CAC C 93/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 93 OF 2012
(ON APPEAL FROM HCCC NO. 396 OF 2011)
________________________
BETWEEN
SECRETARY FOR JUSTICE
Appellant
and
TANG SAU LING (鄧秀領)
Respondent
________________________
Before: Hon Stock VP, Yeung VP and Macrae J in Court
Date of Hearing: 4 December 2012
Date of Handing Down Reasons for Judgment: 7 February 2013
________________________
REASONS FOR JUDGMENT
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Hon Stock VP (giving the judgment of the Court):
Introduction
1. On 28 October 2011, the respondent was committed for trial upon an indictment which charged her with the murder of her husband. However, she made an application under section 16 of the Criminal Procedure Ordinance, Cap 221, that she be discharged on the ground that the evidence disclosed in the committal documents and supplemented by additional evidence filed with the Court of First Instance was insufficient to establish against her a prima facie case for the offence with which she was charged or for any other offence for which she might be convicted upon that charge.
2. The application was heard by McWalters J and succeeded and, by order dated 2 March 2012, he directed that she was not to be arraigned on the charge of murder and that she be discharged.
3. By notice dated 7 March 2012 the Secretary for Justice lodged his appeal against that order, pursuant to the provisions of section 81E of the Criminal Procedure Ordinance.
4. On 4 December 2012, we allowed the appeal, set aside the orders made on 2 March 2012 and directed that the respondent be tried upon the indictment which had been quashed. We said that we would provide reasons for our decision and this we now do.
The evidence on the papers
5. The incident which resulted in the husband’s death occurred on 11 February 2011 in a small flat in an estate in Kwai Chung. The respondent was then aged 40 years. She lived there with her husband Cheung Yan Kan who was then aged 72 years, together with their two daughters aged 15 and 13 years and their son who was then aged 12 years.
6. The husband was born on the Mainland. He married his first wife in 1960 and they had a son (to whom we refer as the elder son). The husband came to Hong Kong many years ago and the first marriage was dissolved.
7. In 1992 he met the respondent on the Mainland and they married there. She came to live in Hong Kong with their three children in 2009; and they lived with her husband in the Kwai Chung flat. In the meantime – in 2003 – the husband had retired. It seems to be common ground that he was a gambler, a man of difficult disposition and temper and that by the time of the events in question, he had frittered away his pension and the family depended upon social security, despite which fact he continued to gamble and to seek money from his family members to do so.
8. The eldest son, who did not live in that flat, was telephoned by the respondent at about 9:30 am on 13 February 2011. She told him that her husband was in bed and had not responded to her attempt to waken him. She asked the older son to come quickly and told him that her husband had fought with people earlier at the Jockey Club betting centre. He went with his uncle to the apartment. The husband (to whom we shall refer as the deceased) was dead on his bed, which was in the sitting room. The police were called. There were three plasters on the father’s forehead and a wound to the back of his head and when the older son asked the respondent how it was that the old man was injured, she said that he had been injured after falling from “somewhere high onto the floor at home the night before”.
9. Apart from the testimony of the eldest son and also of the uncle, the evidence which the prosecution proposed to call at the trial of the respondent was multifaceted. It included the evidence of the 12-year-old son who was interviewed at length a couple of days after the incident in question; the evidence of a forensic pathologist, Dr Ying, who had carried out an autopsy upon the deceased and who had also been presented with medical reports and photographs evidencing such injuries to the boy’s neck as had been occasioned by the deceased on 12 February; and records of interview of the respondent on 14 February 2011. It was on the basis of statements and records of interview from these witnesses that the judge was called upon to make his section 16 decision. Section 16 applications do not envisage oral testimony and none was adduced.
10. In his video interview at a child-centre interview suite on the evening of 15 February 2011, some three days after the incident in question, the boy said that during the morning of 11 February he had had a disagreement with his father, the deceased. He said that a few days before, his father had said that somebody had stolen his wallet or handbag at the races and that he had lost money at gambling and he asked the boy (and the other members of the family present) for money but the boy asked why it was that the father intended to go gambling when the family relied on comprehensive social security. This made the father angry and he picked up a wooden rod and then, having discarded the rod took hold of the boy’s neck with one of his hands and demanded that the boy quickly produce some money. He kept hold of the neck for about 20 seconds and the boy felt that he was going to die. His mother, the respondent, seeing what was happening, “offhandedly”[1] picked up the rod and hit the deceased on the head several times. She hit him, said the boy, “unintentionally”[2] . The deceased then released him. The result of the blows to the deceased’s head, at this stage, was, according to this interview, that he was bleeding “slightly”[3] ; “a little”[4] ; “there was some redness on his head with slight bleeding”[5] ; there was “very little blood … it seemed to be surface injury”[6] .
11. What then happened, according to this account, was that the deceased was taken to his bed. By this stage such bleeding as had occurred had stopped.[7] However, a while later, at about noon, the deceased lost his temper again and said something was wrong with the Chinese New Year “couplets” (a pair of paper posters or scrolls) hanging on the wall beside the deceased’s bed and the deceased crawled to the top bunk of his bed (he had been resting on the bottom bunk) and tore down the posters but, in doing so, he fell and banged his head. As a result his head was bleeding somewhat more seriously after the fall than was occasioned by the respondent’s conduct with the rod earlier on[8] . His mother helped to stop the bleeding – so she told him – and “at that time we asked him if he needed to dial 999 for a doctor or an ambulance [but] he said he didn’t need to do so after the bleeding had stopped.”[9] His father went back to bed and later that day – sometime after 7 pm – the family called him for dinner but he declined the invitation. Food was taken to him but he declined that as well. Later that evening his father got up to urinate and went back to bed.
12. In the course of her interviews, the respondent described a contretemps between father and son whereby she saw the father strike the boy with the rod and the boy pushing his father away; whereupon he grabbed the boy with both hands by his neck saying, according to the translation we have: “I’ll let you see him being grabbed to death. I would might as well forsake this son.”[10] The boy could not speak; he could hardly breathe; and she feared that the boy would lose his life because the deceased was grabbing him so hard that he could not breathe.[11] The boy almost died.[12] So the respondent took up the rod and hit the deceased three times about his head and then he let the boy go. The final blow which she administered to the deceased’s head caused bleeding – in fact it caused his face to be full of blood[13] but she and the boy staunched the blood quickly.
13. She then said that the deceased went to his bed and at about 1 pm that day he went to tear off the New Year scrolls and fell. He then bled profusely at the back of his head. She did not call for help because the bleeding was again staunched and she thought it would not bleed any more and that there was therefore no need to call for an ambulance. He refused dinner that night and the next morning when she asked if he wanted congee for breakfast there was no response.
14. The son was examined on 14 February 2011 by doctors at Princess Margaret Hospital. He told one of the doctors that his father had used his hand to hold his neck. There were several bruises to the neck and the pathologist who studied the photographs taken of them soon after the event said the injuries were consistent with being caused by fingertip and fingernail but that “in the absence of signs of asphyxia … it indicated that the amount and duration of force applied on the neck would not be significant.”
15. As for the autopsy findings, eight lacerations were found scattered over the head of the deceased, five of which were “highly consistent with head injuries being inflicted with rodlike objects” and that “the other three could be possible being inflicted by falling [but] the locations of the injuries indicated that a simple fall could not be accounted for their causes. The lacerations present on the head per se were the lethal injuries that resulted in profuse bleeding … and cause[d] his death slowly.”[14] Having read the statements of various witnesses, he said that “the injuries found [to the] head could be caused by the [respondent] with rodlike hard objects and falling down from bunk bed. On the other hand, the injuries found on upper limbs and right lower limb … were more likely to be beaten with hard object. … The lacerations found on the head were the lethal injuries that resulted in profuse bleeding … and cause his death slowly. Therefore if the deceased had received prompt medical attention, the deceased had higher chance to be saved.”[15]
16. The reference to injuries to the limbs of the deceased is a reference to significant injuries to both upper limbs including an oblique fracture of the inner right forearm bone and dislocation of a metacarpal joint; as well as to injuries to the lower limbs. The injuries to the upper limbs were, according to the pathologist, typical of defensive injuries and their severity indicated that they had been subject to considerable force.
The prosecution case
17. The prosecution accepts that there was an attack by the father upon the boy and that the respondent mother responded to the attack by using the rod to strike the deceased. It contends however that she went further than was reasonably necessary in defence of her son and did so with an intent to cause really serious harm. There is a further limb to its case which is to allege in the alternative manslaughter by breach of the duty of care cast upon the respondent by reason of her relationship with the deceased and by reason of the fact that she caused him injury, to take reasonable steps to lessen the consequences of the beating about the head; and that she twice failed to seek assistance for the deceased when she ought to have done so. Manslaughter would also be an available verdict if reasonable defence of the boy were negatived and there was a failure to prove the requisite intent (unlawful act manslaughter).
The test
18. Section 16(1) of the Criminal Procedure Ordinance provides that :
“Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap 227) or proceedings stand transferred to the court for trial under section 77A(6) of the District Court Ordinance (Cap 336), the accused may at any time-
(a) if the Secretary for Justice does not institute proceedings within the period specified in section 14(1)(a) or (aa), as the case may be, after the expiration of that period; or
(b) after the filing of the indictment and prior to his arraignment thereon,
apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.”
19. The appropriate approach to section 16 applications may usefully be gleaned from the judgment of Silke VP in Attorney General v Phung Van Toan[16] , adopting[17] for the purpose of section 16, the test applied by Kempster JA in Attorney General v Li Fook Shiu Ronald[18] in relation to section 22 of the Complex Commercial Crimes Ordinance, Cap 394 which empowers an accused at any time before the empanelment of the jury to apply to the judge for his discharge on the ground that the evidence disclosed is insufficient to establish a prima facie case against him for the offence with which he is charged. Kempster JA said, of a judge hearing a section 22 application that :
“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith [19] . Both can critically be affected by later evidence or a lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.”
20. Importantly for present purposes, Silke VP added this :
“At the time of this type of application no word of oral evidence has yet been heard. A court faced with such an application is not enjoined to consider the quality of the evidence. To do so would be to usurp the function of the jury.”[20]
The hearings
21. The judge’s ruling is either good as it stands or not; but it is worth alluding to the arguments and some of his comments in the course of the hearings for they foreshadow the reasoning we see in the ruling and we wish to allude to some of the propositions when we address the law.
22. At the first hearing, the pre-trial review, the judge made it clear that he was concerned as to whether or not the prosecution indeed intended to proceed with the case against the respondent saying that he wanted “to be convinced that the prosecution still say that they have a reasonable prospect of conviction, therefore it is proper to proceed.” “Was there”, he asked, “a reasonable prospect of jury finding for the prosecution that the respondent in coming to the aid of her son was acting excessively?”
23. Counsel for the prosecution suggested that the question indeed arose whether the defence of her son was excessive and he contended that the son’s description of what had transpired appeared to be inconsistent with the attack described by the respondent; and that the number of blows to the deceased revealed by the pathologist’s report did not sit easily with the evidence thus far of the son and of the respondent. He made it clear as well that there was an issue of breach of duty by the respondent to seek help for her injured husband and that that was the basis upon which, in the alternative, the prosecution was minded to seek a conviction for manslaughter.
24. At the hearing of the section 16 application on 28 February 2012 there emerged a central theme of the judge’s analysis, namely, that it was not open to the prosecution to contradict or qualify a key part of the account given by the son in his interview as to the circumstances and ferocity of the attack upon him by the deceased. Counsel for the prosecution expressed reservation, not about the fact of the deceased’s assault upon the boy, but about the reliability of the boy’s (and of the respondent’s) assertions concerning the detail and the ferocity of the attack on the boy: and he pointed, by way of example, to the pathologist’s witness statement with its reference to the significance of the absence of signs of asphyxiation; to the boy’s reference to the use by the father of but one hand; to the presence of more injuries to the deceased’s head than the three blows which the respondent said she had inflicted; and to the presence of substantial defensive injuries to the deceased’s upper limbs, suggestive, he contended, of a vigorous attack by the respondent after the deceased let go of the boy’s neck.
25. The judge appeared to take the view that it was not open to the prosecution in relation to a prosecution witness to invite the jury to accept as reliable only part of his testimony and, by reference to other prosecution evidence, to invite the jury to accept testimony that conflicted with or qualified the boy’s account. Thus it was that the judge asked, when prosecuting counsel referred to the absence of signs of asphyxiation as undermining the boy’s suggestion that the amount and duration of force applied to his neck was significant: “Are you telling me that you’re seeking to impeach the credit of your own witness on a key part of his evidence?.. You either call this person for the purpose of inviting the jury to accept his evidence, or you don’t call him.” The judge added that given the nature and circumstances of the section 16 application, the prosecution had the “enormous benefit of me having to take the evidence at face value and assume that, for the purposes of this application, the jury accept that evidence without qualification. … That means that I have to accept what the son says.”
The ruling
26. The judge correctly directed himself as to the section 16 test, namely, that he was “not concerned with what findings of fact I would make or even with what findings of fact the jury would make, but rather with what findings a jury could, may or might make. In making this determination I did not assess the quality of the evidence for that would be to usurp the function of the jury.” He then added: “I assume that all evidence that is admissible and probative of the issue in dispute will be accepted by the jury and decide whether, given that evidence, a properly directed jury could, may or might find that issue proven by the prosecution.”[21]
27. In the summary of the prosecution case he said that: “Essentially the evidence of self-defence comes from the family’s evidence and the evidence to rebut it comes from the medical pathology evidence.”[22] In reference to the evidence of the forensic pathologist that the absence of signs of asphyxia indicated that the amount and duration of force applied to the neck was not significant, the judge commented that: “The prosecution seizes on this latter opinion as evidence that the son’s situation may not have been as perilous as he thought at the time and that the father may simply have been holding the son by the neck rather than actually choking him.”[23]
28. In relation to the respondent’s explanations, as disclosed by the documents, he said that the incident in which the deceased had fallen when trying to remove a poster “in fact took place about an hour after the [respondent] had assaulted the deceased of this event [and] did not cause the laceration to his head which led to his death.”[24] He noted the prosecution’s suggestion that doubt was cast upon the respondent’s credibility by reason of her false assertion that the deceased had been involved in a fight at the Jockey Club; and by the fact that although she had claimed that she had only hit the deceased three times after which the deceased let go of the boy’s neck, the pathologist’s evidence pointed to five lacerations suggesting blows after the boy had been released. The judge thought that this reliance upon the respondent’s assertion of only three blows was not realistic for the respondent had referred elsewhere in her interview to the situation having been chaotic so that she could not remember how she had been holding the rod, and the judge said: “This I have no doubt more accurately reflects her ability to accurately recollect the incident. Nevertheless I accept that what weight should be put on this point is a matter for the jury and I accept that it is some evidence that could be used to rebut the defence of self-defence. However, I do not see anything in the records of interview that throw doubt on the genuineness of her claim that the reason she assaulted her husband was in order to save her son.”[25]
29. He then reviewed the essential features of the forensic evidence and noted that: “Essentially the prosecution rebuttal of self-defence is a forensic based one. The prosecution say that the number of blows to the head and the force that must have been behind them in order to cause the injuries evidence an unreasonable and disproportionate response to the danger with which the defendant was dealing. Furthermore, the fact that the defendant continued to assault the deceased, with considerable force, after he released the son evidence[s] an intent to attack the deceased rather than merely causing him to release their son.”
30. We then arrive at the Ruling and the reasoning behind the judge’s decision. The judge noted the context of the case, namely, that it was the case of a mother coming to the aid of a son who is only 12 years of age “and who’s life is at risk”[26] and that the respondent’s response to the attack on her son was an escalating one whereby “finally she strikes a much harder blow and this causes him to release his grip on the son’s neck. It was presumably this blow which caused the “full thickness laceration of the scalp.”[27]
31. He went on to say that: “The evidence that there was no sign of the son having suffered asphyxiation is of some, but only small probative value to the prosecution. The reason I say this is because there could be an explanation for this such as the action of the [respondent] inhibited the deceased in his efforts to strangle his son. But be that as it may it must be remembered that the law focuses on what the victim, or in this case the person aiding the victim, believes the situation to be, not what the situation may actually be. Here the son “believed he was being strangled and believed he was going to die.” He added that the forensic evidence “cannot prove that the [respondent] must have known that the son was not in fact in imminent danger of losing his life and therefore was responding excessively to a non-life-threatening situation.”[28] The focus, he said, of the application was therefore on the second limb of the self-defence test, namely, whether the force used went beyond that which was reasonable in the circumstances honestly perceived by the respondent. In relation to the first limb, namely, the prosecution suggestion that there was evidence that the respondent did not hold the requisite belief as to the degree of peril to her son, the judge said: “I reject that entirely. In my view all the evidence, on the papers, is entirely one way and on this limb there is undoubtedly insufficient evidence to enable the jury to conclude otherwise.”[29]
32. So the judge turned to the second limb, namely, the question of reasonable or unreasonable response to the attack on the son. What the judge said was this:
“34. To my mind there is an air of unreality to the prosecution’s response to this death and to this application. It is almost as though it was trying to reconstruct what happened through the forensic evidence when it knows what happened because it has the son as its eyewitness to these tragic events. There would have been nothing wrong with the prosecution re-interviewing the son and eliciting from him, so far as it is possible, further details of the argument with the father and its aftermath, putting to him any queries that the forensic evidence might raise for that matter are raised by the [respondent's] two video interviews. But it has not chosen to do this. Instead it has suggested there are question marks about the son’s evidence in a way which borders on seeking to impugn its own witness. This is not an appropriate way to proceed and is contrary to the prosecutor’s role as minister of justice. The prosecution is putting the son forward as a credible witness worthy of belief and as the only eyewitness to the events he becomes, in effect, the prosecution case.
Conclusion
35. Given the son’s evidence and the contextual matters to which I have referred I find it surprising that a prosecution is taking place at all. To my mind this is a classic case … of recognizing that a person defending himself cannot be expected to weigh to a nicety the exact measure of his necessary defensive action. Bearing [that] in mind and taking account of the contextual matters I have mentioned I conclude that each of the pieces of forensic evidence on which the prosecution relies to rebut the defence of self-defence is very weak. Individually they are not capable of proving beyond reasonable doubt that the defendant did not act in self-defence and nor can their cumulative effect do so.”
Analysis
33. Although the judge correctly, at the outset of his ruling, referred to the terms of section 16 including the aspect that the application for discharge required consideration of the evidence relating not only to the offence of murder but also to “any other offence for which she might be convicted upon the charge”, he unfortunately failed, in the event, to address the issue of manslaughter by reason of the alleged breach of duty of the respondent. This was no doubt an oversight occasioned by the fact that so much of the argument and of his concern was directed at the issue of self defence. Nonetheless, there appears to us to be a prima facie case of manslaughter on this basis, for which reason the ruling could not, at least to that extent, stand.
34. As to the main issue, we were satisfied that the judge had erred in his view of the duty of the prosecutor in cases where the evidence of a prosecution witness was in part contradicted or qualified by the evidence of another proposed prosecution witness.
35. It is apparent from the transcripts of the hearings that the judge was moved by the evidence in the documents to considerable and understandable sympathy for the predicament of the respondent occasioned by the deceased’s apparent unpleasant and difficult disposition and by his use of violence upon their son on the morning in question but his concern resulted we think in an overly robust approach which took him beyond the limits permitted by section 16.
36. It is not the law that a prosecutor is precluded from leading contradictory evidence; or from inviting a jury to accept part of the evidence of a witness it calls but to view other parts as qualified by contradictory testimony from another source to be adduced in evidence by that prosecutor. It is not correct to suggest that the prosecutor either calls a person for the purpose of accepting his whole testimony or not at all.
37. We note that the judge was not referred to those authorities which have been drawn to our attention on the point, the most direct of which in terms of these issues is R v Cairns and others[30] , a decision of the Court of Appeal of England and Wales. In that case, it had been submitted at trial that the testimony of a co-conspirator whom the prosecutor intended to call should be excluded because the prosecutor intended to rely only on his evidence as it affected two of the defendants but who was viewed by the prosecutor as unreliable in relation to a third defendant who was the wife of that witness. It was submitted on behalf of the appellants that the prosecutor was not entitled to adopt an inconsistent approach to its witnesses, that the course proposed amounted to the prosecutor impeaching the credit of his own witness and that he was not entitled to cherry pick the evidence. This submission was rejected and an extensive section of the judgment of Kennedy LJ in Cairns is gratefully adopted by us for its encapsulation of the duty and rights of a prosecutor in this context :
“29. … Such authorities as there are on the prosecution’s duty and its discretion as to the witnesses it calls all seem to be ones where the prosecution had decided not to call a witness. In other words, they deal with the circumstances in which the prosecution is or is not obliged to call a witness. They do not deal with the present issues, where it is being contended that the prosecution should not have called a witness.
30 None the less those authorities do, in our judgment, provide a valuable starting point. In R v Russell-Jones [1995] 3 All ER 239 this court presided over by Kennedy LJ reviewed the authorities and set out a number of principles which are cited in Archbold’s Criminal Pleading, Evidence and Practice , 2002 ed, para 4-275.
31 For present purposes they can be briefly summarised and we do no more than that. The prosecution has a discretion as to the witnesses it actually calls at trial. But the discretion is to be exercised in the interests of justice and therefore is subject to the overall control of the court on the usual principles applicable to the exercise of a discretion. If a witness can give direct evidence of primary facts and his evidence is capable of belief, then a proper exercise of the discretion will normally require him to be called by the prosecution.
32 However, the prosecution is not required to call a witness whose evidence it regards as unworthy of belief. As Kennedy LJ put it, at p 245: "his evidence cannot help the jury assess the overall picture of the crucial events; hence it is not unfair that he should not be called."
33 Similar principles were approved in the more recent case of R v Brown (Daniel) [1997] I Cr App R 112.
34 If one moves away from the question of whether the prosecution is obliged to call a witness to that of whether it is entitled to do so, the same overriding criterion of the interests of justice must apply to the exercise of its discretion. If the prosecution took the view that a particular witness could give no evidence on which reliance could be placed, then it would normally not be in the interests of justice for that witness to be called by the prosecution. In Kennedy LJ’s words, "his evidence cannot help the jury," because in the prosecution’s view his evidence is not capable of belief.
35 But it is not uncommon for there to be witnesses whose evidence is regarded by the prosecution as largely, or in part, worthy of belief and reliable but not wholly reliable. There may be good reason for the prosecution arriving at such a judgment. It is a normal human experience that people sometimes tell the truth about certain matters but may not be reliable about others, as the verdicts of juries from time to time suggest. There is no reason why a jury should not regard part of a witness’s evidence as true but take the position that they cannot rely upon the whole of that evidence. That not infrequently happens and it seems to have happened in the present case.
36 We know of no principle of law or justice which requires the prosecution to regard the whole of a witness’s evidence to be reliable before he can be called as a prosecution witness. If it is open to the prosecutor to form the view that part of a witness’s evidence is capable of belief, even though the prosecutor does not rely on another part of his evidence, then the prosecutor is entitled to exercise its discretion so as to call that witness. That must be so, since part of the witness’s evidence could be of assistance to the jury in performing their task, and it would therefore be contrary to the interests of justice to deprive them of that assistance. The prosecution in such circumstances is not to be prevented from calling such a witness.
37 R v Pacey The Times, 3 March 1994, relied on on behalf of the appellant Chaudhary, was not concerned with this issue as to which witnesses the prosecution were entitled to call. It was a case where the Crown called a witness to establish a crucial fact, as it saw it, that the knife used in the killing on the ground floor had been kept upstairs and therefore must have been taken by the defendant in order to stab the deceased. The witness, contrary to her pre-trial statement, gave evidence that the knife had in fact been downstairs. This, as the Court of Appeal (Criminal Division) commented, radically transformed the prosecution case. When prosecution counsel in his final speech started to cast doubt upon the credit of his own witness, he was stopped by the judge on the normal principle that a party is not entitled to attack the credit of its own witness unless it seeks, and is permitted, to treat that witness as hostile. That is a principle which received statutory recognition in section 3 of the Criminal Procedure Act 1865 (28 & 29 Vict c 18).
38 But the prosecution is entitled to call other evidence which contradicts part of the evidence of its witness, while still relying on those parts of his evidence which are not to be contradicted: see Stephen’s Digest of the Law of Evidence , 12th ed (1936), art 147, approved in R v Prefas (1986) 86 Cr App R 111, 114. That approach indeed was recognised in R v Pacey The Times, 3 March 1994 where the court said:
"It was not open to the prosecutor to attack her credit. All they could do was to point to inconsistencies, if they existed, between her evidence and other evidence or to point to matters upon which her evidence might be unreliable."
39 So it is clear, in our view, that the prosecution may properly call a witness when they rely on one part of his evidence but not on another part. Whether they choose to call such a witness is a matter for their discretion, to be exercised on the principles which we have already set out. But that does not amount to an attack on their own witness’s credit.”
38. This approach is an articulation or endorsement of an approach of long standing, as evidenced by the fact that Stephen’s Digest on the Law of Evidence , Article 147 stated that :
“If a witness called by a party to prove a particular fact in issue or relevant to the issue fails to prove such fact or proves the opposite effect the party calling him may contradict him by calling other evidence and is not thereby precluded from relying on those parts of such witness’s evidence as he does not contradict.”[31]
39. Professor Sir John Smith’s commentary on Cairns[32] addresses the issue under the rubric “The ‘curate’s egg’ witness”:
“Are the prosecution entitled to call a witness whose evidence, they allege, is, like the notorious curate's egg, good in parts? A party who calls a witness puts him before the court as a witness of truth and is not permitted to discredit him; but it does not follow that the party should be precluded from calling a person as a witness of truth in respect of certain matters while not relying on, and indeed repudiating, his evidence as to others. Most people tell lies sometimes but no one lies all the time. Certainly the fact that a witness is lying is a good reason for looking at the rest of his evidence with particular caution but it is not conclusive. There may be ... reasons which might cause the witness to lie as to the one matter which do not apply to the remainder of his evidence; and there may be … evidence supporting "the good parts" which does not support the bad. In such circumstances the admission of such evidence, rather than its exclusion, would seem to be a requirement of a fair trial. The trial is not fair unless the court [hears] the whole of the available relevant evidence that is capable of belief.”
40. We would add this, that the rationale of that analysis applies also to mere reliability or innocent exaggeration, as opposed to a calculated lie. In other words, a prosecutor is entitled to invite acceptance of one part of a witness’s evidence as reliable and yet to adduce other evidence which may lead to the conclusion that the other part is not reliable because, say, of inaccurate memory or of a growing but mistaken belief encouraged by the passage of time and the wish being father to the thought.
41. None of this analysis is to suggest that the son or the respondent was in fact not telling the whole truth in the course of their respective interviews or that either in fact has exaggerated. That is not a matter for us. It is merely to state that the judge erred, in our judgment, when he suggested that the prosecutor was bound to accept in whole or not at all the account provided by the son and that by doing otherwise there was a breach of a prosecutor’s role as minister of justice. To the contrary, as we see it, the prosecutor was bound in the circumstances of this case to do precisely what it did. And the judge was not bound on the papers to accept everything the son said. In a case such as this where there was other evidence which could reasonably be argued to cast doubt on some parts of what he said, such other evidence could not properly be ignored and its relevance in relation to the reliability of parts of the son’s interview account and of the respondent’s interview accounts was quintessentially appropriate for jury deliberation. By the same token, it was not correct to say that the judge had to assume that all the admissible evidence revealed by the documents would be accepted by the jury for, with respect, the very fact of certain apparently inconsistent evidence – which inconsistency or inconsistencies the prosecutor was entitled and indeed duty bound to put forward – reveals the flaw in the assertion.
42. Furthermore, there were questions begged by the whole of the evidence revealed by the documents which the judge appeared to answer by reference only to the evidence of the son. We have in mind, for example, the statement – in the vein of a finding – that this was a case of a mother coming to the aid of a son “whose life is at risk” and that the son believed he was going to die. Whether the son’s life was indeed it at risk or was genuinely believed to be at risk is an issue to be determined by reference to the entire evidence, and not by reference only to the evidence of the son.
43. And, in so far as the judge criticised the prosecutor for “trying to reconstruct what happened through the forensic evidence when it knows what happened because it has the son as an eyewitness to these tragic events,” that was in our respectful judgment a misplaced criticism. For the purpose of its prosecutorial decisions and of its allegations as to the respondent’s alleged criminal liability, the prosecutor was perfectly entitled to construct what had happened by reference to the forensic evidence since that evidence forms part of the whole picture and the very point of forensic evidence is to assist, in so far as is possible in a particular case, in an analysis of what happened. Whether the forensic evidence in this particular case indeed undermines the reliability, in part, of the son’s account or that of the respondent or indeed helps in the analysis of what happened is entirely another matter; but there is nothing at all amiss in the prosecutorial use of that evidence and the suggestion that “it knows what happened because it has the son as its eyewitness” flows from the incorrect supposition that the prosecutor is bound by every aspect of that eyewitness account.
44. Nor in our respectful judgment was it correct to say that the evidence on the papers was “entirely one way.” At the end of the day, it may well be that the pointers which may be thought to qualify the accounts rendered by the son and the respondent transpire, in the jury’s analysis, to be of no consequence in aid of the prosecution’s case. But that there are pointers which require examination and which examination is essentially one for the jury is in our judgment clear. They include the following:
(1) The boy’s suggestion and that of the respondent that the boy was choking to death or that he appeared to be, is apparently contradicted by the results of the medical examination of the boy and the pathologist’s opinion that the injuries were such as to suggest that the degree and duration of force applied to the neck was not significant.
(2) There is some evidence from which a jury could reasonably conclude that the boy’s account in the course of his interview was (understandably) coloured by a desire to protect the mother; to wit, suggestions that she hit the deceased “unintentionally” or “offhandedly” and that as a result of the blows to the deceased’s head there was very little blood, merely a surface injury, an assertion upon which the medical evidence casts some doubt.
(3) The judge accepted unquestioningly the account of the deceased’s attempt to remove the scrolls and of a subsequent fall, but the nature and extent of the initial injuries and the mother’s suggestion that after that fall, in contrast to after the attack, the head bled profusely, gives rise to a need to examine the veracity of that account.
(4) Whereas the respondent asserted that she struck three blows against the deceased before he let go of his son, the medical evidence strongly suggests more than that number and this testimony together with the evidence of multiple defensive injuries to both upper limbs is evidence from which a jury might conclude that she continued to strike him after the danger to the son had passed so as, possibly, to negative reasonable self-defence leaving, it might well be thought, a viable defence of provocation.
(5) The respondent told her elder son and his uncle an untruth as to how this deceased came by his injuries. This is not necessarily inconsistent with a reaction of someone who has acted in self-defence but, by the same token, is open to the prosecution to introduce in support of its case.
45. An examination of all the evidence revealed by the documents placed before the judge upon the section 16 application clearly, in our opinion, discloses a prima facie case of murder and also a prima facie case of the alternative of manslaughter; for which reason we were bound to allow the appeal.
(Frank Stock)
(W Yeung)
(Andrew Macrae)
Mr Gerard McCoy SC (counsel of fiat) and Mr Peter Power, SADPP of the Department of Justice, for the Appellant
Mr Frederic Whitehouse, instructed by Cheung, Chan & Chung, assigned by DLA, for the Respondent
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[19] R v Galbraith [1981] 1 WLR 1039
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[31] Prefas and Pryce (1986) 86 Cr App R 111 at 114
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