Ng Kai v. The Queen
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CACC000792/1969 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 792 OF 1969 -----------------
Coram: Rigby, C.J. Date of Judgment: 30 January 1970 ----------------- JUDGMENT ----------------- 1. The appellant was jointly charged, together with four other young men, on three separate and distinct charges of unlawful wounding. He was convicted upon two of those charges. He appealed against his conviction and at the conclusion of the hearing of the appeal I allowed the appeal stating that I would give my reasons at a later date for so doing. I now do so. 2. It is relevant at once to observe that the other four co-accused had already pleaded guilty to all three charges before another magistrate. The appellant alone pleaded not guilty and was put back for trial before the present magistrate who heard the case. 3. The case for the prosecution was that the appellant was one of a gang of young men who gate-crashed a private party that was being held at the Urban Services Department Staff Association premises at Wylie Road, Kowloon, on the evening of the 2nd August, 1969. Objection was apparently taken to them coming uninvited whereupon they, or some of them, proceeded to make a nuisance of themselves and beat up some of those present at the party. 4. The appellant, on is own admission, was one of those who had gate-crashed the party. He denied, however, that he took any part in the altercation that took place. He said that the cause of the trouble was that one of those with him had a quarrel with the man on duty at the door - who presumable and not unnaturally, objected to uninvited persons going in. He said that a few people then came out of the premises and he ran off, hailed a taxi and went elsewhere. 5. The case against the appellant was that he, being armed with an iron bar and a piece of wood, entered the premises and attacked the three persons separately named in each of the three charges. The case for the prosecution depended solely upon individual identification by each of the three injured persons. There is evidence that the premises were dark, or dimly lit at the time. 6. As regards the third complainant, he was found to have a stab would in his thigh. He frankly admitted that he was unable to identify his assailant. In those circumstances and in the absence of any evidence whatsoever to support the charge of common intention between the appellant and those other persons jointly named in the charge sheet, it is hardly surprising that the magistrate found that there was no case for the appellant to answer on this charge. 7. As to the first complainant, he purported to identify the appellant as the person who had hit him on the head with a club. In cross-examination he said that he had been attacked by about 20 persons. He said that subsequent to the incident he saw the appellant at the police station on the 14th August, which would be some 12 days later. The appellant was then under detention. For some inexplicable - or at least unexplained - reason, no identification parade appears to have been held in this case. No evidence was given as to the circumstances in which the complainant then saw the appellant at the police station nor, indeed, was there any evidence as to whether or not this complainant knew or had ever seen the appellant before the incident of the 2nd August. 8. The second complainant also purported to identify the appellant as one of his assailants and said that the appellant had hit him on the arm with a length of iron pipe. He added, however, - and I quote from the record - "the defendant, it seemed to me, had a piece of iron water pipe, but it was dark. I could not see well." In cross-examination the complainant was asked "Did you identify him?". It is clear from the context of that question that the complainant was being asked as to whether he had identified the appellant - or had had an opportunity to identify him - at any time between the night of the incident and the date of trial. The reply to that question was "Yes, on the 15th" (i.e. August). In further cross-examination he then said that the defendant "has a tattoo on his wrist". The magistrate has made a note upon the record - and I quote it - ("defendant here makes a motion interpreted by Court as an attempt to hide a tattoo on his left wrist.") If, indeed, the complainant had been able to see and recognise that tattoo on the appellant's left wrist on the evening of the incident that would, of course, be very strong evidence of identification. But Mr. Winter, Crown Counsel, has very fairly pointed out that the 15th August was plea day at the Magistrate's Court; that the appellant, together with his co-accused, would have been present at the Court, and that this complainant could very well then have had an opportunity of seeing him and noticing that there was a tattoo on his left wrist. 9. The dangers of convicting upon visual identification unsupported by independent evidence has been frequently emphasised in these courts and, perhaps even more so, in the courts of/United Kingdom. The fact that no identification parade was held in this case - and no explanation given as to why there was no such identification parade - is a matter for obvious comment. But there was one further factor which, in my view, made it quite unsafe to allow this conviction to stand. At the close of the evidence the learned magistrate recorded a conviction. In so doing he endorsed upon the record of the case - and I quote:
10. Now it is obvious that if in fact the appellant had voluntarily made a statement in which he admitted that he had taken part in the fight, that would very materially have strengthened the case for the prosecution and supported a conviction. But I was informed by Mr. Winter, upon the authority of the police officer instructing him who had himself been a witness in the case, that although a statement allegedly made by the appellant was in fact tendered in evidence by the prosecution and originally ruled as admissible, the learned magistrate, at a later stage of the proceedings, reversed his earlier decision and held that the statement was inadmissible. The statement itself is not referred to on the record and formed no part of the record before me. The position was, therefore, that the learned magistrate, in recording his conviction relied upon evidence which, if admissible, was of cogent probative value but which, in fact, he himself had earlier ruled as inadmissible. 11. It is, of course, true that in his subsequent Statement of Findings made some 25 days later and after a notice of appeal had been lodged, he made no reference whatsoever to this Statement but bases his conviction on both charges upon the unsupported evidence of identification of each complainant. But in my view the vitally important factor is what was in his mind at the time he recorded his conviction and what influenced him in arriving at that conviction. It is manifest that he was, at any rate in part, influenced by a vital piece of evidence which he himself had earlier excluded as inadmissible. 12. The approach of an appellate court to a conviction where evidence has been wrongly admitted in a case of trial by jury is stated in Archbold Criminal Pleading evidence and Practice, 36th Edition, page 337, paragraph 928, in the following terms.
13. Applying the same test to a trial by a single judge or magistrate it seemed to me quite impossible to say that the evidence which the learned magistrate had himself held as inadmissible, yet upon which he had clearly relied in part, did not affect his mind in arriving at his verdict, and that he would, or must, inevitably have arrived at the same verdict in the absence of such evidence which he had himself ruled as inadmissible. It was for these reasons that I allowed this appeal and quashed the conviction. 14. Before finally parting with this case I regret that I should find it necessary to refer to the manner in which the record has been kept by the learned magistrate. Three doctors, P.W.s 2, 3 and 4, gave evidence as to examining the injured persons. There is nothing on the record to indicate whether or not the doctors were sworn or affirmed before they gave their evidence. It is, unfortunately, not the first time that this same criticism has had to be made of a record kept by this particular magistrate. 15. The case was part heard on the 1st September, 1969, and then adjourned to the 16th September. Prior to the adjournment the accused was in the course of giving evidence. The record - presumably from the 16th September - then commences with the words "Cross-examination" - followed by a series of questions and answers. It is clear that it was the accused who was being cross-examined. But there is nothing on the record to show who was then present in Court, who was prosecuting the case and whether or not the accused was still legally represented (he had been so represented at the earlier hearing), nor is there anything to show that the accused was reaffirmed, or reminded that he was on his former affirmation, as is, of course, the normal practice when a witness resumes his evidence after a break in continuity. 16. It is a matter of considerable importance that the record of a criminal case should be properly kept, and it is unfortunate that it should have been again necessary to remind the magistrate of his duties in this respect. Representation: Martin Lee (Hastings & Co.) for Appellant. Winter, C.C. for Crown/Respondent. |