Au Wai Keung and Another v. The Queen

CACC000813/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 813 of 1974

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 16th January 1975.

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JUDGMENT

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Briggs, C.J.:

1. Counsel has, on the day fixed for the hearing of the appeal, moved the Court for leave to amend the Notice of Appeal filed by the second Appellant by adding two further grounds. As we have previously indicated, the court does not give leave to amend as a matter of course, especially where application is made long after the statutory period for giving notice of grounds of appeal has expired. In the present case we had doubts whether the two additional grounds it was sought to argue had any substance at all and it is upon that issue that we first asked counsel to address us.

2. The first ground complained that the trial judge failed to give sufficient weight to part of the evidence of a Mr. Lo Sze Kuen which was inconsistent with the evidence of the main prosecution witness. Mr. Lo was called by the prosecution on subpoena but indicated that he might refuse to give evidence if he could. He was subsequently declared to be a hostile witness and admitted that a previous statement he had made to the police was inconsistent with his evidence. Counsel rightly submits that the rule relating to hostile witnesses is that any previous inconsistent statement does not become evidence of the facts stated in it and that, in the absence of any satisfactory explanation of the inconsistency, no weight should be put upon the evidence given by the witness in court. The contention here is that the judge did not expressly reject Mr. Lo's explanation and that he was wrong to say that he placed no reliance upon his evidence. It is open to question whether that is what the judge said. His actual words were:

"The net result .... was that so far as charges against the A1 were concerned in relation to the incidents at the end of March the only evidence there was available to the Crown were the original statements of the hostile witnesses I have referred to and the evidence contained in the statement which A2 made to the police at Western on the 12th June. As to the former evidence there is abundant authority that the Court should place virtually no reliance upon such testimony and a similar observation is applicable to the evidence contained in A2's said statement".

It will be seen that the judge was there dealing with the charges against the first Appellant and not with those against the second Appellant. Even if it can be taken as referable in any way to the charges against the second Appellant it is by no means clear that the words "such testimony" meant anything more than the evidence of the previous inconsistent statement (upon which, in truth, no reliance whatsoever should have been placed), although counsel asks us to say that it meant the whole of the witness's testimony.

3. As it seems to us the learned judge clearly attached no weight to the evidence of Mr. Lo because he did not believe it, and we are not persuaded that he failed to consider whether the explanation given for the inconsistency between the witness's evidence and his previous statement was satisfactory. Indeed, the second Appellant gave various explanations. The passage which we have cited does not indicate that the judge thought the evidence of Mr. Lo had to be disbelieved whether or not his explanations, or any of them, were satisfactory. Nor was it necessary for the judge to say expressly that he disbelieved the evidence of Mr. Lo upon which the second Appellant relies. That disposes of the first ground it was sought to argue.

4. It also really disposes of the second ground, for the main complaint is that the judge failed to evaluate Mr. Lo's evidence. By that we understand counsel to mean that the judge did not summarise his evidence and give reasons for attaching little or no weight to it. Because a judge does not refer to part of the evidence it is not necessarily to be assumed that he did not consider it. It would be unlikely that the judge here completely ignored the evidence of Mr. Lo, because, as counsel for the Crown has pointed out, he himself put questions to Mr. Lo which brought out the evidence upon which the second Appellant relies. Even less is there any reason to think the judge failed to consider the fact that no finger print of the second Appellant was found on any of the knives used in the course of the offences charged.

5. We refused leave to amend and as counsel has not sought to support the ground of appeal originally set out in the Notice of Appeal the application by the second Appellant for leave to appeal against conviction is dismissed.

16th January 1975.

Representation: