The Queen v. Leung Tung Wing

IN THE COURT OF APPEAL

1995, No.384
(Criminal)

HEADNOTE

Evidence –Mixed statement partly admission and partly exculpatory – Defendant not giving evidence – Direction for judge alone same as for jury.

Counsel’s duty – Grounds of appeal – Unfounded allegations of misdirection – Obligation to ascertain true facts from trial counsel or court record.

IN THE COURT OF APPEAL

1995, No.384
(Criminal)

BETWEEN

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Coram: Hon. Litton, V.-P., Stuart Moore and Seagroatt, JJ.

Date of Hearing: 8^th December 1995

Date of Delivery of Judgment: 14^th December 1995

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JUDGMENT

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Stuart Moore J. (giving the judgment of the Court):

1. This applicant was convicted on 18^th May 1995, following a trial in the District court before Deputy Judge Line, on charges of unlawful wounding contrary to section 19 of the Offences Against the Person Ordinance Cap. 212, and affray contrary to Common Law. He now applies for leave to appeal against both convictions.

2. The facts were very straightforward. On 24^th December 1993, at about 3.00 a.m., Wong Ying-tak received a wound to his right thumb following an argument over a bill at the ‘Sun Wo Kee Restaurant’ in Mongkok. The victim and a friend called Wong chi-Ming had been drinking at a nightclub before going to the restaurant, and the drunken behaviour of Wong Chi-ming in particular was both unruly and unreasonable. In the event, as Wong Ying-tak explained in evidence, he had to drag his friend away after the bill had been settled. Thereafter, Wong Chi-ming broke some glasses belonging to the restaurant and then started to kink a van parked in the street. At this stage Wong Ying-tak’s hand was chopped, and he went immediately to hospital for medical attention to the wound.

3. The incident, not surprisingly, gave rise to a grudge which manifested itself the following evening when an affray took place at the Sun Wo Kee Restaurant. That there was an affray was never in doubt. Twenty to thirty people at least were seen fighting in the vicinity of the restaurant and observers were put in great fear. Twelve knives and 7 other weapons were abandoned at the scene.

4. The Applicant was one of five men accused of participation in the affray and was alone charged with the earlier wounding of Wong Ying-tak. There was no evidence of identification. The case against him depended entirely upon the admissions he made to the Police together with such inferences as could properly and safely be drawn from all the other surrounding circumstances of the case.

5. The admissions against self-interest were coupled to self-exculpatory remarks, and these were contained in two records of interview made almost eight months later, on 10^th August 1994, when he was first questioned about the two incidents.

6. Mr. Mumford, who did not appear in the court below, advances several grounds of appeal.

7. Firstly, he submits that the records of interview ought not to have been introduced in evidence. As to this, it is quite clear that meticulous consideration was given to the questions raised about the voluntary nature of the answers written down by the Applicant himself in the statements. This emerges from the short but salient reasons which the learned Deputy Judge gave for reaching his decision to permit that evidence to be adduced.

8. There was no requirement, following The Queen v. Lam Wai-kwong and Ha Kwok-wah, Appeal No. 378/1985 to provide reasons, but these were very properly included in the Reasons for Verdict because the interviews provide the only area of evidential dispute in the trial. No criticism can be made of the approach adopted by the Trial Judge and such criticisms which are now made on behalf of the Applicant must necessarily fail.

9. The second ground of appeal amounts to a complaint that the learned Deputy Judge has approached the exculpatory parts of the Applicant’s ‘mixed’ statements to the Police in a way that is too narrow by treating those answers as ‘only providing evidence of what the Applicant’s explanation for his conduct was’.

10. The Applicant did not give evidence in the trial. The learned Deputy Judge had in mind R. v. Leung Kam-kwok (1986) HKLR 188, where Lord Roskill (at page 196) restated the law relating to ‘mixed’ statements that contain both inculpatory and exculpatory passages:

‘….. If an accused person in a statement not made on oath in Court denies his guilt, saying for example “I am not guilty: I was not there” and no more, that statement is not evidence of the truth of his absence from the scene of the crime and thus of the truth of his alibi. But if such a statement consists partly of an admission and partly of an explanation for example “I shot him: it was an accident” or “I shot him: I was provoked” the admission is plainly admissible and common fairness requires that the entirety of the statement should be admitted so as to show the precise context in which the admission was made, even though what is said by way of explanation or excuse is not evidence of its truth. Where the accused goes into the witness box and repeats the explanation or excuse on oath there is no problem. Where he does not go into the witness box it behoves the trial judge, when dealing in his summing up with the admission, in common fairness to the accused, also to refer to the accompanying explanation or excuse, adding if he thinks fit to do so that that explanation or excuse has not been supported by evidence on oath before the jury. It is then for the jury to evaluate the admission and the unsworn explanation or excuse as they think fit.’

Clearly any tribunal that is deciding an issue of fact, whether legally qualified such as a judge or magistrate sitting alone, or a jury of laymen would, in our judgment, have the same approach which is one of fairness and common sense.

11. Mr. Mumford suggested in the course of his submissions that any question of ‘doctrinal purity’ which might arise from the cases on this technical and somewhat academic aspect should be rejected. In saying that, he was arguing that there should be no difference between a District Court Judge’s approach and a jury’s so far as the consideration of an exculpatory statement is concerned which is, as we have already indicated, a view we fully support and endorse. However, it was his submission that the Trial judge had applied a different test to that which a jury would apply by rejecting as it were, out of hand, all the exculpatory remarks made by the Applicant without having taken them into account as if they were of no evidential value whatever. All we need to say about this submission is that time and again the learned Deputy Judge demonstrated from the Reasons for Verdict that he had taken into account the exculpatory remarks as well as those that were inculpatory. In particular, self-defence was raised by the Applicant in his interviews on both charges and this aspect was given close examination before the verdicts were reached. The matter was put beyond doubt where, on the last page of the Reasons, the Trial Judge has recorded that he gave himself a direction in accordance with R. v. Sharp 1 WLR. (1988) 1. We need only refer to the speech of Lord Havers at page 15 letter D to see what that direction is:

‘My Lords, the weight of authority and common sense lead me to prefer the direction to the jury formulated in Duncan, 73 Cr.App.R. 359 to an attempt to deal differently with the different parts of a mixed statement. How can a jury fairly evaluate the facts in the admission unless they can evaluate the facts in the excuse or explanation? It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast on the admission, and it is surely only because the excuse or explanation might be true that it is thought fair that it should be considered by the jury.’

12. Obviously, as a matter of common sense, where an accused has chosen not to go into the witness box, as the Applicant has done in this case, to give his version of events, any ‘excuse or explanation’ in an out-of-court statement would carry very little weight.

13. It is quite apparent for the reasons stated that the Trial Judge has not misdirected himself in his approach.

14. In the third ground of appeal, which deals with the wounding charge, it is not necessary for us to deal with every point that is made as to the shortcomings in the Prosecution’s case. It is quite clear to us that the Trial Judge was well aware of these and he set them out fairly and squarely in his Reasons for Verdict. What he particularly noticed when Wong Ying-tak and Wong Chi-ming gave evidence was tht they were not interested in saying anything that might lead to this Applicant’s conviction, but the one thing that both of them maintained was that Wong Ying-tak was deliberately chopped with a knife by someone. Deputy Judge Line expressed it in this way:

‘I found the description by Wong Ying-tak of seeing a shadow behind him and turning and raising his hand to ward off the blow and receiving the wound to his hand to be one that had the ring of truth to it ….. In his interviews, the Defendant said that Wong Ying-tak threw a dish at him and that “out of momentary fury I took out a vegetable knife from the shop. My purpose was to threaten Tak Chai. However Tak Chai pounced towards me trying to snatch my vegetable knife. As a result his palm was hurt.”……’

15. We cannot find fault with the approach taken by the Trial Judge that this was, on the evidence before him, a blow struck in momentary fury after drunken and provocative behaviour, that the knife could only have been in the Applicant’s hand and that there was no evidence in contradiction of the account given by the two prosecution witnesses that the man with the knife chopped once at the hand of Wong Ying-tak.

16. Turning, finally, to what is set out as 2A in the grounds of appeal, we come to the affray. Whilst we do not need to deal with all of the points raised, the most important of these is concerned with whether or not the learned Trial Judge misdirected himself in holding that the Prosecution had demonstrated to the required standard that the Applicant was not acting in self-defence.

17. It was common ground in the trial that, during the affray, chaos was created by the large number of men, many of whom were armed, fighting in the area around the Sun Wo Kee Restaurant. The only evidence to connect the Applicant to a particular incident which occurred during the affray, was his admission to the Police in the following terms:

‘The opposite party comprised 60 to 70 people, of which some were carrying knives. Our party only comprised ten-odd people. After both parties had scolded the others for quite a while, Ah Chuen toppled over a table; then someone slashed (at) me with (a) knife. I warded it off with a folding stool. Then I left.’

18. The Reasons for Verdict on this aspect read as follows:

‘Defendant was involved in fighting: he said that he used a stool to ward off a man with a knife. The question is whether the prosecution have demonstrated for sure that the Defendant was not acting in self defence. In my judgment they have done so …… the fighting by the Defendant was unlawful because it was not reasonable for him to use violence in these circumstances. It was not reasonable to be part of a confrontation between armed gangs expecting violence …… The contemplation of violence, its use, and the lack of self defence made me sure of D6’s guilt.’

Earlier in his Reasons, the Trial Judge had indicated that violence was ‘contemplated’ because the Applicant had asked ten or more friends to come to the Restaurant, although we should observe that there was no evidence to say they were all armed or that the Applicant knew that any of them were armed. The Trial Judge appears to have drawn the inference from descriptions of the fight, read to the Court from agreed statements, that at least some of the group with the Applicant were armed.

19. We do not doubt that there were reasons to find that the Applicant ‘contemplated’ violence that night. The most cogent reason referred to by the Trial Judge was that there had been agreed evidence called in the trial that, between 6.00 and 8.15 p.m. on 24^th December 1993, some fifteen or sixteen men had gone on three separate occasions to look for the bouncer of the nightclub. One of those in the group held a long piece of wood and it was he who told the manager of the nightclub that he was from the Sun Wo Kee and he asked the manager to get the bouncer for him. Clearly battle lines were being drawn up.

20. The Applicant had given Police an account of why he found himself at the scene of the affray. He put it this way:

‘There was a grudge between me and the bouncers of the Ngan Shing Night Club, we arranged to have a negotiation at our shop. I originally wanted to be reconciled with them so as to enable my shop to continue to do business.’

Mr. Mumford in effect submits that if others lived up to their past record, the Applicant might well have feared violence and might have been afraid to meet the others alone. He submits that negotiation does not imply violence but rather a meeting with a view to sorting out differences leading to a reconciliation.

21. This led Mr. Mumford onto what was probably, as it seemed to us, his most important point, and it appears at sub-paragraph (d). I will read it:

‘The learned judge misdirected himself in holding that paragraph 2 of the Summary of Facts had been agreed. The facts which were in fact admitted were at pages 8 to 13 of the Record and contain no such admissions.’

When Mr. Mumford refers to the Summary of Facts, paragraph 2, as not being part of the Agreed Facts this is a reference to the three visits by 15 to 16 men looking for the bouncer from the Nightclub on the evening of 24^th December 1993.

22. This is a very significant criticism of the Trial Judge, and, as we indicated during the hearing when Mr. Mumford was making his submissions, if that criticism had been justified it would have amounted to a material misdirection to the extent that it would undoubtedly have affected the outcome of this application.

23. As it turns out, from a simple exercise of checking the original notes of proceedings at trial, that criticism is wholly without foundation. The admissions had been made, and were exhibited under the letter ‘J’ at the trial but had not been copied as part of the case papers for the appeal. We wish to emphasise that it is the duty, and we emphasise duty, of counsel when appearing in this Court, having not appeared in the Court below, to check such information before making wild allegations about a Trial Judge’s conduct and handling of a case on such an important issue as this. The Trial Judge for his part had made it quite clear that there had been such admissions made in the trial. It was a simple matter to check from the record, or from Prosecuting Counsel at the trial or from any of the co-defending Counsel or perhaps, most obviously, from Counsel who originally represented the Applicant in the District Court. This was not done, and it was a serious omission. This omission by Counsel for the Applicant gave what appeared at first sight to be a cast-iron ground of appeal. In the event it will have given the Applicant false hope of success.

24. The Trial Judge, in our judgment, summed up the matter admirably and without misdirection in his Reasons for Verdict, and concluded as he was perfectly justified in doing from the available evidence, that this Applicant was involved unlawfully in the fighting that took place at the Sun Wo Kee Restaurant on the 25^th December 1993. He found that the fighting had arisen from a grudge with the bouncer from the Nightclub. He drew the inference that this was armed confrontation between 2 groups intent on doing battle with each other. There was no other sensible conclusion.

25. We refuse leave to appeal on all the grounds advanced and this application is accordingly dismissed.

Mr D.G. Saw, D.P.C.C. and Miss Rosaline Leung, C.C. for Crown

Mr. E.C. Mumford, Q.C. and Mr. Daniel Tang instructed by Messrs. Tang, Lai & Leung for the Applicant.