HKSAR v. LEE HO MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.109
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Power, Ag. Chief Judge H.C. (giving the judgment of the Court):

1. The applicant in this matter faced four charges of burglary and one of possession of an instrument fit for unlawful purpose. He was charged with another defendant Wong Yiu-kin ("Wong"). Wong pleaded guilty to the charges. The applicant pleaded not guilty but was found guilty after trial in the District Court before Judge Chua.

2. The applicant called the co-defendant Wong to give evidence. The evidence given by Wong was, particularly in the cross-examination, very damaging to the applicant.

3. The trial judge said when given reasons:

"I turn now to the burglaries and his admissions in P4, in particular answer 5 thereof, where he reels off the details of the four burglaries. The defendant displayed a keen memory in court, and both during the cross-examination of the police witnesses and when giving evidence, adhered consistently to his intricate story, even though it was all a bunch of lies.

It was recorded in P5, the interview conducted the day after P4, that PW7 asked the defendant about items taken from the said homes, which he omitted to recount in P4. This, it seems to me, is evidence to support the fact that the answers in P4 came from the defendant who, with his memory, was able to be quite specific and reasonably accurate about the neighbours' homes he had burgled with Wong.

Further, when his accomplice, Wong, was called, Mr. McMaster elicited in cross-examination the following facts:-

1) that he had pleaded guilty to the charges,

2. admitted the commission of these offences with the defendant in confessions to the police which were true, and

3) admitted in the summary of facts put to him that he had committed these offences with the defendant and

4) did not resile from these admissions.

The prosecution, having proved its case on these charges beyond reasonable doubt, the defendant is convicted of charges 1, 2, 3 and 4."

4. The complaint made today, and it is the only matter of weight in this application, is that the trial was unfair as the trial judge failed to ensure that the applicant knew that if he called Wong he (Wong) could be cross-examined as to his conviction of and involvement in the offence. It is argued by Mrs. Wacks, who appears for the applicant, that this should have been fully explained to the applicant so that he was aware of the dangers that he would run by calling a co-defendant who had pleaded guilty, dangers which were very real as, in the outcome, can be seen from the evidence of Wong in which he affirmed that both he and the applicant had been involved in the offence.

5. When the applicant indicated to the judge that he wished to call the co-defendant the following exchange occurred:

"Court: Are you sure you know what Wong Yiu-kin is going to say?

Defendant: Yes."

Later the court observed:

"I will issue a body order for Wong Yiu-kin, but it's a matter for you when he appears in court, whether you want him in the witness-box."

6. We are satisfied that the judge was not required to do more than she did. She drew the applicant's attention to the need to know what the witness was going to say. She indicated to him quite clearly that it was for him to make his mind up whether he would, in the outcome, call such a witness. It was not incumbent upon her to go on to detail dangers or possible dangers that might arise out of the calling of such a witness. It was certainly not for her to discourage him, he being satisfied that he had a witness who would assist him, from calling that witness. She ensured that he knew what he was doing and gave him the opportunity, even at the last minute, of resiling from calling the witness should he wish to do so. She, in our view, acted properly and fairly. There is, we are satisfied, nothing in this ground and the application is dismissed.