LAM CHI MING v. R.

IN THE COURT OF APPEAL

1994, No. 65
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The applicant, who was charged with criminal intimidation, wounding with intent, and assault occasioning actual bodily harm, was tried before His Honour Judge Yeung in the District Court. He was acquitted on the wounding and assault charges but was convicted of criminal intimidation and was sentenced to 10 months' imprisonment. He now applies for leave to appeal against both conviction and sentence.

2. The evidence for the prosecution was principally that of two Vietnamese men PW1 and PW3 who had been engaged as guards to patrol a construction site. On 15 September 1992, the second day after they had begun work at the site, they were approached by a group of men, one of whom was a man named She Chai who acted as spokesman for the group and told them that he construction site was the group's area and that they, PW1 and PW3, were to discontinue working there or they would be assaulted or chopped. PW1 and PW3 thought that the spokesman for the group was joking. There was evidence that this encounter lasted for more than a minute during which time the spokesman was standing approximately three to five feet away from the two witnesses.

3. On 17 September PW1 and PW3 were suddenly attacked and wounded from behind by two men armed with knives. In their effort to escape neither victim had a protracted look at the features of their attackers. However, when they attended an identification parade a few days later and were asked whether they were able to point out anyone who had wounded them on 17 September they both immediately identified the applicant.

4. In the course of his evidence, however, PW3 testified that the person who had attacked him was not on the parade. Prosecuting counsel then obtained leave to treat him as a hostile witness. When shown statement which he had made to the police, PW3 agreed that in fact he had identified his attacker at the parade, that the man which he had identified was the man who had made the threat on 15 September and had attacked him on 17 September, and that he had talked to him and had a clear view of him. He went on to explain that it was because of the long lapse of time between the events - the trial being held in February 1994 - that he had not been able to recall "a lot of things". There was also evidence from a witness who testified that the applicant, whom he had known for three years, was known as She Chai.

5. At the conclusion of the case for the prosecution, the judge rejected a submission of no case to answer. The applicant then called alibi witnesses who testified that he had been in their company in a restaurant at the time at which the attack occurred. The applicant himself did not give evidence. There was no defence evidence as to his whereabouts at the time of the incident on 15 September.

6. It had been put to both PW1 and PW3 in cross-examination, and they agreed, that when they had briefly looked at their assailants during the course of the attack they had thought that one of them was the same person who had threatened them on 15 September.

7. In the light of this the judge concluded that the two witnesses "picked out the defendant at the identification parade not because they recognized him as one of the persons who had attacked them on 17 September 1992. They picked him out because they recognised the defendant to be the She Chai who had earlier threatened to chop them. And after they were chopped two days later they assumed that She Chai would have been responsible for the chopping."

8. He therefore acquitted the applicant on the wounding and assault charges. However, with regard to the criminal intimidation charge, he was satisfied that both PW1 and PW3 had a clear view of the man named She Chai from a distance of five feet for a period of more than one minute and that both of them had no difficulty and did not hesitate in picking out the applicant at the identity parade. He was in no doubt that the two witnesses had correctly identified the applicant as the man She Chai who had threatened them with violence on 15 September, that the threat had been made with a view to frighten the victims so that they would stop working at the site, and that, notwithstanding the evidence of the two witnesses that they thought that it was a joke, the applicant intended to alarm them.

9. Mr Grounds, who appeared for the applicant in this court but not in the court below, submitted that in the absence of supporting evidence the judge erred in relying on the evidence of the two witnesses that the applicant was the man who had made the threat to them on 15 September.

10. What the judge said was this:

"Both PW1 and PW3 had no difficulty nor hesitation in picking out the Defendant at the identification parade on 22nd September 1992. The CIP in charge of the parade CIP See Chun Sang PW5 was of the view that both of them were positive, affirmative and quick in pointing out the Defendant in the identification parade."

11. No doubt this was the basis on which he convicted the applicant. However it is perfectly plain, and this is the basis of Mr Grounds' principal complaint, that the judge failed to consider the following questions asked of and the answers given by both witnesses in the course of cross-examination.

PW1

"Q You were not sure that the person who you picked out was the one who threatened you on 15th September?

A Yes."

PW3

"Q When you picked out the person at the identification parade on 22nd September 1992 you only believed he was the person who confronted you on 15th September 1992 but you were not too sure.

A Yes."

12. In the circumstances of this particular case it was incumbent on the judge to deal with this evidence. Had he said that he was completely satisfied that the evidence disclosed that the identifications at the identity parades were accurate identifications of the applicant as the man who had uttered the threat and that, as suggested by Miss Hartstein for the Crown, the answers given in cross-examination by PW1 and PW3 were the result of confusion engendered by way in which the line of questioning was conducted, it may have been possible to uphold this conviction. However, the judge made no attempt to deal with that evidence. In the circumstances we have come to the conclusion that the conviction is unsafe and unsatisfactory and that the application must be granted, the appeal allowed and the sentence set aside.

13. Before passing from this case, however, we wish to repeat what we have said on several previous occasions that counsel, whether he be prosecuting or defence counsel, should not ask, and, if he does ask, the court should refuse to allow, any question which invites an answer which is expressed in percentage terms of certainty or sureness. Either a witness is sure or he is not sure of the matter to which the question relates. The proper question is "Are (were) you sure (or certain) that ..." or "I put it to you that you are (were) not sure (or certain) that ...". The form of question to which this court takes objection is illogical and gives rise to confusion.