R. v. CHAN KWOK TUNG and Another

IN THE COURT OF APPEAL

1991, No. 482
(Criminal)

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J U D G M E N T

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Headnote : Keeping of records by a District Court Judge

Silke, V.-P.:

1. Chan Kwok Tung - "D1" - and Chan Sui Muk - "D2" - appeared for trial before His Honour Judge Kilgour on a charge sheet containing six charges. All the charges were wounding with intent contrary to section 17 of the Offences against the Person Ordinance, Cap. 212 and each named an individual who suffered wounds on 3rd July 1990 inside Wah Fu Chinese Emporium Restaurant at the ground floor of No.2 Waterfall Bay, Wah Fu Estate, Aberdeen. Each was a joint charge and each charge made reference to the two defendants being together with other persons unknown.

2. The defendants were convicted on all the charges and were sentenced to imprisonment for a period of five years on each of the charges, the sentences to run concurrently. Each sought leave to appeal against his conviction.

3. At the conclusion of the hearing we refused the applications for leave to appeal and stated that we would give our reasons later. This we now do.

4. Mr. Egan, who appeared for the applicants here but not below, filed amended perfected grounds of appeal in respect of each of them which are virtually in identical terms. He contended; (1): that the decision of the trial judge to convict was against the evidence and the weight of the evidence; (2): that the trial judge erred in law in convicting D1 and D2 on the basis of identification evidence when the person (PW1) purporting to make the identification upon which the trial judge relied had wrongly identified a third person as having been present and involved in the joint attack and that the trial judge should, therefore, have rejected this evidence of identification; (3): that the trial judge erred in law in relying upon the evidence of identification given by PW3 against D1 when the uncontradicted evidence was that in two previous witness statements made by PW3 he had failed to mention D1 as one of the attackers; and, in respect of D2, that the trial judge erred in law in placing any reliance upon the purported evidence of identification of either or both PW1 and PW6, he having found as a fact that he had reservations about the evidence of PW1 and PW6; this amounted to a failure by the trial judge to apply both the criminal onus and criminal standard of proof. (4) that there was a material irregularity during the course of the trial in that the trial judge failed to keep a proper or adequate record of the evidence which thereby deprived D1 and D2 of their right to have their convictions properly reviewed by a higher tribunal according to law, as is their constitutional right.

5. The final ground in respect of both was that the convictions were unsafe and unsatisfactory.

6. Dealing first with the matter of the keeping of the record of the evidence.

7. The transcript, which by direction was available to the court and the parties, was undoubtedly corrupt. It is unfortunate that, through some mischance, it had not been properly checked by the trial judge before it was transmitted. This was overcome by a subsequent check by the trial judge. The corrections were set out in a document entitled "Appendix to record and transcript to correct errors" sent to this court as a result of a request that the trial judge comment on the ground concerning the transcript.

8. But this ground goes further. The manner in which the evidence given by the witnesses was recorded was also brought into question by a letter written by the applicants' instructing solicitors. As a result they were asked to set out for the trial judge the specific deficiencies that concerned them so that the judge could make his comments available to everyone. This they did in a letter of 13th August 1992 stating that:

".... we now do by example rather than exhaustive and repeated reference."

9. In respect of those stated deficiencies the trial judge, on 26th August 1992, commented in respect of the ones which were specifically drawn to his attention. We have those comments before us. In the course of the hearing these were the main deficiencies relied upon by Mr. Egan. In addition four further suggested deficiencies were referred to by Mr. Egan when the court, in the course of the hearing, invited him to go further, if he could, than the general indication, quoted above, from the solicitors.

10. This ground goes further still. It was Mr. Egan's contention that the manner in which this record was kept by the trial judge was in contravention of Article 11 sub-article (4) of the Hong Kong Bill of Rights Ordinance, Cap. 383 for it violates that sub-article which reads:

"(4) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

It is suggested that, because of the deficiencies, the right had been compromised.

11. In support of this last contention he urges upon us that there is imported into the District Court Ordinance, Cap. 336, the provisions of section 79 of the Criminal Procedure Ordinance, Cap. 221 which appear under the heading "Record of proceedings" and read:

"79 (1) A record (whether by means of shorthand notes, by mechanical means or otherwise) kept in accordance with rules made under section 9, or such other record as the trial judge may direct, shall be taken of the proceedings at the trial of any person on indictment who, if convicted, is entitled or may be authorised to appeal to the Court of Appeal, and on any appeal or application for leave to appeal, a transcript of the record or any part thereof shall be made if the Registrar so directs, and furnished to the Registrar for the use of the Court of Appeal or any judge thereof, and a copy of such transcript if so made shall be furnished to any party interested on his application in accordance with such conditions as may be prescribed by rules made under section 9."

12. There are, as far as we are aware, no rules made under the provisions of section 9 other than the rules contained in the Criminal Appeal Rules, page A5, Cap. 221 stating what a shorthand writer should do and what the Registrar should subsequently do in relation to shorthand notes. This clearly applies to proceedings in the High Court, for the judges of the District Court are not afforded the luxury of a shorthand note taker.

13. He has drawn our attention particularly to the provisions of section 79 of the District Court Ordinance, which read, as far as they are material:

"79. (1) Subject to the provisions of this Ordinance and as may be prescribed, the procedure and practice for the time being in force in the High Court in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the Court; and where it is necessary for the purpose of rendering such procedure and practice conveniently applicable, 'indictment' and 'count' shall be understood to refer to 'charge sheet' and 'charge' respectively.

(2) Notwithstanding the provisions of subsection (1), none of the provisions of the Criminal Procedure Ordinance in Part I of the Second Schedule particularized shall be applied to proceedings in the Court.

(3) .....

(4) Where any provision of the Criminal Procedure Ordinance is applicable to criminal proceedings in the Court, such provision shall be read with such verbal alterations and modifications not affecting its substance as are necessary to render it conveniently applicable; and in particular, and without prejudice to the generality of the aforesaid, any such provision relating to a 'jury' or a 'verdict of a jury' shall be understood to refer to a judge and the functions of a judge as a judge of fact."

14. Part I of the Second Schedule makes no reference to section 79 of the Criminal Procedure Ordinance.

15. It is Mr. Egan's plea that all District Court proceedings should have a shorthand note taker and that, if they do not, then any transcript emanating from the District Court is in violation of Article 11(4) of the Hong Kong Bill of Rights Ordinance because it prevents the appellate court from properly reviewing a conviction. This has particular relevance to the record of cross-examination of a witness which should be recorded in question and answer form and, in effect, provide the ipsissima verba of the cross-examiner's questions and the answers of the witness. In this instant case, this has particular relevance for certain of the answers recorded did not have a preceding record of the question which it is suggested leaves the answer itself obscure and ambiguous. These were the matters drawn to the attention of the trial judge.

16. There are no rules made in respect of criminal matters in the District Court. The Criminal Appeal Rules, and in particular the rules to which we have referred relating to the "shorthand note" are clearly applicable only to the High Court. Section 79 of the Criminal Procedure Ordinance provides, as we have indicated, that a record may be by means of shorthand notes or taken by mechanical means or otherwise, it may also be "such other record" as the trial judge may direct.

17. We fully sympathise with the contention that in this electronic and technological age the provision of some form of mechanical recording in the District Court is fully warranted. The District Courts deal with a large number of criminal trials. The workload of the judges of that court is heavy. Trials are becoming more complicated. For the judges, as we apprehend most of them do, to take their own manuscript notes of the evidence is a burden which should not be placed upon them.

18. Mr. Saw drew our attention to R. v. Wong Kam Tong & Others, Criminal Appeal No. 666 of 1981 (unreported) where Sir Alan Huggins, V.P. in delivering the judgment of the court said this:

"We have had occasion before to make observations on the keeping of a note of evidence. The importance of such a note where appeals are by way of rehearing upon the papers cannot be over-emphasized. At the same time we have recognised the difficulty of taking a full note and that it is enough that the substance of the evidence should be recorded. Here the parts under question were recorded in question and answer form and we have said that where a note is taken in that form this court should be entitled to assume that the ipsissima verba of the witness have been taken down. We have some doubt whether either the original or the suggested version of the record does in truth represent the ipsissima verba."

19. There is another school of thought which suggests that it is advantageous to have both the questions and the answers so that one can be understood in the context of the other. But we fully appreciate that neither is likely to be the ipsissima verba of either the cross-examiner or the witness given the difficulties that are inherent in the keeping of manuscript notes.

20. We were also reminded of that which Sir Denys Roberts, C.J. said in R. v. Lee Yat Lung & Others, Criminal Appeal 210 of 1982 (unreported) at page 4:

" Where the official record of a trial consists of a hand-written note kept by the judge, it is inevitable that there will, from time to time, be mistakes and omissions, as there are equally likely to be in any note kept by counsel. What, therefore, is this court to do when counsel challenges the record provided by the judge?

Unless the dispute is itself to be the subject of a trial, at which evidence is to be given by counsel and the judge, which would surely be inappropriate, there seems to us to be no alternative, as a general rule in cases of conflict of this kind, but that the version of the trial judge, who is responsible for maintaining the proper record of the proceedings, should be accepted, save only where the judge's record, or his reply to the variations put to him by counsel, suggests that his version of what happened is so inherently improbable that we should not accept it."

21. Here, the "variations" were put to the trial judge and his reply is before us. As we have indicated, other than four other minor matters, Mr. Egan was not in a position to draw to our attention any matters of substance in addition to the ones to which the judge's attention had been drawn.

22. But that having been said, given the wide drafting of section 79 of the Criminal Procedure Ordinance, and applicable as those provisions may be to the District Court, we do not think that there is any obligation in law for a shorthand note taker to record the evidence given in criminal trials in that court. It is a matter for the individual judge, provided there is available a full record of the evidence given, to direct what form a transcript shall take and, provided that the Court of Appeal has an accurate transcript and which permits the Court of Appeal to properly review proceedings in the lower court in accordance with Article 11 sub-article (4) of the Bill of Rights Ordinance, that sub-article is not violated.

23. Here the corruptions in the transcript originally provided for us have been eliminated. We accept that there were what we consider minor deficiencies in the manner in which cross-examination was recorded but any ambiguity which might be thought to exist on the face of the record has been explained away by the trial judge. We do not consider that the applicants have been disadvantaged in such a manner as to make us consider these convictions unsafe or unsatisfactory.

24. To turn now to the other grounds which can be conveniently headed: Identification.

25. It was the case for the Crown that the applicants, together with others who are not on trial, were all participants in an attack upon persons who were in the Chinese Emporium Restaurant at Wah Fu in the early hours of 3rd July 1990. It was not in issue that those who were injured received injuries which would come within the ambit of section 17. There was little doubt that the intent was to cause those individuals grievous bodily harm. As the trial judge fully appreciated, the evidence of identification as given by four of the witnesses - PW1, PW2, PW3 and PW6 - was vital for there was no other independent evidence. The defence, as presented in evidence by the applicants, was essentially one of mistaken identity and of a suggestion that the evidence implicating them was fabricated. It was said that there were old and active grudges harboured by PW1 and his family against all of them.

26. The trial judge stated that he had borne in mind the criteria concerning identification which appears in R. v. Turnbull [1977] QB 224 and directed himself that he should have those criteria in mind when considering each of the identifications. Having scrutinized the evidence of each of the witnesses in detail, he concluded his Reasons for Verdict by saying this:

"Having carefully considered all the evidence although I had reservations about the evidence of PW1 and PW6 I was satisfied beyond reasonable doubt by the evidence of PW2 and PW3. I accepted that DW1 had left Hong Kong on 1.7.90 although picked out by inter alia PW3.

I nevertheless had confidence in the identifications by PW3 of both D1 and D2 and that of PW2 on D1 and therefore did not have to rely heavily on the evidence of PW1 and PW6. I rejected the evidence of alibi of D1 and D2. I noted that they accepted they were well known to PW3. I found that this was a joint attack on all six victims with indiscriminate use of knives. I accordingly convict both Defendants on all 6 charges."

27. Mr. Egan, as is apparent from his grounds, takes issue with the reference in the passage just quoted to the judge's "reservations about the evidence of PW1 and PW6" and his statement that he "did not have to rely heavily on the evidence of PW1 and PW6".

28. These matters, together with the judge's reliance on the identification by PW3 of D1 and D2, and by PW2 of D1 only, were indicative, he suggests, of a wrong approach to this vital evidence which, at the very least, should give this court sufficient cause for concern so that it should find the convictions to be both unsafe and unsatisfactory. He emphasised that the only untainted evidence of identification of D1 is that of PW2 - untainted that is by any incorrect identification of another person. He submits that when the trial judge said he did not "have to rely heavily" on the evidence given by PW1 and PW6 he was in effect watering down the burden of proof. If the trial judge had appreciated this then it might well be that he would not have come to the conclusions he did.

29. In our judgment, the trial judge was fully aware of both the importance of the identification evidence and its deficiencies. He relied - and he was the hearing and seeing judge - on PW3 as a witness of the truth, despite his deficiencies, in relation to his identification of both D1 and D2. He accepted the truthfulness of the evidence given and the correctness of the identification by PW2 of D1. He was doubtful, as is clear from his Reasons for Verdict, of the strength of the identification evidence given by PW1 and PW6 though he was - as indeed he did - entitled to bear that evidence in mind in coming to his conclusions. It is clear from those conclusions that had the identification evidence of PW1 and PW6 stood alone it is unlikely that he would have come to a conclusion of guilt.

30. For these reasons we refused the application.