The Queen v. Cheung Ping-kei
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CACC000125A/1982
BETWEEN
Coram: Hon. McMullin, V.-P., Leonard, V.-P., & Cons, J. A. Date: 8th June, 1983. __________ JUDGMENT __________ McMullin, V.-P. : 1. The applicant Cheung Ping-kei was convicted in the High Court on the 2nd of February 1982 of the murder of a man called Ng Chi. He subsequently sought leave to appeal against conviction out of time. This application was refused by the Court of Appeal on the 8th of November 1982, Sir Alan Huggins, V.-P., pointing out that in the case of a conviction on a charge involving capital punishment, the court - under the law as it still persists in this territory - has no power to extend the time for lodging a notice of appeal. The case came before us by virtue of an order made by His Excellency The Governor under the provisions of s.83P(1) (a) of the Criminal Procedural Ordinance, Cap. 221. 2. Ng Chi lived with his wife Lau Yin-fun, two children and other family members in an apartment on the 6th floor of Block 2, Tung Tau Estate, Wongtaisin. On the 27th of July, 1981, Ng Chi was sot upon by a number of men armed with knives at about 8 a.m. in the public street near his home. His assailants inflicted upon him a number of very grave wounds and then fled, leaving him mortally wounded. There was no eye witness to the attack who could identify any of the assailants. The injured man was removed to hospital shortly after the attack. He was given emergency treatment but he died of irreversible shock resulting from massive bleeding early on the morning of the 28th of July. 3. The applicant, Cheung Ping-kei, was arrested together with his wife and another woman at the Ding How Restaurant on Nathan Road on the afternoon of the 29th of July and taken to Kowloon Police Station. He was cautioned upon arrest and subsequently, at the police station, he was interviewed by Detective Sergeant Tsoi Shu-yip, No. 6970. The case for the Crown rested primarily upon a statement allegedly volunteered immediately after the caution had been recorded and signed by him. In this statement, which was written in part by himself and in part by the Sergeant at his dictation, he confessed to having procured several named persons to carry out this attack upon Ng Chi. This confession was admitted in evidence after challenge by the defence and trial of the issue of voluntariness in the absence of the jury. 4. There was no other direct evidence against the applicant but throughout the trial, and in the prosecutor's speeches, much was made of an incident which occurred 10 days prior to the killing of Ng Chi, upon which the Crown relied as supplying motive for the attack. 5. Lee Po-yeung, a boy of 16 years, told the court that on the 17th of July, he was sleeping in a corridor on the 5th floor of Block 2 where he was wakened by the sound of glass breaking somewhere below. Very shortly after that he was confronted by a group of young men who accused him of throwing a bottle to the ground. He was assaulted by these men some of whom were using sticks. He identified the applicant as the ring leader of the group and his principal assailant. The deceased, Ng Chi, and his brother who lived on the 6th floor arrived on the scene and attempted to intervene on behalf of the boy. There was a heated interchange between the applicant and the deceased in the course of which the applicant used violent and obscene language and made references to his triad connections including, according to Lee Po-yeung, a statement which the latter understood as meaning that the applicant was charged with the duty of enforcing the writ of the King Yee society in Blocks 1 & 2 which he alleged were within the territory of that society. 6. According to the prosecution witnesses Lee Po-yeung and Ng Sau-keung (the youngest brother of the deceased), the applicant and his friends also assaulted Ng Chi and the episode ended with the applicant warning Ng Chi, in violent terms, to be careful in the fixture as the applicant and his friends withdrew. 7. The applicant gave evidence and he denied not only being involved in any way with the killing of Ng Chi, but also any involvement with the episode of the lath of July. He admitted being present at a cooked food stall located immediately below the 6th floor of Block 2 on the night of the 17th and he described how he received a severe cut to his lip from flying glass as a result of a bottle being thrown from one of the upper storeys. He said however that, having stanched the blood as best he could, he made his way home and thereafter went to hospital where his lip required surgical attention. The fact of his having received such an injury in the manner described was not disputed. He also denied being a member of any triad society. In the course of the voir dire, evidence was led as to his criminal record which did not include any conviction relating to membership of a triad society. 8. Upon appeal Mr. Martin lee took a number of points on behalf of the applicant, but in the event there were two matters only which appeared to us to be of such substance as to warrant the court's interference. Although the substantial evidence against the applicant consisted of his confessional statement, without which there would have been nothing to found the verdict of guilty, yet the strong emphasis throughout the trial upon the "motive" evidence must necessarily have fortified the jury's impression of the truth of that confession. The Crown's case was that this was a typical act of triad revenge and the applicant's alleged identity as a triad official of some importance, who had led his gang in confronting the boy on the 17th of July, was obviously an important feature of that case. 9. The first of the points which caused us concern is as follows. Upon the hearing of the appeal, it was drawn to our attention that there were material discrepancies between the evidence given by the deceased's wife, Lau Yin-fun, Lee Po-yeung and Ng Sau-keung and what they had told the police in the earliest statements recorded from them. None of those witnesses had mentioned any assault upon Ng Chi by the applicant or his companions during the episode of the 17th of July. These statements had all been made on the 28th of July, the day following the killing of Ng Chi and had the jury been aware that the witnesses had fortified their evidence in this way, it might very well have affected their assessment of the reliability of the witnesses' sworn testimony. 10. Secondly, and more importantly, there was a serious procedural error in the course of the trial which went unchallenged and uncorrected and which was likely to have occasioned a miscarriage of justice. Pursuing the theme of triad involvement, Counsel for the Crown cross-examined the applicant upon the contents of a document which, as we now understand, was in fact the "antecedents" statement recorded from the applicant by a police officer shortly after his arrest in the Kowloon police station. This document was neither proved nor produced in evidence and Counsel made it clear that he was not proposing to call the witness who had taken that statement, It is clear from the record that counsel held this document in his hand when putting his questions, for at one stage the note records that the document was handed over to the interpreter to check upon some question of pronounciation. Cross-examination went as follows:
11. Although in theory Counsel was fixed with the negative answers to his questions, the effect upon the minds of the jury must inevitably have been to convince them that counsel had in his hands positive proof of the defendant's involvement in triad society activities so that not only was the case against him strengthened to that extent but also his credit as a witness was likely thereby to have been seriously undermined. Moreover this procedure was expressly disapproved by the Full Court in Cheng Chung-yat v. The Queen [1970] H.K.L.R. 269. In that case, as in the present case, the defendant was cross-examined upon matter contained in his antecedents statement, the purpose being to discredit him by getting him to give answers in the witness box inconsistent with those which appeared in the statement. At page 273 the court said:
12. Counsel's purpose in the present case could have been served, if at all, only by producing the officer who had taken the statement by way of rebuttal of the defendant's denial of being a member of the triad society. Although the Judge expressly alerted counsel to the possibility of such rebuttal evidence, he declined to follow that indication. 13. For these reasons we were satisfied that there may have been a miscarriage of justice. We granted the application for leave to appeal, quashed the conviction and set aside the sentence. At the instance of Mr Alderdice for the Crown - Mr. Lee not seeking to contend to the contrary - we ordered that the applicant should be re-tried upon a fresh indictment. Representation: Martin Lee, Q.C. & Miss Celina Lau(Alfred Lau & Co.) assigned for Appellant. G. Alderdice for Respondent/Crown. |