THE QUEEN v. KO KAM WING

IN THE COURT OF APPEAL

No 131 of 1988

(Criminal)

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J U D G M E N T

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Kempster, J.A. :

1. On 11th February 1988 at Wan Chai District Court Ko Kam Wing was convicted by Judge Downey of wounding Lau Kwong Wai with intent to cause him grievous bodily harm on 4th July 1987 at Carpenter Road, Kowloon. Against that conviction he seeks leave to appeal.

2. On his behalf Mr Mayne has advanced a number of propositions which in substance raise issues of law. In those circumstances we think it appropriate to grant the applicant his leave and to treat this as the hearing of the substantive appeal.

3. The relevant history of the matter as disclosed in evidence showed that prior to the date when as was common ground, Lau Kwong Wai was chopped and assaulted in a manner which disclosed an intent to cause him grievous bodily harm he had been acquainted with a young woman whose favours were also granted at some stage to the appellant. As appears to be a common practice there was meeting between them, perhaps analogous to the procedure for the transfer of a football player from one club to another, to acknowledge a change in the young woman's affections and to agree upon the payment of money or money's worth. It is not a matter which we have to pursue because its only relevance is that it gave Mr Lau, the victim, an opportunity to make the acquaintance of the appellant. By 4th July 1987 they were known to each other.

4. The circumstance of the assault were described by the trial judge in these words:

"a group of people armed with knives attacked Lau Kwong Wai in the street when he was in the company of two of his friends on the way to a restaurant".

Then, referring to the medical report to which we have looked during the hearing of this appeal, the judge explained that Mr Lau sustained a number of lacerations to his forehead, upper lip, left and right thighs, and back, and abrasions on the shoulder. He went on to say that the real question for his determination was whether the Crown had satisfied him, so that he was sure, that the appellant was one of the assailants. Again, it is common ground both that at an identification parade held on 11th August 1987 the victim identified the appellant as such and that when giving evidence at trial Mr Lau was "a reluctant witness" being afraid or hesitant to point directly to the defendant as one of his assailants.

5. At the meeting relating to the young woman the appellant was introduced to the victim as "Ah Wing" and according to a police officer who came upon Mr Lau very shortly after the assault while he was still lying on the ground with his face covered in blood he had said that he had been chopped by about three persons one of whom was "Ah Wing" or an abbreviation for that name. It is submitted that this hearsay evidence of identification, which in his evidence before the court the victim denied having made, had no probative value and, in consequence, was not admissible in the sense of being a factor upon which the judge was entitled to rely in considering whether or not he was sure that the appellant was one of the assailants.

6. In this context we have been referred to a number of authorities starting with Ratten v .R⁽¹⁾. That vas a case in the Privy Council where helpful guidance was given on behalf of the Board by Lord Wilberforce. At p 391 he said in relation to authorities already cited:

"These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused".

This statement of principle Was followed by the English Court of Appeal in R v Turnbull⁽²⁾ and most recently by the House of Lords in R v Andrews⁽³⁾. The principal speech was given by Lord Ackner who, between pp 422 and 423, summarises the position faced by a trial judge when in a criminal case an application is made to him under the res gestae doctrine to admit evidence of statements with a view to establishing the truth of some fact thus narrated; such evidence being truly categorised as "hearsay evidence". Lord Ackner gave the following guidance:

"(1) The primary question which the judge must ask himself is can the possibility of concoction or distortion be disregarded?

(2) To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus given no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity".

Then Lord Ackner went on to give an explanation of the word "spontaneous", to deal with any special features that might arise and also to consider circumstances which might suggest the possibility of error in the facts narrated in the statement. These considerations appear well to have been borne in mind by Judge Downey who at the close of his Reasons for Verdict said:

"this evidence, though clearly hearsay and, as I will mention in a moment, is denied by Mr Lau, falls within the category of admissible evidence, as being part of the res gestae. It came, in my view, almost immediately after the event, in circumstances where there was really no opportunity for concocting the statement. The only question is the possibility of an error being made by the informant as to the identity of the person who chopped him. As I have said, Mr Lau said he did not say anything to the constable at the scene. I think this is either an example of his reluctance so to speak, to point the finger in these proceedings at his assailant, but more likely the fact that his recollection of what he said at the scene is impaired by the fact of his injuries".

7. Accepting the evidence of the policeman as to the victim's oral identification the judge found himself satisfied of guilt on the basis principally of the identification of the appellant at parade held in August. He found further support in the behaviour of the appellant at the identification parade where he had asked that the men lined up for inspection by the victim should wear glasses; a strange request from a man who does not himself normally wear them. It was only after the glasses had been removed by the men on the parade that the victim identified the appellant. This, in our view, was evidence of conduct from which a supporting inference of guilt might properly he drawn by analogy with resisting arrest or running from the scene of a crime.

8. In the event we feel no lurking doubt as to the safety of the appellant's conviction nor do we find that the approach of the judge to the evidence or to the matters which we have just recited can be faulted. He took into account all the factors which were prayed in aid by the deference at trial and before us. He did not, of course, have the advantage of any evidence from the appellant himself.

9. The appeal is dismissed.

(1) [1972] AC 378

(2) [1985] 80 Cr App R 104

(3) [1987] 2 WLR 413