Case Document

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CACC000920/1982

IN THE COURT OF APPEAL	1982 No.920
	(Criminal)

BETWEEN:

	LAI Chi-ping	Appellant
	AND
	THE QUEEN	Respondent

Coram: Roberts, C.J., Huggins, V.P. & Barker, J.A.

Date: 9 December 1982

__________

JUDGMENT

__________

[Witness may refresh his memory from statements given to police,
before he gives evidence or while he does so.]

Roberts, C.J.:

Background

1. The appellant was convicted of four charges of wounding with intent, contrary to section 17 of the Offences Against the Person Ordinance. Leave to appeal was granted by a single judge.

Facts

2. A group of intruders, armed with knives and iron pipes, forced their way into Hut 15, Po Ting Ha Tsuen Village, Tsuen Wan, in the middle of the night on 29th June, 1981.

3. It is not disputed that -

	(a)	the victims named in the charges (numbered 2, 3, 4 and 6) of which the appellant was convicted, did suffer injuries in the course of the attack; and
	(b)	those injuries were of such a nature as to amount in law to wounding.

4. The appellant gave no evidence (except on the voire dire) and called no witnesses. The Crown put in evidence, after a voire dire at the end of which the judge ruled them to be voluntary and admissible, two statements made by the appellant to the police after caution.

5. In these statements, the appellant -

	(a)	admitted that he was present at the attack;
	(b)	admitted that he was carrying a knife;
	(c)	asserted that he took no action himself.

6. The Crown's case depended primarily upon the evidence of the victims as to the presence of the appellant and the part which he played in the attack.

7. P.W.1 (HO Wan-leung) the victim of the second charge, P.W.4 NO Lai-chun) the victim of the third charge, P.A.2 (LEUNG Hon-wah) the victim of the fourth charge and P.W.5 (NIP Chak-leung), the victim of the sixth charge, all gave evidence of the manner in which they received their injuries. P.W.3 (HO Wai-leung) who arrived soon after the attack testified as to what he saw.

Procedure adopted

8. The judge commented that each of these five witnesses was "reluctant" and that "the prosecution was obliged to have each of them refresh his or her memory from their earlier statements to the police".

9. P.W.4 was not quite sure if the appellant was present "but it seems yes". P.W.5 said he had never seen the appellant before.

10. The record of the trial shows that during the evidence of P.W.1, P.W.2 and P.W.3, the judge permitted Crown Counsel to ask each witness in turn to look at the statement which the latter had made to the police, shortly after the attack. The judge then allowed Crown Counsel to ask some questions which were of the kind which counsel is permitted to put to his own witness only if the latter has been declared hostile by the judge.

11. A similar procedure was followed by the same judge in R. v. WONG Chun-Leung⁽¹⁾. Another division of this court commented as statement to be contemporaneous, he may be permitted so to refresh himself, either before he gives evidence or while he is doing so.

12. A sufficient foundation for allowing a witness to refresh his memory in the witness box is laid if the witness is shown the statement and is then asked, and states, that he made the statement to a police officer on a specified date and that, when he made it, the matters contained therein were fresh in his mind.

13. It is, however, incorrect, for counsel to suggest to his own witness that the evidence being given by the witness is inconsistent with the contents of his statement, unless the normal procedure for declaring a witness to be hostile has been followed.

14. As in R. v. Wong Chun-leung^(l), we find ourselves left in some doubt as to whether the judge regarded the witnesses as being treated as hostile or as refreshing their memories.

15. If a witness is to be treated as hostile, there are well-established procedures to be followed before he may be so categorized. And when he is declared hostile, the effect is that his earlier statement is not evidence on which the judge or jury may act and his evidence becomes negligible.

16. If, however, a witness is asked to refresh his memory from a statement, the judge should not permit counsel who calls the witness to lead that witness through the earlier statement by putting its contents to him. In this instance, having permitted counsel to do so, the judge should have given no weight to the answers given by the witness.

17. Notwithstanding this error, it would still have been open to the judge to convict the appellant on the basis of his statements alone, once these had been admitted in evidence, because they contain admissions by the appellant that he was present, and armed, at the site of the attack.

18. The judge comments that "even without the testimony of those injured", he was satisfied that the appellant was present and shared a common intent to inflict injuries.

Follows, in its judgment on that appeal against conviction –

"In dealing with this witness's evidence - and it must be remembered that he was the principal witness for the prosecution - the Judge did not give any account of what his finding was in relation to the procedure which had been adopted before him and which he had permitted. There was, that is to say, no ruling as to whether he had regarded the witness as refreshing his memory by the statement or whether he regarded him as being treated as hostile. We think however that the better view is that, in effect, the prosecution was treating its own witness as hostile. The proof upon which the prosecution were relying was obviously directly at odds with what the witness was prepared to say in court, although he did dilute his evidence in various ways by a somewhat confusing going backwards and forwards upon his statement and his evidence.

At all events, however he regarded the statement made by the complainant witness, the trial Judge appears to have put it to a purpose which was improper. On the second paper of his judgment he says:

'He was a most unsatisfactory witness but I believe him when he told me that his statement to the police which gave rise to the present charge was true and, upon the prosecution proving that statement to me by calling the police constable who took it, the prosecution had at least raised a prima facie case.'

Mr.Wiltens for the Crown very properly concedes that that was a grave misdirection. If the statement was treated as contradicting the witness's evidence, the effect would be the normal effect following upon such a procedure, that is to say, the statement would have been useless for any purpose as evidence. In the absence of anything more, it was incapable even of showing a prima facie case."

Refreshing memory

19. It is beyond challenge that a witness may be permitted to refresh his memory from any contemporaneous notes which he believed at the time to be true: see Dyer v. Best⁽²⁾. So there can be no objection to a witness being given an opportunity to refresh his memory from a statement given by him on an earlier occasion to a police officer. So long as it falls within the rule which requires such a [1866] H. & Co. 192.

20. Had he ruled that he would wholly ignore the evidence of the prosecution witnesses, the conviction could have been supported. But we cannot be sure that he was not influenced to some degree by those parts of the evidence of P.W.1, P.W.2 and P.W.3 which implicate the appellant.

21. Because of the incorrect procedure adopted by the Judge in relation to the Crown witnesses, we regarded this conviction as unsafe and ordered that the appeal should be allowed and the convictions quashed. We announced that we would give our reasons later, which we now do.

(1) Crim.App. No.733/82.

Representation:

A.W. Sedgwick (Fan a Fan) for Appellant

J.G. Hagon, Crown Counsel, for Respondent.

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