HKSAR v. CHEUNG SHING

IN THE COURT OF APPEAL

1997, No. 47
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court):

1. After a trial lasting 4 weeks the applicant was convicted of 5 counts of rape and 4 counts of robbery before Deputy Judge Wesley Wong and the jury. He was originally charged with 5 counts of rape and 5 associated counts of robbery. At the conclusion of the trial he was sentenced to a total of 24 years imprisonment. Through Mr Jerome Matthews he applies for leave to appeal against his convictions.

The facts

2. Each pair of offences have remarkable similarities. Each of the victims was a woman returning home in the early hours of the morning. The perpetrator of the crimes stole a taxi, each victim was picked up as a fare, driven to a secluded place, threatened usually with a weapon, robbed, save in one case and raped. Those offences took place in Kowloon between the 28 October 1988 and 2 November 1989.

3. At the trial there was no dispute that the offences on which there was a finding of guilt had be committed. The issue was identity. On this the applicant put the prosecution to proof and did not give evidence himself.

Evidence of identity

4. Turning to the evidence of identity adduced by the prosecution. In each case the victim was examined and intimate samples were taken. Also their clothing was examined and specimens were taken from the clothing and in some cases specimens from the taxis or other places where rape had been committed. The examination was for the presence of human spermatozoa left by the culprit. Samples of blood were also taken from the victims and in appropriate cases from friends so that irrelevant specimens could be excluded from the investigation.

5. The applicant supplied blood samples which became, for the purposes of scientific investigation the control samples. The specimens were matched with the control sample in order to compare the DNA. Scientific evidence was given of those tests and their statistical evaluation to establish the identity of the accused as the person who had committed each of these offences.

6. Additionally, the victim concerned in Counts 7 and 8 of the indictment claimed that she could recognise the culprit. 5 years later she picked out the applicant on an identification parade. A video recording was taken of the parade which the jury saw.

DNA profiling

7. It is first the evidence given about DNA profiling that Mr Matthews invites the court to examine. DNA profiling has been described elsewhere. It is not our intention to repeat the description of what is done by a scientist in order to provide evidence of identity of this kind. For present purposes it is sufficient to say that the judge adopting what was said in R v Deen. The Times 10 January 1994 set out for the assistance of the jury the background of DNA profiling with the method used and what is sought to be proved by that evidence. There are two aspects of such evidence. First, the control sample from a suspected person is matched scientifically with the specimens recovered. If matched that profile does not produce a unique result, such as is produced by the matching of fingerprints . It is then necessary to compare the control sample with a database of those of the same ethnicity. And when that is done it is possible to calculate by statistical evaluation the likelihood of the same DNA recurring in members of the same ethnic population.

The application

8. With that background we turn to the grounds of appeal. The evidence in the case was that the control samples from the applicant matched the samples taken from the victims or the places where the crimes were committed. Then the control sample from the applicant was compared with a database. In this case the database became called in evidence the Red Cross database. That database had been collected under the supervision of a witness Miss Christine Li in Hong Kong from persons who were ethnic Chinese. When the control samples were compared with the database, the occurrence rate of the applicant's DNA profile was said to be one in 3.4 million.

Ground 1(a) and (b)

9. The first ground of appeal is

"There was no evidence beyond reasonable doubt that the database was confined to people of Hong Kong origin rather than of Chinese origin."

It is suggested by Mr Matthews that thereby the statistical evidence put before the jury was flawed. There was an issue to leave to the jury on the reliability of the database which the judge did not leave. This was whether the database was confined to people of Hong Kong origin.

10. The answer to this is to be found in the evidence of Mr Tsui, one of the scientific experts. He was asked by counsel then defending the applicant questions relating to this and I quote:

"Q. Doctor Law dealt with this, to some extent. From your point of view, from a statistical point of view, is there any difference between the local population and the general ethnic Chinese population of Southern China or Western China for that matter?

A. On this question all I can say is that we have done a collaborative study with the forensic laboratory in Singapore to compare our data on Hong Kong Chinese and Singaporean Chinese. It would seem that the figures do not differ significantly. There is no statistical significance significant statistical difference between the Chinese databases in the two localities. But, if you talk about a minority tribe in a remote region of China, I cannot guarantee."

11. Further evidence was given to the same effect, in other words, that it would make no statistical difference whether there were 'interlopers' from China in this database or not. The consequence was that at the end of the prosecution case there was no real issue about the validity of this statistical database for the judge to leave to the jury, although he had undoubtedly made it clear to the jury in his summing up that all questions of fact were for them not for him.

Ground 1(c)

12. That brings us to the next ground. The whole of the scientific evidence as to the incidence of the applicant's DNA profile was based upon ethnicity and therefore upon the applicant also being of Chinese ethnicity.

13. On this Mr Matthews rightly points out that there was no formal evidence. He submits therefore that the whole of the scientific evidence in the case falls to the ground. This was a submission made by Mr Mackay at trial.

14. The judge dealt with this in his summing up at page 36E

"Mr Mackay for the defence said that there was no proof that the defendant was an ethnic Chinese and the frequency of occurrence was based from the database from blood samples collected from ethnic Chinese. Well, the defendant has a typical Chinese name. His speeches are that of an ethnic Chinese. He answered his plea in a Punti dialect. He is conversant with the Punti dialect as can be seen from the fact that an interpreter interpreted to him in Punti dialect. Whether you consider him as an ethnic Chinese or not is a mater for you."

15. In other parts of the summing up he dealt with the same point in much the same manner suggesting that the jury must have no doubt if they were to convict or rely upon the DNA evidence that the applicant was an ethnic Chinese. The judge's approach of taking the applicant at face value is challenged by Mr Matthews. He says this was not an approach that the judge was entitled to take in the absence of the evidence and therefore his direction to the jury was wrong in law.

16. The question for this court is is Mr Matthews right? It is pointed out by Mr Bruce S.C., for the prosecution that in none of the reported cases is there any reference anywhere to any evidence being called as to the ethnicity of the person against whom DNA evidence has been given. That may be so but it is not a matter that impresses this court. The answer to the question posed can be found from the way in which the trial proceeded. The whole basis of the scientific evidence was that the applicant was of Chinese ethnicity. That can be seen from the evidence the witnesses gave and the conclusions they drew. Each of those witnesses was cross-examined or there was an opportunity to cross-examine. They took the applicant's ethnicity at face value. The fact is that no issue was raised at trial as to the applicant's ethnicity. It could have been raised and was not raised. If the basis of the evidence was wrong it ought to have been challenged. In those circumstances the judge and jury along with the scientific witnesses were entitled to accept the applicant's ethnicity at face value in the manner in which the judge invited the jury to do.

17. It remains only to say that if an issue of this kind is raised and particularly if evidence is given as to a person's ethnicity then that will fall to be dealt with on the evidence.

18. In the result there is no arguable ground of appeal in relation to the database, its adequacy and the applicant's ethnicity.

Ground 2

19. The next matter raised by Mr Matthews is that the judge wrongly interfered with the right of the applicant to put the prosecution to strict proof by the calling of viva voce evidence by implying that the applicant's legal aid funding would be revoked and further made highly prejudicial remarks about the conduct of the defence case in the presence of the jury.

20. The circumstances in which the matter arose were that after Doctor Yue Tak-tai had given evidence of taking the control sample of blood from the applicant for a very few minutes, and Mr Mackay for the applicant asked no questions.

21. The background is this. Section 65B of the Criminal Procedure Ordinance provides that an accused person may agree to a witness's evidence being read to the jury as his evidence, without there being the necessity of calling that witness, if there is no dispute about the evidence and the accused person does not want to ask any further questions. It is a considerable saving of time and expense particularly to witnesses who have important functions to perform outside court. Judges are therefore always anxious to encourage counsel and accused persons not to insist upon witnesses attending court unnecessarily. It would appear that Doctor Yue had been called to court to give evidence for a few minutes without any good reason. It was in those circumstances that the judge challenged Mr Mackay on the matter. He did so in front of the jury. In the course of an exchange with counsel he said as an example:

"The doctor has to attend to many other functions. And here you are telling him to come just to repeat what was said in the statement. It is a waste of everybody's time. Your client is on legal aid and he is wasting Hong Kong people's money for doing that."

The judge repeated the same sort of expression indicating that he thought the counsel and the applicant were wasting time and money.

22. On the other side of the coin, it appears that the applicant had instructed Mr Mackay that all the witnesses should be asked to attend court to give evidence to ensure that those witnesses were still available to give evidence. After all the trial was taking place years after the offences.

23. The jury were invited to retire and the judge repeated some of the things he had already said suggesting at one stage that if the applicant refused to listen to advice from counsel on this matter, he thought legal aid should not be granted to him.

24. Finally, however, that the matter was resolved. It was clear that the real concern of the applicant and his counsel was that the witnesses whose statements had been provided were available to give evidence. The judge explained the position to the jury and said there would be a short adjournment so the matter could be dealt with between the prosecution and defence and indeed it was resolved.

25. The real question for our consideration is whether consequent upon that exchange in front of the jury the applicant was deprived of a fair trial. It is said that the judge diminished counsel in the eyes of the jury and may have wrongly encouraged the defence to allow witnesses to be read rather than called when the prosecution was being put to strict proof of the offences.

26. There can be no doubt that to raise the matter was well within the judge's discretion and even his duty. It could be said with point that when a matter of this nature is properly raised by a judge it is wise for him to deal with it in the absence of the jury.

27. Mr Bruce for the prosecution is unable to defend the words used by the judge but says nevertheless that put into its proper context it cannot be said that there was any miscarriage of justice.

28. The judge's suggestion in front of the jury that there was a waste of money and a waste time would have been better not said in front of the jury. There is always a risk that in making such comments the judge will diminish the counsel in the eyes of the jury and imply that counsel is behaving improperly. Put into its proper context, however, there was no risk that the applicant had an unfair trial. The jury must have understood from the way the trial proceeded that there had indeed been something for the judge to raise. And that which the judge raised with counsel was not directed to any of the issues in the trial. It was directed purely to the procedure and it could not be said that at any stage counsel was prevented from making any point he wished to make, or from having any evidence called which it was necessary for him to have called, or not to cross-examine any witness which required cross-examination.

29. In conclusion we agree with counsel for the prosecution that this did not result in a miscarriage of justice or indeed an unfair trial even though some of the things which were said would have been better not said.

Ground 3

30. That brings us to the final ground of appeal which is that the judge wrongly admitted into evidence the identification of the applicant by one of the victims. The points made by Mr Matthews were made by counsel at trial. The identification parade was held five years after the event. The opportunity for the victim to observe the applicant was limited. His face was covered with his hand for some of the time. The lighting was poor if not almost non existent. And the circumstances were frightening. Had there been no other evidence of identification there is little doubt that the judge would have had to rule it out. As it is, however, there was supporting evidence for the identification in the DNA profiling. With the presence of that evidence it was in our judgment open to the judge to exercise his discretion in the way that he did.

31. Turning to the well-known case of R v Turnbull & Another [1971] QB 224 at 229H where Widgery L CJ said:

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification."

32. This passage supports significantly the judge's exercise of discretion in this case. There is no ground for this court to interfere. Having admitted the evidence the judge gave impeccable directions to the jury on the basis of that case.

33. For those reasons this application is refused.