Ly Cam-sang and Another v. The Queen
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CACC000751/1982
BETWEEN
-------- Coram: Hon. Huggins, Ag. C.J., McMullin, V.-P. and Yang J.A. Date: 26th July, 1983. __________ JUDGMENT __________ 1. The following are reasons prepared by the Court. 2. The Appellants were convicted of murder in July last year. They both filed notices of application for leave to appeal against conviction on the 30th of the same month. Their notices of application however did not include any grounds of appeal. These notices were rejected and no amended notices were lodged until the time for appeal had expired. The Court had no jurisdiction to extend the time and their applications were dismissed. On 22nd April 1983 His Excellency the Governor referred this case to the Court of Appeal pursuant to Section 83P(1)(a) of the Criminal Procedure Ordinance to consider the case as an appeal by both Appellants. 3. It was not disputed that at about 4 p.m. on the 14th February 1981 a group of six or seven armed men attacked a youth Wong Wing-shun (Ah Lung) with weapons, as a result of which he died from his injuries. The Crown's case was that the First Appellant acted as a lookout during the attack whilst the Second Appellant counselled and procured the crime. The issue in the case was whether the Appellants participated in the killing. 4. The Appellants and the deceased were members of the Wo Hung Shing Triad Society, so was the deceased's friend Leung Wah-ming (Ah Ming). Indeed a number of Crown witnesses were also members of the same Triad Society. The Crown adduced evidence to show that the killing had a triad background and that the animosity which the Second Appellant harboured towards Leung Wah-ming in particular and also to a certain extent towards the deceased stemmed from a triad dispute. For example PW36 Chan Shu-tong, himself a member of the same Triad Society, said in evidence that in or about 1978 the Second Appellant accused the deceased and Leung Wah-ming of being "turncoats" and hit Leung Wah-ming with a tea pot. There was then a talk between the Second Appellant and Leung Wah-ming and the matter was settled, but PW36 said it was apparent that "both of them were not happy". Then there was another incident in November 1980, When the Second Appellant told PW36 and a few others to chop Leung Wah-ming and the deceased, giving them knives to do so. 5. PW16 Leung Wah-ming in his evidence referred to an incident that took place as long ago as 1970. He was at the time already a member of the Second Appellant's triad group. He assisted the Second Appellant in operating an aquarium stall in an alley, and a certain Tang Kuen-sang (DW1) came and prohibited them from running a stall there. PW16 went on further to say that in 1972 he and his friend the deceased split from the Second Appellant's triad group and that the breach continued right up to the time of the deceased's death. Then there was what has come to be described as the Madrid Restaurant incident, which occurred on the day before the killing. On that occasion PW16 and his friend were having a drink in that Restaurant and a slight misunderstanding arose between his friend and another customer. 6. PW39 So Wai-shing gave evidence that the Second Appellant had officiated at a ceremony for his initiation into the Wo Hung Shing Triad Society and that some months before the killing the Second Appellant said Leung Wah-ming was a turncoat and that should the deceased continue associating with him then the deceased "would put himself in a disadvantageous position". PW39 then referred to an incident one or two nights before the killing when he and several members of the Wo Hung Shing Triad Society went on a frolic of their own and without the knowledge of the Second Appellant to the Madrid Restaurant to try and negotiate with the proprietor to be "chuckers-out of that restaurant". PW40 Chan Kwok-ping was also a member of the same Triad Society. In his evidence he said that at the end of 1980, the Second Appellant had said that his relationship with Leung Wah-ming and the deceased was not very good. 7. Mr. Cagney submitted for the Crown that the evidence of those Crown witnesses was adduced to show animosity and motive, and also to make it quite plain that nothing was concealed from the jury. We shall discuss this aspect of the case more fully when we deal. with the Second Appellant's appeal. 8. The Crown called evidence relating to an incident that took place on the 13th, i.e. the day before the deceased's death. PW40 Chan Kwok-ping gave evidence that the Second Appellant produced two knives and handed them to PW39 and told him and some other men to look for Leung Wah-ming and the deceased at the Madrid Restaurant. He, together with the First Appellant, PW39 and some others pretended to look for the intended victims and later told the Second Appellant that they were unable to launch the attack because there were policemen there. 9. PW39 was clearly the key witness in the case. He described how, on an occasion, he, the First Accused and two other fellow members of the Wo Hung Shing Triad Society were walking along Yuen Long Main Road and the Second Appellant said to him that Leung Wah-ming was having tea inside the Anna Restaurant and. he told PW39 to have both the hands and legs of Leung Wah-ming chopped or broken. Then the Second Appellant went into the Ho Sheung Fung Restaurant nearby and brought out a meat chopper from the kitchen and handed it to PW39. PW39 did not accept the chopper and said he was not going, whereupon the Second Appellant returned the knife to the kitchen. PW39 went on to say that the Second Appellant then told him and the others to wait, went away and returned later with some knives. When PW39 saw the Second Appellant approaching, he left the spot where he had been waiting and walked towards the entrance of the Chartered Bank nearby. Then he heard the First Appellant call out to him, but he did not answer and continued walking and went to Tung Lok Theatre. Three or four minutes later, PW39 saw the First Appellant running alone towards him from the direction of the Chartered Bank and the First Appellant said to him that if any police officer should ask if he had seen the First Appellant he should say no. Now the Judge in his summing up put the date of this incident as the 14th February. PW39 did not make it clear in his evidence what date it was but it must have been the same day as the day of the killing. There are only two other important pieces of evidence for the purpose of this appeal : (1) that some four or five days later the First Appellant described to PW39 how the deceased was attacked, and (2) that after the First Appellant's arrest, PW39 met the Second Appellant and the Second Appellant asked him if he had informed on the First Appellant, threatening to stab him if he had done so. 10. PW39's evidence about First Appellant's running past him is in part supported by the evidence of two boys PW14 and PW15. PW14 said that on the 14th February 1981 he saw the First Appellant running away from the scene of the killing. PW15 however said that the First Appellant was walking "in quite rapid paces". Neither referred to First Appellant speaking with PW39 or indeed to seeing PW39 in the area. 11. The only eye-witness account was given by a lady PW10 Ms Wong Lo-tak who simply said she saw the deceased having a quarrel with six or seven men outside the Madrid Restaurant and was stabbed. Whilst she knew the First Appellant she made no mention of him or the Second Appellant. 12. We shall now deal with A1's appeal. He did not give evidence. 13. The four grounds of appeal are:
14. In addition the First Appellant also adopts the Second Appellant's third ground of appeal relating to the admission of PW39's statements to the police and his deposition. In relying on this ground, Mr. Sedgwick for the First Appellant adopts Mr. Mathew's submissions, which will be discussed below. 15. On the First Ground, Mr. Sedgwick contends that there was evidence upon. which the jury could find that PW33 was an accessory after the fact. If the jury so found, then PW33 was in law an accomplice. The usual warning as to corroboration of accomplice's evidence should therefore have been given. He refers to Davies v. D.P.P. (1954) A.C. 374 where Lord Simmonds L.C. held (at pp400-402) that an accessory after the fact was an accomplice in respect of whom the usual corroboration warning must be given. In England, by Section 1 of the Criminal Law Act 1967 the distinction between felonies and misdemeanors was abolished, and this, Mr. Sedgwick argues, had the effect of abolishing (a) the offence of being an accessory after the fact to felony, and (b) the offence of misprision of felony. By Section 4 of the Act, a new offence of assisting offenders was created, replacing the offence of being an accessory after the fact to felony. By Section 5 a new offence of concealing offences was created, replacing the offence of misprision of felony. No provision comparable to Section 1 of the English Act has been enacted in Hong Kong. It follows that the distinction between felonies and misdemeanors remains law. By Section 91(5) of the Criminal Procedure Ordinance, the offence of misprision of felony is abolished and by the same section a new offence of concealing offences is created. Section 90 of the Hong Kong Ordinance creates the new offence of assisting offenders but there is no provision for the abolition of the offence of being an accessory after the fact to felony. Mr. Sedgwick argues that it must therefore follow that the offence of being an accessory after the fact to felony remains part of the common law of Hong Kong. 16. If that contention be correct, then it is incumbent upon the trial judge to (a) direct the jury what is in law an accessory after the fact, (b) direct the jury that whether a witness is or is not such an accessory is a question of fact for them, (c) direct them that if, they do to find, he is in law an accomplice, (d) and if they do so find, give them the proper warning as to corroboration. 17. It seems to us that Mr. Sedgwick is clearly right in his approach of the law, and Mr. Cagney does not seek to challenge it. Before we state our opinion on the issue, it is necessary to examine the evidence. 18. According to PW33's evidence, some time after the killing of the deceased, when he already knew that the Second Appellant had been arrested and later released upon a nolle prosequi, the Second Appellant told him to keep watch over the First Appellant and not to let him wander about. He put the date of this occasion at almost one month after the killing but more probably it was on 6th April 1981, as we shall see from the evidence of a landlady Madame Hui. PW33 said in evidence that after receiving the Second Appellant's instruction, he and the First Appellant found a cubicle in Hungham where the landlady Hui took down the identity card numbers of both PW33 and the First Appellant, and she was paid a rent deposit by PW33. Though the two men moved in on the 9th April, in fact the First Appellant rarely slept at the cubicle. The question that arose was therefore whether PW33 was harbouring a criminal, namely the First Appellant, thereby becoming an accessory after the fact to the felony of murder. 19. Before the renting of the cubicle at Hungham, PW33 was told by PW36 about the First Appellant's involvement in the murder of the deceased. PW33 asked the First Appellant about it but he was not told anything. Then they rented the cubicle and shared it for a period of time. So the position was that even before the renting of the cubicle PW33 already knew or at least had a strong suspicion that the First Appellant was involved in the murder. It was however not until towards the end of their stay at the cubicle that the First Appellant described to him how the murder was committed but stressing that he the First Appellant) only went with the other assailants but "did not do it himself". Shortly after this conversation PW33 continued to live with the First Appellant for a short while and then left the First Appellant to live in Yuen Long. 20. On the evidence, PW33 was clearly capable of being treated as an accessory after the fact. A warning on corroboration on the lines suggested by Mr. Sedgwick should therefore have been given to the jury. In the light of the evidence that has been adduced on this issue, the only prejudice suffered by the First Appellant in the present instance is that the jury might have accepted too readily his statement to PW33 that he had gone to the scene of the murder with the other assailants but himself took no part in it. Had this been the only ground of appeal, it might well be a proper case to apply the proviso to Section 83(1) of the Criminal Procedure Ordinance. 21. Moving now on to the Second Ground of Appeal, it is necessary to cite the three passages where the learned judge directed the jury on the question of corroboration of PW39's evidence :
22. Mr. Sedgwick complains inter alia that the direction (a) was inadequate, (b) failed to mention that any corroborative evidence must inculpate the accused in some material particular, (c) instead of directing the jury on what was capable of being corroboration, told the jury PW39's evidence "is corroborated" by the First Appellant's own statements, namely, his statement to the police and his letter written from Pik Uk Prison. 23. Rightly or wrongly the judge clearly indicated , to the jury that PW39 could possibly be an accomplice. Looking at the summing up as a whole, whilst that direction could have been fuller and more explicit, the major criticism does not lie in its. alleged inadequacy but in other areas. One area of criticism, which may be explained, is the judge's failure to direct the jury that any corroborative evidence must implicate the First Appellant. Taking a practical and realistic view however, if the jury accepted the First Appellant's statement or letter as evidence corroborating PW39's evidence, then there could be no question that the statement and the letter necessarily implicated the First Appellant. A more serious criticism is that instead of pointing out to the jury that that statement and letter were capable of corroborating PW39's evidence, he said that they did corroborate PW39's evidence. Whilst it could be argued that the error here is so serious that the proviso could not be properly applied, we do not find it necessary to decide that point. 24. The Third Ground of Appeal coand be shortly dealt with. That PW39 is a disreputable character is undeniable. The judge referred to his previous convictions, and the jury could not. have overlooked the fact that he was an active triad. Mr. Sedgwick relies on an obiter dictum of Lord Hailsham in D.P.P. v. Kilbourne (1973) A.C. 729, at 740D-E that the practice of directing the jury to look for corroborative evidence in the case of an accomplice should be adopted for a disreputable witness. There was no discussion, nor were any authorities cited. However, in R. v. Beck (1981) 74 Cr.App.Rep. 221 at 228, the Court of Appeal held :
25. In the absence of any clear authority to the contrary, we conclude that a trial judge is not obliged to give an accomplice warning in respect of the evidence of a witness of bad character. 26. The Fourth Ground raises two issues. The first question is whether the statement was made and the letter written by the First Appellant. The second question is whether the statement and the letter amounted to admissions. 27. Respecting the statement, which is in fact a statement in answer to the charge of murder, there is a dispute as to whether the First Appellant said he was at the scene of the killing as an "on-looker" or a "look-out". The judge left it to the jury to decide what phrase was used by this Appellant. If the jury found that the phrase "look out" was used, then it clearly amounted to an admission. As to the letter, there was strong handwriting evidence that it was in this Appellant's handwriting, and the judge left it to the jury to decide whether the letter had in fact been written by him. The letter refers to the killing, and goes on to say, "It was done by me and several others". It is undeniably an admission. We find nothing in this last ground of the First Appellant's appeal. 28. The case against the Second Appellant was that he had counselled other persons to carry out the assault upon the deceased and had actually supplied those others with weapons for that purpose. It will be recalled that the Crown's contention was that this killing had a triad background and was the violent culmination of a long smouldering animosity between this Appellant and Leung Wah-ming and the deceased. 29. The first point taken by Mr. Mathew for this Appellant is that all of this evidence was irrelevant and highly prejudicial to his client. He conceded the right of the prosecution to adduce evidence of motive in the form of animosity directed against these two men, but he maintained that that should have been restricted to those specific incidents attested to by witnesses who described threats or exhortations by the Second Appellant directed against Leung Wah-ming and the deceased. There were, counsel said, only three incidents which were legitimately in evidence and which, if accepted by the jury, went to show both the alleged counselling and the motive for it. 30. Firstly, there was the evidence of PW36, who described an incident in November of 1980 referred to above. The reason given by this Appellant for the order to attack Leung Wah-wing and the deceased was that the two intended victims had proved themselves to be "turncoats". PW36 led the party there but instead of attacking these two men they were warned by him to leave, he having persuaded his party to wait for him some distance away. He then returned to the Second Appellant and informed him that the intended victims had already left. 31. The second of the three instances of counselling to which Mr. Mathew would restrict the legitimate evidence is to be found in the testimony of PW40, also referred to above. On the 13th February PW39 was instructed to go and chop Leung Wah-ming and the deceased. Once again, however, according to this witness, the instruction was disobeyed. 32. Finally there was the evidence of PW39 which has already been described. This is, as Mr. Mathew said, the only direct evidence against the Second Appellant on the charge of murder. 33. None of these episodes, Mr. Mathew said, afford support for the idea that the killing was a triad affair, but counsel's principal objection on this ground of appeal is to the considerable evidence adduced, apart from these episodes, to show this Appellant's status as a leading and active member of the Wo Hung Shing Triad Society. This, counsel said, is irrelevant to the proof of motive and can only have had the effect, and probably the purpose, of demonstrating a disposition towards the commission of acts of violence. 34. To this, Mr. Cagney for the Crown replied, that the cause of the attack on the deceased was so clearly a festering internal grudge within the Wo Hung Shing that some explanation of the triad background was essential to the proper understanding of what would otherwise have seemed to the jury a bizarre and inexplicable event. Further, he said, this Appellant's status was relevant and important as otherwise his authority to issue orders in the manner described by the witnesses might have lacked a credibility which the true picture would confirm. 35. Mr. Cagney maintained that insofar as this evidence could be said to have extended across the border of legitimate proof into the area of prejudice, the effect must have been minimal since virtually all of the important witnesses for the Crown were admitted members of this same society. 36. Mr. Mathew's rejoinder to the latter point - that there could not be, in this matter, a parity of prejudice between the witnesses for the Crown and the accused - is not convincing. The basic question still was whether evidence of the Second Appellant's connection with the Triad Society was admissible and, if so, whether the evidence actually adduced in that regard exceeded the needs of proof to the substantial prejudice of the Appellant. 37. We think that it would, in the circumstances of this case, have been virtually impossible in any event to have excluded all. reference to triad realities.. Furthermore, the available evidence supports a legitimate inference of internal triad discord as the motive for the Appellant's behaviour even though the full nature of the Appellant's dissatisfaction with Leung Wah-ming and the deceased was never made clear. The evidence discloses that they were, in his eyes, "turncoats" and that, given the triad society background, assumes a weighty significance on the question of motive in the light of the testimony which spoke of him not merely as a member but as a high officer of the Society. 38. One of the witnesses, PW40, described him as "the senior member". In the view of PW36 the Appellant was "a very high ranking official" with one man only above him. 39. Evidence of this kind, as well as the evidence of the several witnesses who said that they had been induced to join the Society by the Appellant, and also the evidence tending to show that there had been a split within the Society's ranks, was relevant and probative on the question. of motive because it helped to build up the picture of the Appellant as a man of power, possessed, in his own estimate and possibly that of some of his subordinates also, of the right to enforce his authority upon dissident members who had incurred his displeasure. 40. On the other hand, some evidence was led which, on Mr. Cagney's own admission, did not and was not intended to further the Crown's case as to the triad inspired motive. This evidence might, as Mr. Mathew complains, have tended to the prejudice of the Second Appellant. The principal instance of this kind, referred to above, is to be found in the evidence of PW39 who described a visit by a party of Wo Hung Shing members, including himself and the First Appellant, to the Madrid Restaurant several days before the date of the deceased's death. The purpose of this visit was, apparently, to forestall the attempt of a rival triad group to acquire the right to "protect" that establishment. Mr. Cagney himself elicited from the witnesses' evidence which confirmed that this episode had nothing to do with the incident of the 14th of February which resulted in the deceased's death. This evidence was led, Mr. Cagney said, for completeness, so that nothing should be hidden from the jury. In the view of this court this was clearly unnecessary and it did tend to augment the general impression of lawless behaviour on the part of the organisation of which the Second Appellant was said to be a leading member. 41. There was also certain evidence which was alleged to support the triad motive and which was of a very tenuous character. An example of this is found in the testimony of PW16, Leung Wah-ming, who described how in 1970, the Second Appellant had intervened successfully on his behalf in some unspecified trouble which the witness had encountered from persons frequenting the restaurant of which he was at that time the proprietor. At the instigation of the Second Appellant, Leung Wah-ming joined the Wo Hung Shing Triad Society a little later. 42. Mr. Mathew, not unreasonably, asked what legitimate connection this could have with the proof of a murder eleven years later. He took objection on the same ground to the evidence led from several of the witnesses touching upon the holding of induction ceremonies for triad recruits at a building owned by DW1 Tang Kuen Sang, the employer of the Second Appellant, who purported to give this Appellant an alibi for the 14th February. The Crown's purpose here was to establish a connection between Tang and the same Triad Society. In the end, that line of enquiry did not lead anywhere but, in the general circumstances of the case, such cross-examination cannot be said to have been impermissible. 43. Although, therefore, there is some substance in this complaint, it cannot be said that the bulk of this evidence was inadmissible or that that part of it which was not strictly relevant can, by virtue of any prejudicial effect it may have had, have outweighed the genuinely probative effect of the whole. For this reason also it may be said that the judge's warning to the jury to be on guard against the purely prejudicial potential of this evidence, brief though it was, was sufficient. 44. The second point taken on behalf of this Appellant arose from certain replies given by PW36 in re-examination. He had been pressed in cross-examination upon his reasons for deciding to cooperate with the authorities and to give evidence against the Second Appellant. What he said then was that he had decided to do so because of the "fierce and unreasonable" behaviour of the Second Appellant. Mr. Cangey pursued this point in re-examination and the witness said that he had come to know through reports by others that he was himself in danger from this Appellant and in the same way he had been informed that some people had been assaulted by this Appellant who had eventually killed someone. This was a direct reference to the death of the deceased and it was clearly based on hearsay. Objection was taken to this by counsel for the Appellant at the trial and the judge, in effect, upheld the objection, going so far as to say that evidence of that character could in some cases raise the question of discharging the jury. He did not think that the matter before him justified that course, but he promised to give the jury a direction in order to rectify the error. In the event he forgot to give any such direction. 45. To this objection Mr. Cagney can only reply that the jury must, in any event, have been made aware of the need to disregard that evidence by the very nature of the exchanges between Bench and Bar when the matter was raised by counsel. That was not of itself a sufficient answer and if this particular piece of hearsay evidence had bulked larger in the evidence as a whole, this deficiency in the summing-up might on its own have proved so serious as to have required this court to interfere with the verdict. But in the context of the case as a whole, it was at most an impermissible make-weight to a body of evidence of a much more substantial character implicating the Appellant in the affair and its effect upon the mind of the jury can only have been marginal. Insofar as it constituted a definite error it was clearly one which was curable by the application of the proviso. 46. We now come to the Second Appellant's Third Ground. 47. In the course of his cross-examination of PW39 with a view to destroying his credibility, counsel for the Second Defendant sought to establish that there had been a quarrel between him and Leung Wah-ming four or five days before the alleged murder. PW39 denied having had a quarrel with Leung Wah-ming at that time, but counsel for the Second Defendant was not satisfied with that answer and came back with questions in which he suggested first that there had been a dispute "over a girl" and, secondly, that - presumably as a result of that dispute - the witness had on the following day asked the Second Defendant to "find some people to deal with Leung Wah-ming" Thereupon the judge intervened, indicating his view that counsel was bound by the answer he had received unless he was intending to call evidence "to support that line of cross-examination". Some argument on the point ensued and the upshot was that the judge said :
What had been denied was the quarrel. The witness never answered the question about the subsequent conversation. However, it is clear that the conversation was not only directly related to, but depended upon, the. alleged dispute on the previous day. The substance of the ruling therefore appears to have been that, although counsel was entitled, on the basis of his instructions, to put to the witness that there had been a quarrel, he could not pursue the matter with a view to obtaining a retraction of the witness's denial. It is not clear to us why the judge took the view that he did, but it may be that in a moment of aberration he overlooked the fact that this was cross-examination and not examination-in-chief. 48. Of course there are some circumstances in which counsel ought not to put matters to a witness unless he is prepared to adduce evidence in support of them. That is a matter of professional etiquette. However, matters which are part of the client's case may be put to a witness, upon instructions, even though it may not be intended to call evidence to support them, provided that counsel has no reason to believe they are untrue. If the matters are denied, counsel runs the risk that the judge will comment adversely, i.e. that he will point out to the jury that no supporting evidence has been adduced and may suggest that the witness's evidence, standing has it would) untarnished by the allegations made, was probably worthy of belief. We saw no reason why counsel in the present case should not have pursued the line of cross-examination upon which he had embarked. The alleged conversation was clearly relevant to matters which were in issue before the jury and it was wrongly excluded. Mr. Mathew properly conceded that this ground of appeal might not be enough to justify setting aside the verdict against his client, but on any view it was a matter which had to be thrown into the balance with the other errors which were alleged. 49. Finally, complaint is made of the admission in evidence of three statements made by PW39 and of his deposition before the committing magistrate. The circumstances of their admission were that counsel for the Second Defendant wished to suggest that, by reason of a number of inconsistencies between what the witness had said previously and what he had said at the trial, he was not a witness of truth. The relevant passages in the statements and deposition were put to the witness in cross-examination and he agreed that he had said what was recorded. The deposition was, of course, in English and, as counsel desired to ask whether part of the witness's evidence at the trial had been given in the magistrates' court, the whole deposition had to be translated to the witness. The judge ruled that if it were so read it had to be made an exhibit. The other statements were made exhibits when counsel for the Crown in the course of re-examination called on the witness to produce them. Their admissibility had been the subject of argument before counsel began to re-examine. As a result of that argument some passages in the statements were expunged and the judge then ruled in these words :
Mr. Mathew submitted that this contained a fundamental error in that the general rule was that a case must be decided upon direct evidence given at the trial and not upon statements recorded in writing previously, even if made by witnesses who had been called at the trial : whilst it might be relevant to show that the witness had made a previous inconsistent statement, it was not normally relevant to show that he had made a previously consistent statement : continual repetition of a story did not make it more credible. An exception existed where it was alleged that the whole or part of the evidence given by a witness at the trial was a recent invention. In such a case the fact that the witness had made a statement to the like effect at a date prior to that on which the invention was alleged became material. 50. It was, as we understood it, the contention on behalf of the Crown that this was a case where recent invention was alleged and that it was on the basis of such allegation that the judge admitted the statements and deposition after exercising his discretion to exclude some parts of them. Mr. Cagney said that it was not necessary for him to put it to the witness in so many words that he had recently invented his evidence if it was apparent that recent invention was being alleged : Choi Chi-keung v. Reg. (1980) H.K.L.R. 391. Mr. Mathew said that this was not a case where recent invention was alleged and submitted that, if a suggestion of inconsistency between a witness's evidence at a trial and the previous. statement were allowed to be interpreted as an allegation of recent invention, the door would be thrown wide open for the admission of previous statements. We agreed. All that was suggested to this witness was that part of his evidence was not true, and an allegation of recent invention could not fairly be read into the cross-examination. Accordingly, the admission of the statements and deposition could not have been justified on that ground. As we have seen, it was not on that ground that they were in fact admitted : it was "to show the consistency in other matters", and that could never be justified. 51. Even if we were wrong in holding that the necessary foundation for admitting these documents had not been laid, there was a further contention that the judge failed adequately to warn the jury as to the use which it might make of them and, indeed, gave a misdirection. He said they were
The correct approach would have been to emphasise that they were not admissible to establish consistency but rather to negative inconsistency. It is true that later on the judge said :
We did not think that was sufficient to enable the jury to understand the rather subtle distinction which needed to be drawn, particularly in view of the earlier misdirection. 52. The evidence of PW39 was of great importance in the case and it was vital that the jury should have all possible help in its evaluation of that evidence. This it did not receive and we did not think that the conviction could stand. 53. It only remains for us to deal with another matter. In the course of the hearing something was said by counsel which appeared to suggest that this court wished grounds of appeal to be "more full" than was customary in England. That is not so. Misunderstanding may have arisen as a result of our recent statement on "skeleton arguments". Grounds of appeal and a skeleton argument serve two entirely different purposes and need to be in entirely different forms. A skeleton argument is what its name indicates : see Costain International Ltd. v. Attorney General, Civil Appeal 1983 No. 22. Grounds of appeal should not contain argument but should set out as concisely as possible the error alleged and, where possible, identify (not by quotation but by reference to the page number) the part of the record where the alleged error can be found. Representation: Mr. A. Sedgwick (D.L.A.) for 1st Appellant. Mr. John Mathew, Q.C. and Mr. J. Stevenson (Y.H. Lau & Co.) for 2nd Appellant. Mr. Cagney (Legal Department) for Crown/Respondent. | ||||||||||||||||||||||||||||||||||||||||||||||||||