THE QUEEN v. TAM CHI KWAN

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Tam Chi Kwan, D1, - "the applicant" - and Chau Chi Ming, D2, appeared for trial before Mr. Ian Candy, sitting as a Deputy Judge of the District Court, on a charge sheet containing two charges. The first was a joint charge of affray said to have taken place on 10th October 1989 at the junction of Woosung Street and Saigon Street, Kowloon. The second charge related only to D2 and alleged the possession of an offensive weapon in a public place on the same date and in the same general area.

2. Both were convicted and both originally sought leave to appeal against those convictions.  D2 abandoned his application so that we are now concerned only with the applicant.

3. The case for the prosecution was based mainly on the evidence of DPC459 who was on duty in plain clothes in the general area of Woosung Street. There was no dispute that an affray had taken place there but it was the applicant's defence that he was a mere innocent bystander. He called into question the evidence given by DPC459 of his actions and denied being a participant in the affray.

4. DPC459 said that, when he reached the junction of Pak Hoi Street and Woosung Street, he saw persons running into Pak Hoi Street and then into Nathan Road. He was accompanied by Sergeant 10540 who told hiirv to go to Woosung Street to see what was going on. He went there and at the junction of Woosung street with Saigon Street he saw many people running. It was very noisy.  He saw four males running towards him, all of whom were bleeding, with another four to five persons, holding wooden poles and chairs, following them.

5. He shouted "Police. Stop." and some of the persons ran back the way they had come, others went in a different direction. The constable stood at the junction and, in Saigon street between Woosung Street and Temple Street, he saw a man to his left sitting on the ground outside a drug store. That man was bleeding.  The constable was about 25 feet away at that point and saw another man standing in front of the man on the pavement. The latter raised a folding stool with both hands and struck the sitting man with it. The striker was identified as the applicant.

6. The constable shouted "Police, stop" for the second time but the applicant ignored him and struck three. more times at the roan on the ground. The constable then shouted "Don't hit anymore or I'll shoot". He was again ignored and, having drawn his revolver, he aimed at the applicant's leg and fired once. This was between the third and the final striking of the man on the ground. The constable then fired a second shot whereupon the stool, as he put it, "flew off the hands of the applicant" and the applicant fell. The applicant had been shot in the backside. He was subsequently taken to hospital where, at 3:10 p.m. on 11th October, he made an exculpatory statement under caution to an investigating police officer.

7. Mr. Matthews, who appeared for the applicant both here and below, as well as he rolled up ground of unsafe and unsatisfactory has submitted first: that the trial judge erred in law in that he failed to give any proper consideration to the cautioned statement of the applicant; second: that the trial judge failed to properly consider and draw the proper inferences from discrepancies as to what words were actually used by the police constable in giving the warnings he did; third: that the trial judge failed to give any or any sufficient weight to the evidence of an independent witness, DW2, Shuen Yan Bun.

8. It is convenient to deal with those last two grounds first.

9. We accept that the credibility of DPC459 was in issue. There were, in the course of this confused situation, differing versions as to what he actually said. It is part of the defence case that the DPC exaggerated his evidence because he was attempting to justify his firing of his revolver.

10. The trial judge in his concise Reasons for Verdict was clearly aware of this suggestion in connection with the DPC's credibility. He was aware of the differences as to what was actually said. There can be no doubt at all that a warning was given. The trial judge found DPC459 to be a witness of the truth.  We can see nothing in the transcript to which our attention has been drawn which gives us cause to think that on this aspect the trial judge's findings were in error.

11. The independent witness referred to in the third ground was in a nearby shop and, very prudently, upon hearing a commotion and shooting, lay down on the floor seeing little. That ground has not been made out.

12. We turn now to the first ground of appeal, that the judge failed to give any or any proper consideration to the cautioned statement of the Applicant.

13. The judge's only reference thereto is in these words:

 

"It's suggested that DW3's [the statement taker] evidence and record of what he said to Dl which made no mention of an allegation of hitting with a stool tends to show that no such hitting occurred. I'm satisfied that such is not the case and D1's cautioned statement is exculpatory."

14. This approach,  which at first glance is difficult to understand, is explained by the line taken by Mr. Matthews below. We quote from the note of his submission as recorded by the judge:

 

"Court may wonder why I called DW3. In preamble allegation is put. No where alleged Dl was shot while striking person with stool. Usual in Hong Kong to put allegation. If he had been seen I submit the specific allegation would have been made. It's not there."

15. No complaint is made of the judge's decision in that respect. The present approach is quite different, relying upon a passage in A.G. v. Li Siu Lam [1989] 2 HKLR 370 at 374:

 

"It is necessary for juries to be reminded, and judges sitting alone to be seen to remind themselves, in clear and careful terms of the basis upon which a self serving statement is before them and the use to which they may put it."

16. The only use to which the Applicant's statement could have been put in the present instance was to show his reaction to the police enquiries made to him in hospital the day after the accident, and as evidence of consistency: c.f. e.g. R. v. Cheung Hon Kwong and Others unreported Crim. App. 503/89 14th August 1990.

17. The basis on which the statement was before the court in Li Siu Lam was, as in R. v. Duncan [1981] 73 Crim. App. Rep. 359 and R. v. Sharp [1988] 1 W.L.R. 7, that it was a mixed statement with the defendant not giving evidence. Mr. Matthews has faintly urged that the Applicant's was such a statement, in that it admitted the Applicant's presence at the scene. But it could hardly have done otherwise, in view of his having been shot and removed from there to hospital. In any event the Applicant did give evidence.

18. The judge's reference to the exculpatory nature of the statement makes it clear that he had read and appreciated its contents which is what we had in mind in making the comment referred to us by Mr. Matthews in Li Siu Lam, which perhaps went further than was necessary. We see no reason to think that he gave them no or insufficient consideration. Nor are we persuaded that for any other reason the conviction was unsafe or unsatisfactory.

19. For these reasons the application is refused.