HKSAR v. Tang Wai Leung

HCCC 50/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 50 OF 2014

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Before: Hon Zervos J in Court

Dates of Hearing: 6 November 2014

Date of Ruling and Reasons for Ruling: 6 November 2014

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REASONS FOR RULING

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1.Mdm Chow Chuip‑yuk (PW4) is the fourth prosecution witness in this criminal trial. She has given evidence in chief and an application has now been made by Mr Duncan Percy for the prosecution to turn her hostile. Mr Richard Donald for the defendant opposes the application.

2.The general rule is that a party is not entitled to impeach the credit of his own witness by asking questions or adducing evidence concerning such matters as the witness’s bad character, previous convictions, bias or previous inconsistent statements.  It is available to the party to make an application to treat a witness as hostile in certain circumstances.

3.A hostile witness is a witness who clearly has no wish to tell the truth on behalf of the party who has called him.  In deciding whether to give permission to have a witness declared hostile court has to take into account factors, such as, the witness’s degree of cooperation and the manner in assessing whether to declare him or her hostile.  In other words, the witness shows an unmistakable sign or signs of hostility.  Otherwise, the general rule applies to a witness who merely fails to come up to prove or gives evidence unfavourable to the party who has called him or her.

4.In considering whether to treat a witness as hostile, section 12 of the Evidence Ordinance, Cap 8, applies.  This section is derived from section 3 of the Criminal Procedure Act, 1865.  See Blackstone’s Criminal Practice 2014 at para F6.50 to 6.58 and Archbold Hong Kong, 2014 at para 8‑95 to 8‑100.  See also Bruce and McCoy, Criminal Evidence in Hong Kong at Chapter X [353] to [550].  I have read the relevant sections in the texts and have borne in mind what has been stated there in giving my ruling.

5.If a witness has made a previous inconsistent out‑of‑court statement, the party calling the witness ought to consider giving the witness the opportunity to refresh their memory from it unless the witness is blatantly hostile.  Although there may be situations even when a witness is blatantly hostile and a ruling has seem made to that effect, that the party should still proceed to deal with the witness by first refreshing his or her memory.  If the witness should refuse to do so and also to provide an explanation why his or her present testimony is inconsistent with his or her earlier statement, then the basis is stronger to treat the witness as hostile.  But as I indicate this can also take place in seeking to refresh a witness’s memory upon a declaration that he or she is hostile in order to proceed to cross‑examine him or her on the matters that have brought about the application.

6.I am of the view that the witness appears to be hostile to the prosecution, that is, not desirous of telling the truth to the court and that she is deliberately giving evidence in a way which is inconsistent with her earlier statement made to the police.

7.Mme Chow made a statement to the police at 11:55 pm on 23 August 2013 at Unit 963, the evening of the offence alleged against the defendant.

8.She said in her statement that there had been an agreement between the defendant and her that he was not allowed to bring any person to the flat while renting the room.  And yet in her testimony she gave contradictory evidence that he had many friends every day come to his room to play video games and watch TV.  She also said that he had a girlfriend who would come to the room frequently.

9.She said in her statement that there had been occasions when someone came to visit him but the person was not allowed to enter and had to wait for him outside the flat.  And yet in her testimony she said that his friends would come and go and the only rule that she imposed on him was that only friends that he was familiar with could he bring to his room.

10.She said in her statement that in the morning of 23 August 2013 she went out while the defendant was sleeping in his room.  And yet in her testimony she said she did not know whether the defendant was in his room and that he would sleep at her daughter's flat on the fourth floor where he had rented a room from her.  She also testified that he would use the room to change his clothes and entertain his friends.

11.She said in her statement that when she came back at about 9 pm on 23 August 2013 she saw that the defendant had just woken up.  And yet she testified that when she arrived back at the unit he had slept at his daughter's flat and come down the change is close and go out to have a meal.

12.I consider the foregoing matters on which she has testified to be blatantly contrary to what she stated in a previous statement in relation to these matters.

13.Accordingly, I declare that Mme Chow to be a hostile witness and give leave to the prosecution to cross‑examine her.  The prosecution will need to lay the foundation of a previous statement and take her to the relevant parts and give her an opportunity to explain the contrary evidence that she has given.

Mr. Duncan Percy, counsel on fiat instructed by the Department of Justice, for the prosecution

Mr Richard Donald, instructed by Kent Tam & Co, assigned by Director of Legal Aid for the defendant