Wong Hon-lung v. The Queen

CACC000833/1982

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of Judgment: 28th June 1983

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P.:

1. Two men were sleeping on a staircase. Both were attacked, one being killed and the other injured. The injured man identified the assailant as the Appellant, a person with whom he was acquainted and with whom he had had disputes. The Appellant was arrested and charged with murder and attempted murder. The jury convicted him on both counts.

2. The original grounds of appeal were not pursued by counsel at the hearing, nor did he argue the first of the "Additional Grounds of Appeal". He did not, indeed, seriously contend that the judge should have warned the jury "of the need for caution when the correctness of the identification depended wholly or substantially upon the evidence of one witness": additional ground 2(a). His real case was that the direction on identification was inadequate and that the judge failed to remind the jury sufficiently of the bad character of the injured man.

3. It must be mentioned at the outset that the jury was taken to the scene of the alleged crimes and was able to judge for itself the quality of the lighting. The judge directed the jury that identification was the crucial issue and emphasised that if the evidence of the injured man left them in any reasonable doubt at all whether it was the Appellant who attacked him, then the Appellant should be found not guilty on both counts. He mentioned that the source of the light would have been behind the assailant and that there was evidence that at the time such lighting on the staircase as there was may have been dimmed by clothes hung to dry "in the staircase". It is true that what he said was

"Remember though Mrs. CHENG says that she had hung some washing out to dry between the only light in the corridor outside her flat and the stairs leading up to, not down from, up to the landing on which the attacks took place."

This could be confusing, since stairs which led up to a landing necessarily also led down from it. "The landing on which the attacks took place" was clearly that shown in Ex. P.2(b) and described as "landing" on the plan, Ex. P.1. What exactly was in the mind of the judge it is not easy to understand, but we had no doubt that his intention was to emphasise the dimness of the lighting at the scene of the attack and that the jury would have appreciated this.

4. The judge having expressly referred to the clothes hung out to dry, it must have been obvious to the jury that the lighting would have been different on the night of the incident from that which was seen at the time of the view. We did not think his failure to mention this difference was a just cause for adverse criticism.

5. At the beginning of his summing-up the judge referred to the suggestion that the assailant would have had his back to the light. He did not mention it again when he was discussing the evidence of the injured man. It would, perhaps, have been more helpful to mention it in the latter context. The fact that he mentioned it at the outset may indicate the importance which the judge attached to it, but, be that as it may, we did not think that it was incumbent on him to repeat what he had already said.

6. Having drawn attention to a number of specific points in relation to identification, the judge did warn the jurors of the need for being "especially cautious" about the evidence of the injured man in relation thereto and that they must consider all the factors to which the judge had referred "really terribly carefully in deciding whether you are satisfied beyond reasonable doubt that it was the accused who attacked Mr. Chan". He went on to explain the reason why such caution was necessary. It was contended that he "failed [to] warn the jury of the poor quality of the identification evidence and thus the greater danger of convicting upon it". To that we can only say that, once the judge had decided that the evidence was not so poor that it would be unsafe to leave the case to the jury, he was not obliged to express his view upon its quality, although he was entitle to make such fair observations as he thought fit. What in truth counsel argued was that the judge failed to mention to the jury various inconsistencies in the evidence of the injured man and inconsistencies between his evidence and his statement to the police. The judge told the jury that he was deliberately refraining from going through this evidence in detail because the trial had been short and the evidence was still fresh in the jurors' minds. The judge, indeed, referred generally not merely to inconsistencies in the evidence but to the injured man's admission to having told lies to the police.

7. Then it was contended that the judge failed to warn the jury adequately of the bad character of the injured man, on whose evidence the conviction would necessarily depend. We have already seen that the judge did mention the admission to telling lies to the police. He mentioned the witness's addiction to dangerous drugs and his triad affiliation: he did not expressly mention his three criminal convictions. He said quite boldly "he is not of good character"

8. It is always easy to point to matters which a judge might have included in his summing-up and which he omitted, but the question at the end must be whether the case has been fairly left to the jury and we were satisfied that in the present case the jury could have had no doubt of the dangers in accepting the evidence of identification. We accordingly refused leave to appeal.

28th June 1983.