THE QUEEN v. LAM CHI SUM

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H E A D N O T E

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    Observations upon the fairness and comprehensibility of a cross-examination of a witness on previous statements when those statements are not put before the jury or in the District Court before a District Judge.

IN THE COURT OF APPEAL

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J U D G M E N T

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Barker, J.A. :

1. The applicant LAM Chi-sum (hereinafter referred to as D1) was charged together with CHAN Chun-kit (hereinafter referred to as D2) on one charge of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance and two charges of wounding, contrary to section 19 of that Ordinance. D1 was convicted of charges one and three whereas D2 was acquitted. D1 applied for leave to appeal against conviction. We dismissed his application and indicated that we would give our reasons later. This we now do.

2. The offences took place on the evening of the 16th April 1987 in the 7-Eleven Shop, Tsuen Shek House, Ping Shek Estate, Kowloon.

3. LEE Chump-Chak (PW1.) was the victim in the first charge. His account, as given in examination in chief, was to the effect that on the day in question he was in the shop sometime between 10 and 11 p.m. when he saw D1 and other persons outside the shop. Thereafter he saw three persons come into the shop, two of whom were D1 and CHAR Kan-hoi. He said that Dl and Chak each drew a knife, each knife being approximately 18 inches long, that he ran towards the back of the shop, where he was chopped by D1 sustaining injuries to the back of his head. He was not facing D1 at the time, but D1 had previously been in front of him. PW1 said that the three men including D1 ran away but he stayed in the shop until the Police arrived and he was taken to hospital. He said that he knew the three persons from past activities, for example by playing football with them, and he averred that he had no idea why he should be singled out for chopping. It is to he observed that, although he had identified D2 at an identification parade, he failed to identify D2 in Court.

4. He was cross-examined at length, the thrust of. the cross-examination being that he had deliberately fabricated his evidence against D1. It emerged in evidence that he had made three statements to the Police, in the first two of which, from such questions as Counsel for Dl chose to put to him (for the statements themselves were not in evidence nor were they shown to the trial Judge, a matter to which we shall return hereinafter) he had not mentioned D1 but had said that Chak was his assailant. In the third statement, whilst not mentioning D1 by name he did accept that he had pointed to person No. 2 on the Identification Parade, which person was admittedly D1. There were numerous discrepancies within PWl's own evidence, and discrepancies between his evidence in the witness box and in his statements, and some discrepancy between his evidence and the summary of evidence adopted by the Crown. It was submitted to us, and no doubt to the trial Judge, that there was no question of PW1's being mistaken, because of his previous acquaintance with D1, and that therefore PW1 was either deliberately lying, or was accurate. Having heard all PW1's evidence and observed his demeanour, the Judge accepted PW1's account as given in chief.

5. The matter however does not end there. Another witness, LAU Wai-cheong.PW3, the victim named in the third charge also gave evidence and stated that be saw D1 draw raw a knife from his waistband. and chase and chop PW1, he having met D1 on ten odd occasions before the 16th of April. He went on to say that because he was scared he ran out of the shop where he was hit by a water pipe being brandished by D2 whom he had seen earlier inside the shop buying some lemon tea.

6. D1 elected not to give evidence, but D2 did go into the box and called evidence in.support of an alibi, the effect of such evidence being that he was nowhere near the 7-Eleven shop at any material time. The Judge said with regard to the alibi:

"If I were asked to hold that he (D2) had established this alibi even on the balance of probabilities I would hold that he failed to do so."

7. A little earlier the Judge said:

"In all the circumstances, considering the totality of the case against the second accused I do believe that a doubt exists and this has been made out principally by his, own evidence."

8. It is clear that the Judge did place some reliance on PW3's evidence in relation to the case against Dl, since he said:

"This is a case of two young men (I disregard PW2 - whose evidence he did not accept -) giving evidence which contains discrepancies,"

9. These two young men can only have been PW1 and PW3. It is therefore submitted that since the Judge had not accepted that part of PW3's evidence wherein he identified D2 as his assailant, and since there was no real distinction to he drawn between his, identification of Dl and D2, therefore his identification of Dl was highly suspect and ought not to have been relied on by the Juage,

10. We cannot agree with this submission. In the first place, his identification of D1 was positive. Secondly, he said he was scared and he ran out of the shop, It was then that he saw D2 about 40 feet away and was struck by him. There were six or seven other people around. When asked how he knew it was D2 his answer was 'The other was D1 he must he D2 even though there were other people present outside the shop,' Thirdly, he said that he had problems in remembering what had happened, since the relevant events occurred a long, time ago, It must have been considerations of this kind which led the Judge to give D2 the benefit of the doubt, But they do not detract from PW3's positive identification of D1 inside the shop, which took place before he ran out.

11. It is in these circumstances that this Court was asked to find that the conviction was unsafe and unsatisfactory. We were unable so to find,

12. We return to consider the fact that the statements made by PW1 were not in evidence nor were they before the trial Judge,

13. Section 14 of the Evidence Ordinance is in identical terms to section 5 of the Criminal Procedure Act 1865. Channell B. in Rex v. Riley^(l) had this to say of section 5:-

"The Act allows you to put them [the depositions] into the hands of the witness to refresh his recollection thereby and to enable you to cross-examination upon them; but you must take his answers, and if with the deposition before him be denies the suggested contradiction, or adheres to a statement which you suggest is inconsistent with the deposition, then, in order to contradict him you must put the deposition in evidence that the whole may be read; and then it will appear how far the suggested contradiction exists, and the assence of a particular statement may be explained by the context; or even if there is a discrepancy on one point, it may appear that it is only one minute point and that in all the rest of the evidence there is a perfect consistency, so that the general the, emphasis is that of Channell B) result of the comparison may he confirmation rather than contradiction."

14. Section 14 of the Evidence Ordinance was considered by the Court of Appeal in Hong Kong in Reg v. YIP Chi-keung⁽²⁾ where Hunter J.A., giving the judgment of the Court said:

"There is a particular difficulty here in assessing the effect of the three identifying witnesses' evidence, and particularly of their cross-examination. They were cross-examined at some length upon the various statements which they had given to the police, both after the robbery and after the identification parade, A number of critical comments on, and comparisons between, those, varying statements', were put to them by Counsel, Counsel of course both had copies of the statements. So had the trial Judge. It vas very easy for them to follow this process of cross examination. The jury were at no stage allowed to see any of those statements, The result is that this Court is in the same position as the jury,

    Now it is perfectly possible within the terms of section 14 of the Evidence Ordinance, in a simple case, to cross-examine a witness upon his previous statement without putting that statement before the Court and the jury. I am minded to think this is possible only in very simple cases. Certainly, where the matter is at all complex, and where critical comments and comparisons are being, made by Counsel between the content of the two statements, it is I believe rarely fair to the witness to have his particular answers taken out of this context.

    I venture to believe that altogether too little attention is paid to the proviso of section 14; also too little regard is paid to the concept of fairness to the witness, and what is most important of all, too little regard is paid to the jury's ability to follow and weigh the evidence that is being led before it. I believe that if you want a fair and effective crossexamination on inconsistent statementsin any case of any complexity the proper way is to let the jury see the statements."

15. These words appear not to he widely known; hence the necessity to repeat them in this judgment.

16. The proviso to section 14 reads as follows:-

"Provided always that it shall., be competent for the court, at any time during the trial or hearing of the proceedings, to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purposes of the trial or hearing as it may think fit."

17. Yip Chi-keung was a trial by jury, The instant case was a trial in the District Court without a jury. The same principles apply. Unfortunately the judge was not invited to, and did not exercise the power conferred upon him by the proviso to section 14. Had he done so he could have taken the whole of the statements into consideration, not with a view to treating their contents as true, but for the purpose of putting, the criticisms and suggestions of counsel for D1 into their true context. This Court would then have enjoyed the same advantage, we regret that this course was not followed.

(1) 4F & F 964

(2) Cr. App. No. 70 of 1987