THE QUEEN v. LO WING CHAI

Headnote

Observations an the use of s.65C Criminal Procedure Ordinance  Cap. 221 to introduce into a trial admitted fait: the use of s.65B to tender the statements of uncalled witness in evidence.

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the court.

2. On 23rd April 1990, Lo Wing Chai was convicted after trial before Bewley J. and a jury of two counts of murder. He now seeks leave to appeal against those convictions.

3. Both these counts related to the same date and the same place, the 3rd July 1949 at Block B, 3rd floor of No. 415, Castle Peak Road, Tsuen wan. The first count related to the deceased Lee Tsai Ching and the second to the deceased Lee Shung Tai.

4. The evidence fell within a very short compass. Both those persons were found at their premises in Castle Peak Road suffering from severe and multiple chop wounds. The man was aged 83 and the woman was aged 80. They Were medically treated, brought to hospital, one being certified dead upon arrival and the other dieing shortly thereafter.

5. There was no issue at trial that the applicant had inflicted the wounds which resulted in the death of these two persons. The defence that was raised, and upon which the jury were fully directed, was that of self-defence which would, had it been successful, have resulted in an acquittal. The trial judge, and properly in the light of Lord Diplock's dicta in D.P.P. v Camplin [1978] AC 705, left to the jury the issue of provocation.

6. In the course of this application, in which Mr. Sedgwick with Miss Maggie Poon appear for the applicant, no criticism of any kind has been directed towards the summing up or the manner in which the trial judge dealt with the issues which lay for the consideration of the jury. Mr. Sedgwick freely admits that the grounds of appeal which he has put before us ere entirely technical ones.

7. It is necessary for the understanding of them to set them out in full :  The first ground is that the document entitled "Agreement Pursuant to S65C of the Criminal Procedure Ordinance Cap. 221" which was permitted to be introduced in the trial by the learned Judge as proof of the facts set out therein "was not an admission of the facts set therein by the Appellant and was not proof of the facts set out therein and was not evidence of those facts upon which the jury could or should have acted."

8. The second ground, and this related to certain individual items which were referred to in the document put in under the provisions of section 65C, such as a film, the photographs, the wrist watch and the bank statement - that is not an exhaustive list - "were not properly and sufficiently identified in the Agreement. Further there is and was no rule of law of evidence by which the said articles could be produced by agreement as Exhibits at the trial."

9. Ground 3 relates to the introduction into evidence of written statements of two medical witnesses read out to the jury and it reads:

"As part of the prosecution case, the learned prosecutor (at page 152 of the transcript) 'read into the record under section 65B of the Criminal Procedure Ordinance' a statement of Dr. IP Choi-sang and a statement of Dr. LEE Wai-ming. The mode by which the learned prosecutor 'read' these statements 'into the record' was one unknown to law and the said statements were not admissible under section 65B of the Criminal Ordinance because: -

 

10. Ground 4 is a roll-up ground which states that because of the material irregularities referred to in grounds l, 2 and 3 the applicant "did not have a trial properly conducted according to law."

11. At the commencement of the trial, that is after the arraignment of the applicant, there was a discussion between the judge and counsel as to the time it was necessary to take to provide a statement of agreed facts. There was an adjournment so that counsel could put their heads together to produce a document. When the jury were empaneled and the trial commenced, counsel then appearing for the Crown, Mr. Chandler, read into, if I may use that phrase, his opening address that statement of agreed facts and he told the jury:

"It is a conclusive document and his Lordship will tell you later in the trial that you will accept everything which is contained in it as having been proven."

12. Mr. Sceats who appeared for the applicant at trial, having signed the document on behalf of the applicant, made no objection to this method of its introduction. The document, as indicated, is headed "Agreement Pursuant to S65 of the Criminal Procedure Ordinance Cap. 221" and commences: "It has been agreed for "And on behalf of the accused Lo Wing Chai and the Crown as represented by their respective counsel as follows ..." It then goes on to enumerate various facts including a fact that the accused was solely responsible for inflicting the injuries which resulted in the deaths of Lee Shung Tai and Lee Tsai Ching on 3rd July 1989. It made reference to film, photographs, injuries which were found on the two deceased, a video/audio reconstruction, a sketch plan and items such as a wooden rod, a chopper, a ring and pendant and a bank note. It also made reference to shoes, a T-shirt, a wrist watch and a savings account in the Hong Kong Shanghai Banking Corporation. It ended with reference to the scientific examination of the premises on 3rd floor at Castle Peak Road.

13. It was Mr. Sedgwick's main contention that nowhere in this agreement is the word "admit" used, reference being to all these matters as "agreed" facts. Therefore the document should not have been before the court within the terms of s.65C.

14. There is no suggestion that counsel at trial did not know what they we are doing nor is there any suggestion that Mr. Sceats lacked instructions. As we have indicated, there was considerable time taken in order to draft this document and it clearly saved a good deal of time at the ensuing trial. Again, no objections were raised at any time by Mr. Sceats as to the course that the trial took in relation to these matters.

15. Section 65C itself reads:

"65C. (1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.

16. Subsection (2) provides that such an admission may be made before or during the proceedings. If it is made otherwise than in open court,  it must be in writing and, relevant here, if it is made on behalf of a defendant it shall be made by his counsel or solicitor. Subsection (4) provides that admissions under this section may, with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or at any subsequent criminal proceedings relating to the same matter.

17. It is clear that this section is an enabling section for the prosecutor or the defendant to admit facts, thus avoiding the production of formal proof in the course of the trial. There is, as we have indicated, a discretion in the trial judge at a later stage of the proceedings to give leave to withdraw such admission.

18. It is, with respect to Mr. Sedgwick's point, quite clear within the context of section 65C that if you do agree facts then you must be taken to have admitted them. It is perhaps preferable were the word "admitted" to appear in the formal document to avoid any possible doubts on the matte being raised at a later stage. But that is not essential, the whole purpose of this procedure is to avoid the necessity for the prolongation of a trial by unnecessary formal proof.

19. In this case here the only issue that lay for the consideration of the jury was: Did the applicant act in self-defence in causing these deaths or were they to consider a verdict of manslaughter on the basis of provocation. Mr. Sedgwick's point is unsustainable.

20. In the course of drafting agreements of this nature care must be taken and it is certainly preferable, and we would accept this, that, if specific exhibits are referred to, then they bear specific exhibit numbers. But their absence in this document in no way reduces its effect. Clearly, it is of assistance both to the court, and to the jury when they come to consider the contents of an agreed document, to be able to co-relate the matters contained in it with any exhibits which are produced. It would help the jury when they come to their deliberations to be in a position so to do.

21. Here, it made not one whit of difference that that assistance was not in full available to the jury.

22. There was a production en masse of all the exhibits referred at the close of the prosecution case. They subsequently were marked in the exhibit list of the trial itself. They do not seem, at the time of their immediate production, to have been so particularly identified.

23. Although it may be that in this case it would have been a counsel of perfection, it is advisable for the court at the time of a mass production of this kind to ensure that each exhibit there and then has a specific exhibit number whether that be the original number at committal or not.

24. The expression "read into the record" appears to be an Americanism which is creeping into trials in this territory and which has no particular meaning. What had happened in relation to the two statements of the two doctors - and it is emphasised that they were in no way controversial - was that Mr. Chandler informed the judge that two statements were to be "read into the record" under the provisions of section 65B of the Criminal Procedure Ordinance and informed the judge and jury what they were. He then explained very shortly to the jury what he was doing. He said this:

"Where there's no dispute in respect of the witness's evidence, in order to avoid calling the witness, in this case a doctor, a busy person, his statement is read into the record, and again it is evidence in the case subject to what his Lordship have (sic) to say."

 

25. The proper expression is "tendered in evidence".

26. He then informed the jury what Dr. Yip, had he given evidence, would have said, reading the statement. Dr. Lee's statement was dealt with in the same way.

27. Section 65B reads:

"65B.     (1)   In any criminal proceedings, other than committal proceedings, a written statement by any person shall, subject to the conditions contained in subsection (2), be admissible as evidence to the like extent as oral evidence to the like effect by that person."

 

28. It is clear that both of these witnesses could have given oral evidence to the like effect in respect of the contents of their statements. Subsection (2) goes on:

                "(2)  A  statement may be tendered in evidence under subsection (1) if -

29. At the time of these statements were "read into the record", it is correct that the trial judge made no formal order that they be admitted. Equally he made no formal enquiry of counsel for the defence as to whether he admitted them on behalf of his lay client or whether the provisions of section 65B (2) had been complied with. But, given the measure of agreement which there was in this particular case, the silence of counsel is clearly an acceptance of the necessary compliance with the provisions of subsection (2). The "Agreed" facts under section 65C had already contained admissions by the applicant of both salient and peripheral facts. It is not suggested that any of these items were controversial.

30. It might be preferable if in the future that at the time of the tendering in evidence of statements of this nature under the provisions of section 65B if there were to be a formal question by the trial judge of counsel for the defence as to whether he raised any objections and that that appears on the record. That this was not done here, if it can be called a criticism at all, is the only matter which needs to be referred to in relation to ground 3.

31. We do not consider that any of these matters were irregularities and certainly not material ones. Had we been of mind that they were which, as I have said, we are not, we would have unhesitatingly applied the proviso. The evidence here was overwhelming. The applicant had, as a matter of greed and in order to avoid identification, killed these two old people whose premises he ransacked. The jury were perfectly entitled to reject the defence of self-defence, which was first raised in somewhat oblique manner in statements made to the police by the applicant, and they were equally well entitled to reject the issue of provocation, which the trial judge had left to them, on the subjective test which lay for their consideration.

32. There were matters of law raised in this application. We would give leave, treat the hearing of the application as the hearing of the appeal but dismiss the appeal.