3. However, the misdirections under ground 3 and 4 related to both the defendants, D2 and D3. And in our view taken together, warrants our concluding that the trial was not satisfactory.

45. Having coming to this conclusion, we do not feel it necessary to deal with ground 7 which is a general ground repeating the grounds as to why the convictions of both defendants are unsafe and unsatisfactory.

46. For the reasons aforesaid, the appeal is allowed, the conviction is quashed and sentences set aside.

(1)    (1981) 73 Cr.App.R. 124

(2) 1979 Crim. App. No. 181

(3)    1973 C.L.R. 579

(4)    (1980) 71 C.A.R. 136

(5)    (1981) 1 Q.B. 720

(6)    1980 H.K.L.R. 50

(7)    1964 A.C. 964

(8)    1914 A.C. 545

(9)    (1847) 2 Cox Criminal Cases 295

(10)   1978 H.K.L.R. 16

(11)    (1973) 1 Q.B. 678

(12)    (1968) 52 Cr.App.R. 80

Representation:

Desmond Keane Q.C. & Graeme Mackay (D.L.A.) for appellants

Longley (Crown) for respondent