HKSAR v. LI SHUI TUNG

CACC 94/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 94 OF 2005

(ON APPEAL FROM DCCC NO. 986 OF 2004)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving reasons for judgment of the Court):

Introduction

1. At the conclusion of the hearing on 19 August 2005, we granted leave to the applicant to appeal against conviction, and treating the application as the appeal, we allowed the appeal, quashed the conviction and set aside the sentence.  These are our reasons.

Background

2. The applicant was convicted in the District Court following trial before Deputy Judge Mierczak of a charge of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, Cap 212 and was sentenced to a term of imprisonment of four years and nine months.  He sought leave to appeal against both conviction and sentence.

The prosecution’s case

3. The main witness for the prosecution was PW1, the victim of the wounding.  His evidence can be summarized as follows.  On 5 April 2004, at about 2.30am, PW1 came off duty from the restaurant in which he worked and was on the way to his girlfriend’s home.  There were streetlights at the scene.  He saw three males going into a toilet when they were about 100 metres away from him.  About 30 seconds later, they came out and approached PW1.  PW1 described them as follows:

“One of them was a bit plump, of height 1.8 metres, and the second one had tattoos on both his arms or hands, and his height was 1.67 metres.  And the third one was also 1.8 metres in height and he was wearing black clothing.”

4. PW1 elaborated that the first one was wearing grey clothing and the one with tattoos wearing white. 

5. The three men were about three feet from PW1 when they intercepted him.  The one in grey spoke to PW1 face to face.  He asked PW1, “Who do you follow?”.  PW1 replied, “I followed Ha Chuen.”  PW1 explained that “Ha Chuen” meant 14K (accepted by both the prosecution and the defence to be a triad society) in Ha Chuen, Yuen Long.  The three men then put their hands on PW1’s shoulders and escorted him towards Tak Po Supermarket in Long Ping Estate Market, Yuen Long.  In front of the supermarket, the one in grey asked PW1 if he had hit any of their people.  This was the second and only other question asked by the person in grey, and it was asked about 2 to 3 minutes after the first question had been asked.  The one in grey was then in front of PW1, while the other two men were behind PW1.  PW1 replied that he had just left work.  All of a sudden, PW1 felt that his back was chopped or poked once and his left arm was chopped twice.  PW1 ran and the three men gave chase.  PW1 was able to make a telephone call to the police with his mobile phone when he felt that he had got away from the three men.  All the time during the incident, PW1 did not see any of the three men carry anything, let alone weapons.  The police arrived.  PW1 reported the matter to them and was taken to hospital. 

6. PW1 remained in hospital for a couple of days and there were two lengthy wounds on his left forearm, respectively 10 cm and 5 cm long, while there was no injury on his back.  These two wounds were deep cuts affecting the nerves.  PW1 could gradually regain control of his left wrist but he could not extend his left thumb. 

7. In late June 2004, PW1 went to the police and told them that one of the three men involved in the case was a male called Tong who was a member of the Wo Shing Wo at Nam Bin Wai, Yuen Long.  As a result, the applicant was arrested by the police on 6 July 2004.  

8. On 15 July 2004, an identification parade took place where PW1 identified the applicant as the man in grey.

9. At the trial before the judge, PW1 also identified the applicant in the dock.

Grounds of appeal

10. Mr Tolliday-Wright, who was trial counsel for the defence, raised a number of grounds of appeal against conviction on behalf of the applicant.  The main thrust of these grounds attacks the quality of the evidence of identifying the applicant, particularly in two areas.  First, PW1 admitted that it was a friend who provided him with the information about “Tong of Nam Bin Wai” which he told the police in late June 2004.  Secondly, the identification parade was unfair. 

11. It will be remembered that PW1’s description of the man in grey was that he was a bit plump, of height 1.8 metres.  That was the only description of this male, without any particular feature and without any name attached.  However, in late June 2004, over two months after the incident, PW1 was able to provide the police with the information that one of the three men was Tong of Nam Bin Wai.  Mr Tolliday-Wright asked PW1 the identity of the person who provided the name Tong of Nam Bin Wai to him.  After putting two names to PW1, which PW1 denied, PW1 said that it was a friend who provided the information, and that he knew that the police arrested the applicant because of the information.  However, PW1 refused to disclose the name of the friend who provided the information.  When Mr Tolliday-Wright pressed on, the judge allowed PW1 not to name his friend.  This forms the ground of appeal that the judge erred in making the ruling. 

12. PW1 told the judge that when he picked out the applicant from the identification parade the applicant was wearing pants of “three-quarter” length, while all the others participating in the parade had normal-length trousers.  PW1 described the length of the applicant’s trousers as a bit below the knees.  He also volunteered that the applicant had a pair of Puma sneakers on.

13. In his Reasons for Verdict, the judge summarised the evidence in these two areas, as follows:

“

7.

PW1 agreed that in about late June he had told the police information about who had assaulted him, and this information had come from a male friend of his.  PW1 recalled at the ID parade that the defendant had worn three-quarter length pants below the knees and a pair of sneakers.  PW1 had said that he had never seen the defendant before the incident at all and he agreed at the ID parade that all the other men wore normal-length trousers.”  (Transcript pp 7-8)

14. The judge further commented:

“

10.

PW3 [the officer in-charge of the parade] gave evidence that he ensures that identification parades are conducted fairly and that had been the same on this occasion.  All actors wore long trousers and he did not remember what the defendant wore but it was not trousers of a short length.  It may have been three-quarter length and slightly shorter than long pants and he would call three-quarter-length trousers, jeans.  Thereafter, the tape of the identification parade was shown in court and I observed that the defendant wore three-quarter-length trousers down to about his ankles.  It is clear that all the other actors wore long pants.”  (Transcript p 8) (Emphasis added)

15. The judge also dealt with the points made by Mr Tolliday-Wright before him and now repeated before us.  He said:

“	24.	I have given myself all the necessary warnings with respect to identification evidence.  There is no evidence to suggest nor do I find that the defendant had been indicated to PW1 prior to the identification parade.  True it is that the source of the information for the subsequent location of the defendant was given to PW1 by someone he would not name, but there was nothing sinister in this.  Clearly here, the incident has a triad background, and in such circumstances I saw nothing sinister in the protection of the source and I warned myself in that regard and of the special care to be taken.  After all, PW1 is uncorroborated.
	25.	I am of the view that the original source was irrelevant.  What is sure and certain was that it was this defendant who had taken part in the assault on PW1 as he attests to and injuries were caused of which there is no challenge. …
	26.	Added to this of course is the issue of what is referred to as the three-quarter-length trousers.  I have viewed the video of this identification parade and true it is that the defendant’s trousers are shorter then the other actors in that parade.  All actors, including the defendant, are dressed casually and hence it is not a case I find where the trousers of the defendant are markedly shorter and so he must be the one or that there was anything sinister in the setting-up of the parade or in fact that matters not revealed in evidence had occurred before such identification parade.  They had not, and again I mention and I warn myself of the caution with which the evidence is to be approached in this regard, and I believe and accept the prosecution witnesses’ evidence in this regard.” (Transcript pp 12-13) (Emphasis added)

16. It is a matter of some concern to us that the judge allowed PW1 not to answer questions in cross-examination about the identity of his “friend” who provided him with “Tong of Nam Bin Wai” which he passed onto the police over two months after the incident and based on which he knew that the police arrested the applicant.  It appears that the judge’s main ground for disallowing the line of cross-examination was that the incident had a triad background, and he wished to protect the source.  On the other hand, there was no allegation by the prosecution that the friend was a police informant and he needed to be protected for that reason. 

17. The basis upon which the judge excluded the line of cross-examination, in our judgment, should be the very reason for the cross-examination to be allowed.  From all the evidence, it is clear that the incident was triad-related, involving a revenge attack by the three men on PW1 for PW1’s alleged assault on “their people”, members of their gang.  PW1 told the three men that he “followed Ha Chuen”, admittedly a branch of 14K in that village.  The applicant was arrested because of the name of “Tong of Nam Bin Wai”, a member of Wo Shing Wo (another triad society) provided by PW1’s friend, which PW1 told the police.  The applicant gave evidence that he had been a witness for the prosecution in a case of malicious wounding testifying against a 14K member.  It is reasonably clear that there was rivalry between the two triad societies to which PW1 and the applicant respectively belonged.

18. In such circumstances, how the applicant, who had been described by PW1 as the man in grey, a bit plump, of height 1.8 metres, a description common to many people, could have been transformed into a name of “Tong of Nam Bin Wai” would be highly material to the running of the defence based on wrong identification. 

19. Mr Chan, for the respondent, submitted that despite the judge’s ruling, there was nothing to prevent Mr Tolliday-Wright pursuing his line of defence, for instance, by probing further into the content of the information or the conversation between PW1 and the friend, but Mr Tolliday-Wright chose not to do so.  Mr Chan argued that the frame-up of the applicant, by implication, must have involved PW1 as a party to it.  Without PW1’s cooperation, it would not have been possible for the frame-up to be successful.  There could have been two possible scenarios had PW1 participated in the frame-up, according to Mr Chan.  The first scenario is that if PW1 had never seen the applicant and the applicant had not been involved in the wounding, PW1 would not have been able to make a positive identification of the applicant at the parade by merely knowing his name from the friend.  Something more was needed.  For example, PW1 had to be given a clear description of the applicant or a photograph of his before the identification parade.  There was no such evidence at trial, and the judge made a finding of fact that the applicant had not been indicated to PW1 prior to the identification parade. 

20. The second scenario takes the assumption that PW1 had seen or known the applicant on other unrelated occasions and wanted to frame him.  If such a serious allegation was indeed a part of the defence case, it was not put to PW1 to give him a chance to answer the challenge.  In any event, there was no evidence that PW1 was a party to the so-called frame-up. 

21. Based on these reasons, Mr Chan submitted that the judge’s disallowance of the line of cross-examination on the friend’s identity did not prejudice the fair trial of the applicant in view of the way that Mr Tolliday-Wright chose to conduct the defence.  Nor did it affect the quality of the identification evidence. 

22. We do not agree. 

23. The matter can be examined on first principles.  There is no onus on a defendant to prove that his identification was wrong.  It remains always the prosecution’s duty to prove beyond a reasonable doubt that the identification of the defendant as the culprit is correct and reliable.  The defence run in this case was wrong identification, and so long as there was any reasonable doubt on the prosecution’s evidence as to identification, the applicant was entitled to be acquitted.

24. Mr Tolliday-Wright chose not to ask PW1 the full content of the information provided by the friend other than that PW1 told the police that one of the suspects involved in the case was a male called Tong who was a member of the Wo Shing Wo at Nam Bin Wai, Yuen Long.  PW1 agreed.  It was an obvious inference that that was the information PW1 had received from his friend.  In view of the disallowance of the cross-examination by the judge on the friend’s identity, it is difficult to see the value of any further probing by defence counsel. 

25. It has to be appreciated that unless counsel was fully and clearly instructed that PW1 participated in a conspiracy to falsely incriminate the applicant, counsel was not entitled to and would not be acting properly to put questions to PW1 implicating him in such a conspiracy.  Nor, in normal circumstances, would there be material provided in the instructions to defence counsel for him to put to prosecution witnesses that a design had been undertaken prior to the identification parade to help PW1 identify the applicant.  Without such material, it would have been improper for Mr Tolliday-Wright to even suggest to PW1 or police witnesses that such a design had been perpetrated.  In our judgment, the absence of such evidence, of which the judge had made a finding, and on which Mr Chan relied, is neither here nor there.  

26. While the name of PW1’s friend who had transformed the description of the man in grey into a name of a person of a named triad society at a particular locality might or might not assist the defence in attacking PW1’s identification of the applicant, we consider that the conduct of the defence case was, to say the least, hampered by Mr Tolliday-Wright’s being denied the opportunity of getting the name.  In the circumstances of this case, where defence counsel clearly challenged PW1’s identification of the applicant as being wrong, where the applicant had allegedly previously given evidence against a 14K member, and where the victim’s evidence was that he had claimed to be a 14K member and that the assault on him was allegedly a triad-related revenge attack, it was all the more important for the defence to be allowed a fair opportunity to probe this aspect which might enable the motivation for framing the applicant to be explored. 

27. Although the point was not taken at trial, we note that the applicant cannot be more than 1.7 metres tall, and the description of the man in grey at the attack of 1.8 metres of height might also give rise to some doubt.  In any event, the physical build of that man, being a bit plump and 1.8 metres tall, befits many people, and it would be difficult to imagine how the description, without more, could have been transformed into “Tong of Nam Bin Wai” by PW1’s unnamed friend.

28. We do not see any sound basis for the judge to have disallowed the cross-examination of PW1 as to who his friend was.  PW1’s friend was not allegedly a police informant that needed protection.  PW1 would not be self-incriminated if he disclosed his friend’s name, nor would the name be privileged information.  In any event, none of such grounds for exclusion was ever intimated.  The judge’s expressed protection of the source because of the triad background is unjustified in all the circumstances of this case.

29. Pausing here, it is to be mentioned that under normal circumstances, when a witness does not wish to disclose a name in his testimony, he may be asked to put the name on a piece of paper that may be viewed by the court and counsel.  However, in the present case, this device could not have been usefully adopted, because obviously counsel had to seek instructions from the applicant on the name.

30. Moreover, PW1 volunteered in cross-examination that the pants worn by the applicant in the parade was just a bit below the knees.  This demonstrates the strong impression left in PW1’s mind.  These shorter pants have to be compared with PW1’s admission that all the other participants in the parade wore full-length trousers.  We do not consider it satisfactory for the judge to deal with this evidence by his forming a different conclusion that there was no marked difference through viewing the videotape of the parade himself.  What is significant is not the judge’s view of the difference between the lengths of the trousers but PW1’s unequivocal admission of the clear distinction that he had observed at the parade. 

31. We have also viewed the videotape together with counsel.  It bears out the fact that the pants that the applicant was wearing were just shortly below the knees, while all the actors wore full-length trousers.  The officer in charge of the parade should ensure that everything done must be fair to the applicant.  He should have advised the applicant of the possible risk involved and offered him a pair of full-length trousers so as not to make him stand out from others in the parade.

32. In our judgment, the wrong ruling of the judge in disallowing the cross-examination of PW1 on the name of his friend and the apparent unfairness of the identification parade have given rise to grave doubts in our mind as to the safety of the conviction. 

Conclusion

33. Therefore, we granted leave to appeal against conviction.  Treating the application as the appeal, we allowed the appeal and quashed the conviction.  It is unnecessary for us to deal with the sentence, which was also set aside. 

34. This is not a case for a re-trial.  The defence was run on the basis of wrong identification and this appeal was allowed because of doubts in the identification evidence.  PW1 had obviously seen the applicant at the parade and for some time during the trial.