THE QUEEN v. TONG CHIU CHUEN

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BETWEEN

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J U D E M E N T

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Mortimer J. (Giving the Judgment of the Court):

1. On the 23rd November last year the applicant was convicted of one offence of robbery before Mr. Justice Garcia and a jury. The facts were these: two men, lay in wait in a lift lobby at No. 352 Lai Chi Kok Road and as five women came into that lift lobby they were held up at knife point and robbed of jewellery and money. Afterwards those ladies were herded into a lift and sent up to the 7th floor while the assailants made their get-away. Those ladies reported the matter to the police and gave descriptions of the men.

2. That offence took place on the 3rd day of last year. Six weeks later on the 16th June, Madam Pang, one of the ladies was walking in the street in Kowloon. She saw a man whom she recognized as one of the men who robbed her and she followed him. She said in evidence that he was carrying a white plastic bag and that he stopped and purchased some white gloves and she saw him (or thought she saw him) going into a building. She informed some police officers who waited outside the building. In due course the applicant emerged. When he did so, Madam Pang identified him to the police and according to the police the applicant then sought to escape up the staircase but he was caught and subdued after short struggle. Afterwards he took the officers upstairs to his flat. A thorough search was made. No white bag or gloves were found.

3. At trial evidence of identification was given first by Madam Pang who described having a close look at the appellant when he was removing her bracelet and also one of the other ladies picked but the applicant on an identification parade. The way in which that identification parade took place was investigated at trial. That lady having examined the men on the parade asked if they would each say the word "robbery". Then she picked out the applicant. She was properly cross-examined about the way in which she had picked him out. The suggestion was that he was the only person there with a village accent. The lady explained that she had been sure all along but wanted to be particularly careful.

4. The issues in the case related to the identification. The applicant gave evidence saying that it was not him; that he was not one of the two people who had committed the robbery; that he was somewhere else therefore on that particular day, but as it was so long ago, he could not say where. There was also an issue as to whether or not he had run away from the police at the time of his arrest and he called a caretaker, Mr. Wong to support his account.

5. At the trial, an extraordinary thing happened.  After the applicant had given evidence in chief, Prosecuting Counsel rose and asked this question:

"Yes, Mr. Tong, I understand that you had been arrested before this time."

6. There was an immediate and proper reaction from Mr. Macrae, Defending Counsel, who objected to the question. The jury was asked to retire and submissions were made. The question (for reasons which I will outline in a moment) was unquestionably illegal. Prosecuting counsel tried initially to justify the asking of the question but later it seemed she was asking for leave to put in cross-examination the applicant's record. However, the learned judge ruled against her. The question which then arose was to how this matter should be dealt with.

7. There was any question in this particular case of the jury being discharged. There was no application from Defence Counsel that the learned judge should discharge the jury and the only question was how the matter should otherwise be dealt with. Mr. Macrae properly pointed out to the judge that "a certain amount of damage had been done". In the result he said this:

"It is not as bad as it could be-merely the implication of his being previously arrested. That is an occupational hazara of a hawker and your lordship could well give them a robust direction to simply ignore it, and for my part, my Lord, having not spoken with the defendant, I would be content to let the matter rest as it is, provided your lordship, if your lordship was against the application of my learned friend, would give the jury a very clear robust direction."

8. The judge seemed to assent, and at a later stage of the submissions when dealing with the application to put in the applicant's record, he said:

"I think the application is refused.

And then to Defence Counsel:

"You do not want to pursue the other matter, Mr. Macrae?"

9. That no doubt related to whether the jury should be discharged. Mr. Macrae said:

"No, my Lord, I think on reflection I do not. I am confident that your lordship will tell them to ignore it."

10. It is in relation to the question asked by Prosecuting Counsel and the way in which the learned judge dealt with it, that this application for leave to appeal is presented - the other ground of appeal having been properly abandoned.

11. Mr. Macrae, to whom we are particularly obliged for the succinctness, clarity and realism of his submissions says this: this was a case in which the crucial issue was one of identification. It is well known to the law that identification evidence can be dangerous. Here, in circumstances where the whole case depended on identification evidence, a deliberate question was put by the Crown which tended to show that the accused had been in trouble before. And, says Mr. Macrae, in those circumstances it fell to the learned judge to deal with the matter by a robust direction to the jury to ignore implications of the question. He submits, if one looks at the summing up there is no such robust direction to be found. Further he says that in the confident knowledge that the learned judge would give such a direction, he thought it better not to raise the point in the course of his final submissions and left it for the learned judge.

12. In fact, at the end of the summing up, the learned judge said to Counsel: "Is there anything you wish me to add?" And both Prosecuting Counsel and Mr. Macrae said: "No, my Lord."

13. Mr. Macrae frankly concedes that by that time he had forgotten about this particular matter and it was out of his mind. In any event he may well have thought it right not to raise it because it would highlight the point in the jury's mind.

14. Mr. Macrae also submits that in the circumstances of this case, the asking of the question was more serious because of the shortness of the case. The jury were considering their verdict on the same day that the question was asked, and they had the opportunity of talking about the question when they were asked to leave the court immediately after it had been asked. Also it was serious because the identification evidence could not be described as the strongest of its kind.

15. In dealing with Mr. Macrae's submissions the first matter is this-the question asked was undoubtedly, improper and illegal.

16. The Criminal Procedure Ordinance, Chapter 221, Section 54(i) (f) reads:

54(1) Every person charged with an offence ..... shall be a competent witness for the defence at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person:

Provided as follows:

(f) A person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or has been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character ....

17. The question asked was a clear breach of that section. It was not an accidental questions. It was a deliberate question which Counsel wrongly thought she was entitled to ask.

18. When either evidence or a question of this nature is introduced the matter has to be dealt with at trial. The way in which it is dealt with is a matter for the discretion of the trial judge. What action he takes is a matter for his discretion for he must seek to ensure that the accused receives a fair trial in the existing circumstances. He may deal with it in many different ways. On application by Counsel or in exceptional instances without such application he may decide to discharge the jury. That is an unusual course. In this case it does not arise because there was no application by Counsel and it is not contended for on Appeal. The Judge may deal with it by means of a direction to the jury or he may decide that the interests of the accused in a fair trial may be met (and completely met) by the way in which he sums up the whole of the case without actually referring to the particular question so as not to highlight it in the jury's mind.

19. We have been invited by Counsel for the Crown (to whom we are also indebted) to consider the case of R v. Coughlan (1976) 63 Cr. App. R. 33, in which the trial judge's discretion was challenged for allowing the case to proceed without discharging the jury when there had been an inadvertent reference to the record of one of the accused. That case is an example of the exercise of the learned judge's discretion and the approach of an Appellate Court. An Appellate Court in these circumstances will be slow to interfere with the discretion exercised by the learned judge unless it can be shown that his discretion was certainly wrongly exercised, for this reason among others that it is only the learned judge at the trial who can properly assess the effect of what has happened in the court-room at the time and can properly assess what steps ought to be taken.

20. Turning to the instant case. As has been properly submitted by both Counsel, the learned judge's direction to the jury upon the identification evidence was not only scrupulously correct but was fair, and could be read in certain respects as an invitation to the jury to disregard certain parts of the identification evidence. For example, on page 12, when dealing with the identification witnesses he said:

"You might even consider that because of the circumstances under which the identification of the defendant had been made by these two witnesses, that their identification could be mistaken."

21. Later when correctly reminding the jury that none of the belongings said to have been purchased by the applicant was found in his room, the learned judge said:

"Now after the defendant was arrested, he was brought up to his room and I think a fairly thorough search of the room was made, but in none of the belongings of the defendant were found the plastic bag which was described by Madam Pang as being white in colour and it contains some things nor was the pair, one has to assume these gloves which she said she saw the defendant buying in the street were new. None of these articles was found during the search. I think this is a matter which must exercise your mind as to whether she had made the correct identification of the person whom she describes as being the person who had robbed her and whom she says appeared to have gone into the building, that is Nam Chong Building."

22. Looking at the summing up as a whole, the issues were left to the jury with the greatest fairness.

23. The learned judge also approached the question which had been put before him about the risk under which it was suggested a hawker may labour of being arrested by the police. The learned judge dealt with this in relation to the evidence of him running away when arrested which had been relied upon by Prosecuting Counsel as some support for the identification. On page 14 the learned judge said:

"I think the inference to draw there, or which you had been asked to draw is not the only inference which could be drawn from his running up the staircase when he was confronted by the police. You would have been told that as he was a hawker, he was always tending, I think you way call it, to run away from a police when confronted. However, this is also a matter for you to consider."

24. Now, looking at the summing up as a whole, the learned judge clearly was indicating to the jury that they must not take his running away as an indication that he had previously been in any kind of trouble. The learned judge could quite properly have taken the view that having put the matter so fairly and left all the issues with his indications to the jury, that to remind them then of the question so improperly put by Prosecuting Counsel, would have been contrary to the applicant's interests; and that in his discretion, by far the best way of dealing with the matter, was not to say anything further but to leave the issues in this fair way.

25. The summing up was immaculately careful and fair and in our view and judgment, the learned judge dealt with the problem without any special direction which would have brought it to the jury's particular attention.

26. In the circumstances there are no grounds upon which we can interfere with the learned judge's exercise of his discretion and this application fails.