R. v. CHAU KWOK-HUNG AND ANOTHER

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J U D G M E N T

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Penlington, J.A.:

1. The applicants were convicted by His Honour Judge W. Wong on the 11th March 1991 on two charges of wounding with intent to cause grievous bodily harm. They received sentences of three years' imprisonment on each charge, the terms to be served concurrently.

2. The incident giving rise to those charges arose out of a trivial dispute, as is so often tragically the case, which occurred in the Snake Forest Restaurant at Sai Lau Kok Road, Tsuen Wan, 1:30 a.m. on the 9th April 1989. It was not in dispute that a group of young people, including two brothers, Cheung Chi Kin and Cheung Chi Kit, had a dispute over a chair at a table (No. 17) in the restaurant, which apparently was very crowded. One of the Cheung group, Lam Ping Hung, had gone to the toilet and when he came back he found his chair had been taken. He had an argument about this with the person who was occupying his chair who, it was the Crown's case, was the 1st applicant (D1). He was with another group at a nearby table (No. 10). The argument continued and eventually the manager came and told the Cheung group to leave. They paid the bill and did so. However when they got onto the road outside the restaurant they were attacked by two men wielding knives which, it would seem, they had obtained from the restauraht's kitchen. It is the Crown's case that these two men were D1 and the 2nd applicant (D2) and that they then inflicted severe wounds on the Cheung brothers.

3. There is no dispute that the Cheungs were injured by assailants and the only point in issue was one of identification. It was the defence case at the trial that the identification of the applicants by various witnesses from the Cheung group and by some restaurant employees was not of sufficient standard to justify the trial judge finding that he was satisfied beyond reasonable doubt that the assailants were the applicants. It has been argued here that the evidence was firstly unsatisfactory and that secondly the trial judge has made findings of fact which, on the evidence, he was simply not entitled to come to.

4. Following the incident there were apparently two identification parades. The first of these was on the 10th May 1989 and the second on the 17th July 1990, both at Tsuen Wan Police Station. Evidence was given regarding this latter parade by the officer in charge of it, Chief Inspector Boyton. He related the manner in which the parade was conducted and he produced as an exhibit the parade book in which he had written down a detailed account of the conduct of the parade. There was no objection to his producing the book at the time but the point is now taken that there was no power for the trial judge to admit the book as an exhibit in that manner. It was not in dispute that D2 was one of the persons on that identification parade. So far as the first parade was concerned the parade book was not produced nor was any evidence called from the officer in charge of it.

5. It would seem that at the close of the Crown evidence the court was informed that the defence had no submissions to make at that stage and would not be calling or giving any evidence. The trial judge then decided that he would inspect the scene. That was duly done, though complaint is made that the trial judge failed to keep a record of what he observed. Little however seems to turn on that.

6. When the court resumed some three days later the trial judge asked prosecuting counsel as to the evidence of the first identification parade. He was informed that the evidence "was agreed" though it is by no means clear what was agreed. However defence counsel disputed that and said he objected to the evidence being produced at that stage. His only reason was "it's a crucial mistake". Prosecuting counsel then said "I don't see how my learned friend can say he would not agree because he said he would only require Boyton to be called. It was agreed. If it is not agreed I would ask for leave for the inspector to be called". The trial judge however ruled that as the prosecution and the defence had closed their case, and although it was unfortunate because it was an oversight, reluctantly he would not grant leave. The failure to produce evidence regarding the first identification parade has been the main ground of appeal of D1 and we are quite unable to understand why the trial judge would not allow the Crown leave to call the evidence when the failure to do so was simply due to a misunderstanding between counsel. It was not an oversight. The defence had not called any evidence and had made no submissions at the close of the Crown's case. There could be no question of any prejudice to the defence in allowing the Crown to call this evidence which was necessary to ensure a proper trial. Where there is such a misunderstanding such as this and there is no prejudice to the defence there is no reason why the prosecution should not be allowed to call the additional evidence.

7. The facts here are very similar to R. v. Francis (1990) 91 Crim. App. R. 27. There the prosecution had failed to give evidence as to the number of the position at which the defendant was standing at an identification parade. Lloyd, L.J., giving the judgment of the Court of Appeal, held that the trial judge was perfectly proper in allowing this evidence to be given after the prosecution had closed its case. He said:

"it appears from that passage that Mr. Price was under the impression, rightly or wrongly, that the name of the persons standing at position 20 was not in issue. That was the reason why he did not ask the question of the police officer. Whether that was his fault or not may not matter. That was, as Mr. Price has confirmed to us this morning, his understanding at the time. Mr. Thomas has very properly accepted what Mr. Price has told us. It follows that the failure to adduce the evidence in this case was not due to any oversight on the part of Mr. Price but to a simple misunderstanding between counsel."

8. Here the defence should not have tried to take advantage of a misunderstanding and the trial judge should not have permitted it to do so.

9. Both the victims gave evidence. The first one, Cheung Chi Kin, was not considered by the trial judge as a reliable witness because he had not been involved in the quarrel between the two groups and had just returned to the restaurant at the time of the incident outside. He agreed in cross-examination that he had only a fleeting glimpse of the assailants. The evidence of the second of the victims, Cheung Chi Kit, was also not given any weight because he had said in evidence that he had been drinking, that he was not at the table when the quarrel started and that he had been told by his friends what had happened. He said that he picked out a person at the second identification parade because he looked similar to one of the attackers.

10. A further one of the Cheung group who gave evidence was Yip Fai Hung who identified the D1 in court and said that he was present at the scene and had been armed with a beef knife. He attended the identification parade on the 10th May 1989 and he identified D1. However in reply to a question from defence counsel "At the identification parade you picked out a person similar to the person who chased you?" He answered "Yes". That answer was regarded by the trial judge as fatal to his identification evidence. With all due respect we imagine that the great majority of witnesses who have identified somebody at an identification parade and were later asked that question would reply in the same way. However the point was not taken up in re-examination and clearly we cannot go beyond the judge's finding that he could not rely on this witness.

11. Cheung Chi Wai, who is the brother of Cheung Chi Kin and Cheung Chi Kit, identified D2 in court and said that he had also identified him at the identification parade on 19th July 1990. On the 10th May 1989 he had identified a person as having taken part in the chopping incident. He did not however pick out that person as being in court. Moreover in cross-examination he agreed that the person he had identified on the 10th May 1989 was in fact an actor and not somebody who had taken part in the attack. The trial judge nevertheless said he found him to be a witness of truth.

12. Choi Mui Ling is the wife of Cheung Chi Kit and said that she was present when the quarrel occurred. One of the persons that they quarrelled with had identified himself as being "police". She said she had not been drinking and described the lighting conditions in the restaurant as normal. She identified both the applicants in court. She said that she went to an identification parade on the 10th May 1989 and she identified somebody there as one who had chopped people that night. However she then said that the person was not the first person sitting in the dock. It was agreed in this appeal that D1 was that person. She then said that a year later she went to another identification parade and she could recognise again another person who had taken part in the incident. She said "I can recognise both but I cannot remember who I picked out on which occasion. One I saw who chopped someone and the other one I did not see chopping people. D2 chopped people." In respect of her evidence the trial judge said that he considered her to be a witness of truth and accepted her evidence. He then went on to say "She picked out the Defendants in the identification parades. She picked out both Defendants in Court." With respect the trial judge did not have before him evidence to justify that conclusion in respect of Dl. There was no evidence that he was present at the first identification parade, in the absence of evidence from the officer who conducted that parade. Choi Mui Ling's evidence was that the person she picked out at the first parade was not D1.

13. Choi Wai Ling, who is the sister of Choi Mui Ling, said that she was present at the dispute and that when she left the restaurant she saw two people holding sharp weapons rushing out. She identified D2 as one of them. She recognised him in court and she said that she identified him at the identification parade in July 1990. Her evidence was also accepted by the trial judge as being that of a witness of truth.

14. The next witness was Wong Shuk Lan, who was a waitress in the restaurant on the night. She said she was present when the quarrel took place and that she summoned the manager in order to have it stopped. She said that she saw two men rushing from the kitchen after the incident in the restaurant, armed with knives, and she could recognise both of them if she saw them again. She said that she recognised D2 as one of the men but that she did not see the other person in court. She said that she had been to the identification parade in May 1989 where she identified a man as "one of the customers at Table 10". Earlier in her evidence she said that the argument had been between the customers at table 17 and table 10. There was therefore a clear link between the customers at table 10 and the persons who came out from the kitchen with knives. Again, however, in the absence of any evidence from the officer who conducted the May 1989 parade there was no evidence that the person she had identified at that parade was either of the applicants. She could only recognise one of them, D2, as being in court and there was no evidence that he was at the earlier identification parade. However in his findings the trial judge said that she had identified D1 at the first identification parade. There was no evidence to justify that finding.

15. Evidence was given by the cook at the restaurant who said that he saw two men rushing to his kitchen, grab knives and leave. He could not identify either of them. The only other witness as to identification was Lee Ka Tung who was the barman in the restaurant. He said that he heard the quarrel that occurred between the person at table 10 and 17 and he said that one of the people at table 10 had said "I am a police". He also attended the identification parade on the 10th May 1989 and he picked out a person at that parade as being the one who claimed to be police. However he could not identify that person in court. Again, therefore, there was no link between the person identified by this witness at the earlier identification parade and either of the applicants. The trial judge said of this evidence "PW10 the bar tender - I accept his evidence. He saw clearly what happened from the bar. He saw them got up and went into the kitchen. He saw them in the kitchen and saw them grabbing hold of knives and then rushed out of the kitchen. He identified D1 during the identification parade." There was no evidence upon which he could come to that finding in respect of D1.

16. We are satisfied that in the absence of evidence as to the holding of the first identification parade there was no basis for the trial judge's finding in respect of three of the witnesses that they had identified D1 at that parade. The conviction of D1 cannot stand and his application for leave to appeal against conviction is allowed, the appeal allowed, the convictions quashed and the sentences set aside.

17. The evidence that was given as to the holding of the second identification parade was from Chief Inspector Boyton. He said that he did not take any part in the investigation of the incident but he conducted the parade at Tsuen Wan Police Station. He said that D2 was on the parade. He made notes in the identification parade book and he produced that book. No objection was made to the production of the parade book. Chief Inspector Boyton said that because D2 was partially bald steps were made to see that he did not stand out in the parade as different from the others persons who were on it. Each witness therefore wore a blue plastic shower cap.

18. It is taken here as a ground of appeal that there was no proper base for the production of the identification parade book. It does not seem to have been an agreed document and there was no legal basis for simply producing such a record.

19. It has been very common practice in Hong Kong for many years that when a witness is called who has conducted an identification parade the identification parade book is produced as an exhibit. It may well be that there should be some specific statutory provision to allow this to be done but even before s. 65 of the Criminal Procedure Ordinance allowed for evidence to be tended by agreement the book was produced rather than to have the officer simply read out from it his notes of what had occurred. Here there was no objection to the production of the identification parade book and Chief Inspector Boyton's notes had in fact been typed out for the convenience of counsel and of the trial judge. We do not consider it is now open for the applicants to raise as a ground of appeal the production of the identification parade book. That would not be the position if there had been objection; then Chief Inspector Boyton would have been able to use it only to refresh his memory.

20. So far as D2 is concerned, he was identified by three witnesses whom the trial judge accepted as being witnesses of truth. This is based on dock identification, upon which little reliance can be placed in itself, but also at the identification parade held in July 1990, some 15 months after the incident. The grounds of appeal are based on the well known dicta contained in R. v. Turnbull [1977] 1 QB 224. It was argued that the witnesses had said that the lighting conditions were not ideal, some said "dim", and that they must have only had a fleeting glimpse of the assailants outside the restaurant when the lighting conditions were even worse. It is submitted that these considerations were not seen to be fully considered by the trial judge in coming to the conclusions that he did as to whether or not he could accept the evidence of each witness. We do not consider that ground has been made out. Indeed the trial judge has considered fully the evidence of some of the witnesses and has rejected it which, from a reading of that evidence, seems to be a view which was favourable to the applicants.

21. The position as regards D2 was therefore that the trial judge had correctly held that he had been identified by three witnesses, both in court and at the July 1990 identification parade, and he had found these witnesses to be persons on whom he could rely. We have fully considered the arguments that have been put to us as to the lighting conditions and to the opportunity that these witnesses had to make the identifications they did, in the light of the dicta in R. v. Turnbull.

22. We are satisfied that the trial judge was justified in accepting the evidence and on that evidence the conviction of D2 could not be considered either unsafe or unsatisfactory. D2's application for leave to appeal against conviction is refused.

23. We will hear counsel as to the question of a re-trial of D1.