CACC000236/1986
Headnote
Introduction of new evidence after jury has retired - new evidence in the form of an Identification Parade Book - contents add nothing to oral evidence on identification parade.
IN THE COURT OF APPEAL
1986, No. 236
BETWEEN
THE QUEEN
Respondent
AND
FAN PING-SUN
Appellant
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Coram: Yang, J.A., Power & Penlington, JJ.
Dates of hearing: 12 June and 10 July 1986
Date of delivery of judgment: 10 July 1986
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JUDGMENT
___________
Yang, J.A.:
1. This is an appeal referred by His Excellency the Governor pursuant to Section 83P of the Criminal Procedure Ordinance.
2. The issue which this Court is called upon to decide falls within a very narrow compass. After the jury had retired, an Identification Parade Book was, for the first time, given to them upon their request and by agreement of counsel for the prosecution as well as the defence. The Chief Inspector in charge of the Parade made a record of the event in the Identification Parade Book and effectively read it out when giving evidence, but the book itself was not produced in Court during the trial. It should be noted however that defence counsel had the opportunity to examine the book and referred to certain pages in his cross-examination of the Inspector.
3. In order to understand fully what transpired between the learned judge, the foreman of the jury, counsel for the prosecution Mr. Hagon and counsel for the defence Mr. Leung, it is necessary to quote the Court record on this part of the proceedings in full:
"Accused present. Appearances as before. JURY PRESENT.
COURT:
Members of the jury, I understand from the usher that you would like to see the identification parade book. Let me say at once that I have seen counsel in chambers and Mr. Hagon, for the Crown, would only be too delighted that you see the book, and indeed Mr. Leung wants you to see the book.
The problem is this, that - it is a legal, teechnical problem - and that is that this book is not an exhibit. It has never been exhibited. It is simply a record kept by the officer in charge of the parade and he used it in court to refresh his memory.
I am wondering just how necessary it is that you see this book. Is there any question you would like to put to me about this book and perhaps we can resolve it without your having to even examine it?
FOREMAN:
We want to make sure of the circumstances, where the statements were made by the 1st accused at the parade. Not only the content but also the circumstances in which that statement ...
COURT:
I wonder whether the parade book can help you because I think - my impression is that the chief inspector more or less referred to it throughout, he more or less read from it, so I do not really know whether the parade book can help you there.
MR. HAGON:
I think all the parade book would do is show the sequence of events taking place, when words were spoken, was it before an I.D. or after an I.D. I think that's probably what you're getting at.
FOREMAN:
Right. Also the content, the exact content.
COURT:
Have you got that book in front of you?
MR. HAGON:
Yes, the book is here. My Lord, it's agreed - and certainly no one's hiding anything, members of the jury. It's ...
COURT:
You see, if Mr. Leung doesn't object possibly this could be just simply read to you.
MR. HAGON:
Would that assist you, members of the jury, if I read ...
COURT:
Would you object to that, Mr. Leung?
MR. LEUNG:
My Lord, I am wondering whether the Crown and I, on behalf of the defence, could agree that this book be made an exhibit?
COURT:
Well, there's no reason why you can't agree to that.
MR. HAGON:
No, there is none at all.
COURT:
If that's what you want let it be made an exhibit.
MR. LEUNG:
Let it be made an exhibit.
COURT:
Although this practice has been disapproved of in that case I referred to in chambers.
MR. HAGON:
I think where both the Crown and the defence are only too anxious that this book - there's nothing to hide, of course there isn't - I can read it and the jury ...
COURT:
The book will contain ...
MR. HAGON:
Perhaps it would be easier if I simply read it, my Lord.
COURT:
You see, if one gives the book to the jury, it could contain matters which have no relevance whatever to this particular case. I really think it might be better if one reads the particular entry.
MR. HAGON:
If I read this over slowly, would that be of assistance to you, members of the jury? You certainly can see it, by all means.
MR. FOREMAN:
My fellow jurors would like to examine the book ourselves.
COURT:
To examine the book.
MR. LEUNG:
I have no objection.
MR. HAGON:
I have no objection. By consent ...
COURT:
By consent let it be agreed evidence.
COURT:
By consent let the whole book go before them.
MR. HAGON:
Indeed, yes. Well, the whole book - may I say from page 82 to the very end, which is the last one in the book, 105. In fact, you will see, members it starts with a white page stuck on.
COURT:
Can we take it though...
MR. HAGON:
There are two of those.
COURT:
Can we take it there's nothing before page 82 which has any connection with this case?
MR. HAGON:
No, it's - nothing at all, my Lord.
COURT:
Well, in that case let the book go in as an agreed exhibit. Well, there we are, members of the jury."
4. We have called for the Identification Parade Book as well as a transcript of the Chief Inspector's evidence. It is clear from a comparison of these documents that the production of the book to the jury added nothing to what the inspector had said in evidence. There was therefore no fresh evidence placed before the jury after their retirement. The Identification Parade Book could not possibly have affected the jury's consideration of the issue of identification.
5. A number of English authorities were cited to us. Clearly, in England, there is a strict rule that evidence should not be received after the completion of summing-up: Corless (1972) 56 Crim. App. Rep. 341, at 344. In Nixon (1968) 52 Crim. App. Rep. 218, however, the Court was prepared to apply the proviso. The headnote of that case reads:
" After the jury had retired to consider their verdict, they were allowed by the judge to inspect a motor car referred to in the indictment. There was no issue relating to the identification of the car and the inspection was made with the express consent and at the express wish of the defence.
Held, that although the inspection of the car by the jury after they had retired to consider their verdict was an irregularity in procedure, in view of the above-mentioned facts no miscarriage of justice had occurred, and the Court would apply the proviso to section 4(1) of the Criminal Appeal Act 1907 and affirm the convictions."
6. Nixon was explained by this Court in Hui Kay-yuen v. The Queen (1982) No. 219 Criminal, where McMullin, V-P, said (at p.8):
" Applying the proviso the Court of Appeal stressed the strictness of the rule concerning the admission of fresh evidence after the retirement of the jury but took the view that in the case before them it was not a question of producing fresh evidence but merely of apprising themselves of the nature of something which had already been identified to them."
7. This is precisely the situation in the present case.
8. Our attention has been directed to the Australian case of Dryburgh v. The Queen (1961) 105 C.L.R. 532 where the question whether there is an absolute rule prohibiting further evidence (save perhaps at the instance or by consent of the accused) after the summing-up his evidence was left open (see also R . v. Bodi (1969) V.R. 36). The position in Hong Kong is not entirely clear. The difference between the English and Australian approach was not drawn to this Court's attention in the Hui Kay-yuen Case , and on the particular facts of that case, the question did not call for a decision.
9. We do not think that, for the purpose of this appeal, it is necessary for us to decide whether or not we should adopt the English or the Australian approach in Hong Kong. Indeed we did not hear full arguments on this question, for even if the strict rule were accepted, the proper course for us to take would be to apply the proviso, as in Nixon's Case (supra). There was in our judgment no miscarriage of justice in the circumstances of this case.
10. For the reasons stated above, the appeal is dismissed.
T.L. Yang
Representation:
Mr. G. Plowman (Munro & Claypole) for Applicant
Mr. A.S. Hodge for D.P.P./Respondent