Wong Chun-leung v. The Queen
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CACC000733/1982 Headnote Prosecution witness apparently treated as hostile and his statement to the police relied upon as evidence supporting the Crown's case - conviction quashed.
BETWEEN
__________ Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A. Date: 7 December 1982 _____________ JUDGMENT _____________ McMullin, V.-P.: 1. The applicant was convicted in the District Court upon a charge of attempting to pervert the course of justice. He received a sentence of 21 months' imprisonmente. 2. He applied for leave to appeal against his conviction and sentence and that was refused on 15th September. He has since renewed his application for leave to appeal against both conviction and sentence. Upon the application to-day Mr. Mackay appears on behalf of the applicant. 3. The charge with which we are presently concerned arose out of an incident which occurred on 20th December 1981. The complainant in the present case. Chung Chun Kwan, was on his way on a trip to China on that date. When he was at the Immigration post at the border, a sum of $5,510 was taken from his rear pocket as he went through. He raised an alarm at once and an Immigration Officer who was nearby came to his did. That officer, together with a police officer who helped him, arrested the applicant on the spot. We understand now, although the matter was by no means clear from the record of the proceedings, that the complainant's money was found upon the applicant at that time. The applicant was taken into custody and no doubt that money was held by the police in the prospect of proceedings being taken against the applicant for the pick-pocketing offence. 4. The complainant had identified this applicant on the spot as being the person who had committed that offence. It is to be assumed that subsequently the applicant was liberated on bail because the offence with which vie are concerned arises out of what occurred, according to the complainant, over a month later on 23rd or 24th February. 5. He said that he was walking in Sheung Kwai Chung on that date when he happened to meet the applicant with another man. The Crown's case at the outset of the trial was clearly to the effect that the applicant had offerred money to the complainant in return for the latter agreeing not to go to court to give evidence against him In the event, when giving evidence, the complainant did not come up to proof when he was examined in chief. He would only say that the applicant had said words to the following effect: It does not matter if you are lucky or I am unlucky, I am willing to give the money back. I have not got it now. Tomorrow night will do." The complainant went on to say that he was confused and frightened and he did report to the police straight away. They took a statement from him about what had happened. The complainant on further questions being put to him by prosecuting counsel, went onto say that he had only thought that the applicant had wished to settle the matter with him. At that point the prosecutor was evidently disconcerted by the replies he was getting is evident that -he had expected the applicant to say something considerably stronger than that, something that would have amounted to an accusation of, the offence charged. However, no application was made to the court at that stage, and the statement which the witness had made to the police was presented to him, and he was asked to read it. 6. It would seem at the outset of this procedure he was being asked to refresh his memory. In the event, what appears to have happened is that the witness was treated as hostile. 7. The police statement was put in and he was in effect cross-examined upon it by counsel for the prosecution without objection either from the bench or from counsel upon the other side. The total effect of that examination and subsequent cross-examination and re-examination and of questions put by the court, would seem to be that the complainant was saying that he had merely given the gist of his encounter with the appellant to the police when describing what had happened on the day upon which the offer was said to have been made. That is to say, that he had told the police that he merely had the impression that the applicant was trying to buy him off. He could not account for the fact that the incriminating remark of the applicant which the complainant was said to have repeated to the police had been put in quotation marks by the recording officer when taking the statement from him. That officer was called and he testified that he was sure that he had accurately recorded what the complainant had told him. He said that he had not merely written the gist of what the complainant had said, in the process transforming a mere general impression in the mind of the complainant into an allegation of a positive attempt to buy the complainant off. 8. It was not disputed that as a result of the complainant's report on 23rd February, a trap was set for the applicant which resulted in his being arrested on the following day as he was about to take something out of his pocket and give it to the complainant. 9. Upon search the applicant was found to be in possession of some $6,000.00 odd. I pause there to remark that it is only at the hearing of this application that we have been made aware that two, sums of money were in question in the course of these proceedings. We were informed for the first time that the money which had been stolen from the applicant was found upon the applicant in January when he was arrested. We must assume that that was held by the police and was in due course returned to the complainant. This sum of $6,000.00 therefore was something quite apart from the money returned, although in the statement to which I shall later refer, that money was referred to by the complainant as restitution. 10. Had the complainant's evidence been the only evidence in the case, it would be impossible to say that the Crown had even made out a case to answer. Although the complainant said that he thought his evidence was very much the same as what he had told the police, that is clearly not so. The essential element in the offence being not that restitution was offerred before trial, but that money was offered to stultify any criminal proceedings. We do not know whether the Judge was clearly aware that two sums were being discussed. In either event the offer which was made would have been wrong. But it would have been very clearly wrong if the offer were one to buy the witness off by a further payment of money and not money to restore what had been stolen. 11. In dealing with this witness's evidente-and it must be remembered that he was the principal witness for the prosecution the Judge did not give any account of what his finding was in relation to the procedure which had been adopted before him and which he had permitted. There was, that is to say, no ruling as to whether he had regarded the witness as refreshing his memory by the statement or whether in fact he regarded him as being treated as hostile. We think however that the better view is that, in effect, the prosecution was treating its own witness as hostile. The proof upon which the prosecution were relying was obviously directly at odds with what the witness was prepared to say in, court, although he did dilute his evidence in various ways by a somewhat confusing going backwards and forwards upon his statement and his evidence. 12. At all events, however he regarded the statement made by the complainant witness, the trial Judge appears to have put it to a purpose which was improper. On the second page of his judgment he says:
13. Mr. Wiltens for the Crown very properly concedes that that was a grave misdirection. If the statement was treated as contradicting the witness's evidence, the effect would be the normal effect following upon such a procedure, that is to say, the statement would have been useless for any purpose as evidence. In the absence of anything more, it was incapable even of showing a prima facie case. 14. There was, however, the cautioned statement taken from the applicant after his arrest by the police on 24th February. Mr. Mackay for the Crown concedes that it is a confessional statement. It goes as follows: "The man whom I had stolen his wallet, I spoke to him telling him not to attend court to testify against me and I would return the money to him as compensation. On that day I did not bring along the money and I told him to wait for me the following day at the place where I met him. As a result today I brought along $5,510.00 for him but I was caught by the police. I do not know that it is an offence to do this. I hope you will give me a chance." We note that there again is the curious fact that the statement upon which the Crown relied refers to the exact sum which had been taken from the complainant originally. The sum found upon the applicant when he was arrested in February was $6,000. However, we accept what was told us by Counsel for the Crown when he said that two sums of money were involved and not merely one sum which was offered as restitution on the subsequent occasion when the complainant and the witness encountered each other. By itself, if nothing was to be said, in derogation of the court's decision, that would be a sufficient ground to support the conviction. We think however that Mr. Mackay has made a valid Point when he says that the Judge's opinion of the weight to be given to the confessional statement must have been coloured by the fact that he clearly had placed reliance upon evidence of a quite inadmissible character. He regarded not the complainant's evidence but the statement with which the complainant had been confronted as constituting at least a prima facie case. Having fallen into that error, we cannot be certain that he would have been sufficiently satisfied with the confessional statement alone, itself somewhat ambiguous as to the nature of the offer, a factor which had it been brought to the Judge's attention, might have been further enquired into and resolved. 15. At all events, albeit with some reluctance, we think that what occurred was an error, a misdirection of sufficient gravity to oblige us to say that we do not think the applicant had a fair trial. For these reasons therefore we treat the hearing of the application this morning as the hearing of the appeal, we set aside the conviction and set aside the sentence imposed as a result thereof. |