THE QUEEN v. YAU CHI-CHEONG

__________

JUDGMENT

__________

Cons, J.A. delivered the judgment of the Court:

1. This is an appeal from a conviction for possession of an offensive weapon, that weapon being a 5" ice pick which was said  to have been found in the right-hand hip pocket of the jeans of the defendant when he was arrested on other charges. The explanation said to have been given at the time was that he had it for his personal use. That was on the night of the taxi riots, i.e. Friday the 13th of January this year. The defendant was arrested at 11:50 p.m. in Tung Choi Street near the old Sincere Store.

2. Nine grounds of appeal have been filed.  They really all come to the same thing, that is, taking the case as a whole the judge's decision was inconsistent within itself.

3. The case, as a whole, involved other defendants and other charges. All told there were three defendants, all were charged with riot, all were charged with unlawful assembly and all were charged with resisting arrest. The charges of resisting arrest were naturally several. Evidence was given by three police officers.

4. Apart from the charge of possession of an offensive weapon, all the defendants were acquitted on all  the charges on a submission of no case to answer, that is to say the judge took the view that no reasonable judge or jury could have convicted on the evidence as it then stood. From that view it is then argued that it must be inconsistent to convict of a further offence which was equally dependent upon the word of one of those police officers.

5. At first glance the argument appears to have force, but it is necessary to read the judgment carefully, for in that judgment the judge sets out in full detail why he came to his decision of no case, and why he believed the constable in the other respect.  It was this.

6. The day following the arrests each of the officers concerned, together with one other officer who was not before the court, reduced into writing what they had seen on the night before. With the exception of one possible reference to something that is said to be "P2", there is nothing in the record itself to show that those statements were ever before the court and they were certainly not made exhibits. But it is certain that somehow or other, the judge did see those statements. He said he was struck by the similarity between them;  he found that the structure of the paragraphs was virtually identical; so also were the sequences of events, the times, the distances and the actual descriptions of events.  He came to  the conclusion, as he put it:

"I was satisfied that three police officers had not told the truth about the way in which they had come to make their witness statements. I was satisfied that they had somehow collaborated in the making of these statements, whereas they specifically denied any such collaboration."

He took the view that one of them had prepared an original statement and that the others had used that to make their own.  It seemed to him that as a result the officers had not written down a full and accurate account of what they had seen, but only "more or less", and had adopted observations of fact that were not in each case their own.

7. The evidence that the officers gave in court was not exactly in accordance with the written statements, although the differences were on matters which, as the judge put it, "were arguably less conclusive".  But added to this, as the judge pointed out, there was no supporting evidence and that on the night in question there had  been chaos and confusion, with the attendant possibility of error and mistake.  It was for that reason that he thought the evidence of the three officers in those respect was "manifestly unreliable" and he acquitted the defendants at that stage.

8. However, no question of error or mistake can arise with regard to the ice pick.   Either it was found on the defendant that night, as the arresting officer said, or, as the defendant said in his evidence, it was produced by a completely different officer the next day at the police station.

9. The defendant gave evidence in his own defence.  His evidence included various allegations of substantial beatings by the police.  The judge rejected his evidence totally.  On the other hand, he believed the arresting officer as far as the ice pick was concerned.  He acknowledged that the officer had  lied to him on another point but he was satisfied that the officer was not party to any frame up the defendant.   He pointed out earlier that there would seem to be no motive for adding possession of the ice pick to the other charges which could very easily be made out. As to the reason for dishonesty he said this:

"The failure by these police officers to tell the truth about those matters which I have referred to, was, in my opinion, less than sinister. It revealed to me no dishonest intention to falsely incriminate or innocent bystanders. Rather it was yet another example of police officers inexplicably being under the impression that it was wrong to collaborate, and therefore feeling obliged to deny such collaboration in the face of strong if not overwhelming evidence to the contrary."

10. Whether or not the ice pick was in the pocket of the defendant at the time of his arrest was a matter of fact peculiarly for the judge. This court would normally only be justified in interfering if there were some principle that if a witness lies about one matter then he must necessarily lie about others. Yet there is no such principle, and we would not interfere in this case were it not for one consideration, that is, that there can likewise be no possibility or error or mistake with regard to the resisting arrest. Either the defendant did resist arrest or he did not.

11. We have now had the advantage of seeing the statements that were before the judge. Fortunately counsel who appears for the Crown had them in his file and has been kind enough to provide us with copies. It is clear from those statements that there can have been no collaboration with regard to the resisting of arrest aspect of the case. There is no question-of one writing up what happened and the others merely following suit.   The reason then for the judge's excusing the dishonesty of the constable, - if we may use that phrase as a convenient precis of his reasons for nevertheless believing the constable on this point, - disappears. The judge must therefore have taken the constable in this respect as being simply, or for some other reason, untruthful.

12. We think it probable that that was not really the case and that the judge, in attempting to give the defendants every benefit that he could from the folllish dischonesty of the police, overlooked the implications of dismissing the charge of resisting arrest at that stage. Be that as it may, the resisting of arrest  and the carrying of the ice pick, although in one sense unrelated crimes, are on the facts so colosely connected that we feel this latent inconsistency is sufficient in the circumstances to render the conviction unsatisfactory. For this reason, we allow the application for leave to appeal, treat the application as the appeal Itself and quash the conviction and the sentence that visa passed thereon.