THE QUEEN v. HUI SING KEUNG

IN THE COURT OF APPEAL

1986 No. 468
(Criminal)

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JUDGMENT

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Kempster, J.A.:

1. On 26th August 1986 Hui Sing-keung was convicted on the verdict of a jury of the murder of Cheng Kwok-chi at Wong Tai Sin Lower Estate, Kowloon, on 14th November 1984 in circumstances involving a concerted attack by a number of men. Against that conviction he seeks leave to appeal.

2. The gravamen of the submissions made on the applicant's behalf is that the trial judge failed adequately to warn the jury of the circumstances in which immunities from prosecution were granted to witnesses called by the Crown and of the related motivation of such witnesses to give false evidence. It was also submitted that the trial judge failed adequately to point out certain discrepancies between the evidence of two of such witnesses but we consider that his summary of their respective testimonies was all that was required in the latter regard.

3. The applicant's defence which, as he did not give evidence, is to be deduced from the way the Crown witnesses were cross-examined, involved a number of significant concessions; particularly that he had gone with friends: to meet the victim in order to discuss the severance fee claimed by the victim as compensation for the loss of the society of a girl-friend and that at or about the material time he was scuffling with the victim and, holding him by the collar. The applicant was then himself cut on the left hand when one of his friends, Wong, slashed at the victim with a knife. Wong was one of the Crown witnesses granted an immunity. It was not suggested that the applicant had expressed surprise at the sight of such a weapon or in any way dissociated himself from its use. It was the applicant's case, however, that Mr. Wong had told him that he and other mutual friends had armed themselves with iron rulers, not knives, to be used in self-defence; a precaution to which he had only assented when they made it plain that they would not accompany him to meet the victim unless so armed. That the victim died on 15th November from multiple chop wounds was agreed.

4. Our examination of the warnings given by de Basto J accordingly falls to be made in circumstances where, no evidence having been called in contradiction of that given by the three Crown witnesses Lau, Wong and Chiu, who had received immunities, the only real issue was whether or not the applicant had shared the obvious intention of other members of his party to kill or inflict really serious injury upon the victim.

5. The trial judge told the jury that it was their responsibility to consider the whole of the evidence whether or not he reminded them of this part or that and that if, after due consideration, they did not share any opinions he expressed in relation to that evidence they were perfectly at liberty to disregard them. He directed and warned them in impeccable terms of the law relating to joint enterprise and of the dangers inherent in convicting on the uncorroborated evidence of an accomplice. They would have been well aware that the principal prosecution witnesses were no less accomplices because granted immunity. He pointed out that an accomplice might have reasons of his or her own in giving the evidence he or she did as, for example, to minimise his or her own criminal responsibility and to exaggerate that of others. The judge's failure to tell the jury that the wound to the applicant's hand corroborated Wong's account of the attack on the victim was to his advantage. There were left with the jury copies of the formal immunities, dated. 25th April 1986, which were conditional upon the witnesses giving full and true evidence at the applicant's trial.

6. In relation to Wong and Chiu de Basto J reminded the jury of the circumstances in which the statements were given and the immunities promised and also of Wong's bad character and of his apparent change of attitude to the truth or at least to the whole truth when and after he surrendered himself to the police. However, strong complaint is made, in relation to their evidence to the effect that the applicant knew that knives were being carried and, indeed, carried one himself, of the judge's suggestion that they had nothing to gain from telling lies. This suggestion, which involved an expression of opinion, certainly failed to take into account the likelihood that the witnesses would wish to give evidence consistent with their respective statements whether or not those statements were true. Wong had said under cross-examination that he would have regarded his immunity as at risk had he done otherwise. But, in the particular context, the judge again warned the jury twice that this was a matter upon which they had to make up their own minds. We are unable to accept the submission made by Mr. Plowman on the applicant's behalf that the trial judge's expression of opinion, which for our part we do not share, constituted a misdirection rendering the conviction unsafe or unsatisfactory. Alternatively if the judge's expression of opinion constituted a material irregularity we would without hesitation find that no miscarriage of justice had actually occurred.

7. R v Pipe[1] cited to us had no bearing on the application. In that case, contrary to well established practice, the Crown had called an accomplice against whom a prosecution was still on foot and he was to appear in court the following day.

8. The application for leave to appeal against conviction is dismissed.

9. Before parting with this case we think it proper to put on record our concern at the way immunities were initially offered by the police, with no apparent reference to the Director of Public Prosecution or to the Attorney General at the time, though subsequently granted by or on behalf of the Attorney General. Further, the immunities were couched in the English language which could not be understood by the witnesses without interpretation. We hope that consideration has been or will be given to drafting promises of immunity in the language of the recipients.

[1]  [1967] 51 Cr. App. R.17