LAM HO KEI v. R.

IN THE COURT OF APPEAL

1995, No. 273
(Criminal)

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REASONS FOR JUDGMENT

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Nazareth, V.-P. (giving the reasons of the Court) :

1. The applicant, Lam Hon-kei, was convicted by His Honour Judge Lugar-Mawson in the District Court on 16th March 1995 of an offence of wounding with intent to cause grievous bodily harm contrary to s.17 of the Offences against the Person Ordinance, Cap.212. On 30th March 1995 he was sentenced to 6 1/2 years imprisonment. He appealed against conviction, and having heard the submissions of counsel on 4th June 1996, we dismissed the appeal and now give our reasons.

2. The victim, Chow On, was attacked by two men, each armed with a knife, inside the Oi Kwan Restaurant about 6.45 pm on 23rd February 1994. Chow sustained severe injuries to his arms, shoulders and hands, and lost an index finger in the attack. The sole evidence that the applicant was one of the two men who attacked the victim came from PW2, Cheung Wai-man. His evidence was that he was just outside the Oi Kwan Restaurant, talking to one Suen Wai-keung, when his attention was attracted by the commotion in the Oi Kwan Restaurant. He witnessed the attack and the attackers flee the restaurant. They passed by him and Suen. He and Suen gave chase, he being the faster. He pursued the attackers, down to a flight of stairs where they separated. There he continued to pursue one of them who ran down Shek Lei Street. He saw the man fling the knife he was carrying and saw it fall onto a concrete slope at the side of the pavement. He continued to pursue the man round a right-hand turn and eventually caught him in the road outside the Tak Mun Lau Restaurant. He held him down until the police arrived shortly after. He testified that he had never lost sight of the man he was pursuing throughout the chase. To start with, the man was only about 10 feet ahead of him and throughout the chase he had slowly gained ground on him. He was not able to identify the man.

3. The issue at the trial was therefore whether the man PW2 was holding down when the police arrived was one of the two attackers who passed PW2 in fleeing the Oi Kwan Restaurant. The ancillary aspects of the Crown case were either agreed or not disputed, e.g. that the attack took place inside the Oi Kwan Restaurant at the time alleged; that Chow On sustained dreadful lacerations to his arms, shoulders and hands, and lost the index finger of his left hand indicating a clear intention of causing him grievous bodily harm; that minutes after the attack the police found the applicant being held down by PW2 and that the police recovered a blood-stained beef knife having been led to it by PW2. Nor was it disputed that PW2 was standing outside Oi Kwan Restaurant while Chow On was attacked and that he and Suen gave chase to the two men in the direction of Shek Lei Street.

4. Suen subsequently disappeared, leaving PW2 as the only witness.

5. For the applicant Mr Michael Delaney pursued the grounds of appeal under two heads. First, the accuracy of PW2's evidence that the applicant in effect was one of the two attackers; and second, the failure of the judge to give himself a "modified Turnbull direction".

Accuracy of PW2's evidence

6. In making his submission that the several aspects of this ground he touched upon showed that the conviction was unsafe and unsatisfactory, Mr Delaney first of all referred to PW2's bad character. He admitted to twelve previous convictions, involving convictions for theft, burglary and dangerous drugs offences. He also admitted that he had been a drug addict in the past. Mr Delaney submitted that as a convicted dishonest man, PW2 may well have had a disposition to lie, fabricate and concoct.

7. Mr Delaney also referred to the evidence of PW2's drug addiction. The evidence emerged in the following way. PW2, who did not deny he has formerly been a drug addict, admitted in cross-examination that on 23rd February 1994 (the day of the attack) he had taken heroin in the morning and that it was his custom, at that time, to take heroin in the morning and then to visit a methadone clinic in the afternoon or evening, and take methadone treatment there. He could not recall whether he had had methadone on the evening of the attack, just before the incident. He was then asked by counsel whether he had taken drugs before he came to court that day and answered "I am not taking drugs any more". At that point PW2 was advised by the judge of his right not to answer incriminating questions and he declined to answer further questions.

8. Mr Delaney submits that the judge was wrong in stopping the cross-examination of PW2, when PW2 could never have been prosecuted in the absence of the availability of the drugs for analysis. We are unable to accept that argument or that the judge's intervention had any possible material effect upon the judge's conclusions or the result of the trial.

9. Finally, Mr Delaney pointed to the following passage in the judge's reasons:

"Mr Crawford [Defence counsel] also commented on the manner of CHEUNG's testifying. He suggested that he gave the impression of being a man who was under the influence of drugs, as he put it, '... a man who was stoned.'

I have considered these points. I am aware of the 2nd prosecution witness, CHEUNG's, bad character. It was something which he, in fact, frankly admitted. I remind myself of the need for great caution before I accept him as a truthful and credible witness. It is correct to say that he gave evidence in a dogmatic way and in a loud voice. In fact, on many occasions I observed him dramatically demonstrating how certain events had taken place. I accept that there is a real risk that he is still a drug addict and that he may have been under the influence of drugs when testifying. I cannot, however, say that that must have been the case. These minor oddities of behaviour commented on by Mr Crawford and noticed by myself, may just be part of his character. I have to say that to my mind he gave clear and comprehensive evidence in a logical sequence. He did not appear flustered or confused. He coped with an extensive cross-examination. He was not shaken in cross-examination, nor did he seek to retract, or resile, from any part of evidence have in-chief."

10. Mr Delaney submitted first of all, although this was by no means his major submission, that in stating that "I cannot, however, say that that must have been the case" in the foregoing passage, the judge erred in reversing the proper approach, since it was for the judge to be sure that PW2 had not been under the influence of (or impaired by drugs). That we think must be right, but it is only of consequence if it had any effect upon the judge's conclusions; and, as will be seen, it did not.

11. Mr Delaney also submitted that it is apparent from the foregoing passage, the judge was alerted to PW2's impaired capacity to give evidence during the trial. But, he submits, the judge failed to address the matter and to seek expert medical evidence thereon. He points to the following passage in para.8-37 of Archbold 1995 Vol. 1:

"... in ... Toohey v. Metropolitan Police Commissioner [1965] AC 595, H.L. ... it was decided that medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. A judge who has admitted a witness as competent to give evidence, but upon proof of subsequent facts affecting the capacity of the witness, and upon observation of his subsequent demeanour, changes his opinion with regard to the competency of the witness, may stop the examination, and direct the jury to consider the case exclusively upon the evidence of the other witnesses: R. v. Whitehead ..."

12. Mr Delaney pointed also to the following words of Lord Pearce in Toohey at p.608C:

"... when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them."

Undoubtedly the judge had a discretion to receive or call for medical evidence if he thought it would assist. Indeed, it is not difficult to conceive of cases in which the capacity of a witness is so suspect that the acceptability of his evidence without e.g. medical evidence has to be addressed; nothing of that sort arises here. The judge found PW2 coherent and logical and that is fully borne out by an examination of his evidence, particularly in cross-examination. No question of the competence of PW2 arises, and as to his capacity it seems plain to us from his evidence that the judge was quite right to accept, as is implicit in his judgment, that this was unimpaired. There was no failure to exercise a discretion as contended by Mr Delaney; the stage at which such discretion would have had to be exercised had simply not been reached.

13. Mr Delaney submitted furthermore that PW2 having denied that he had taken drugs at the time he gave evidence, the judge in finding that there was a real risk that PW2 was still a drug addict and might have been under the influence of drugs when testifying, must be taken as having rejected his denial in testimony. However, it seems to us that in the relevant passage of his reasons, which we have reproduced, the judge was bending over backwards to be fair to the applicant and was addressing the possibility that his acceptance of PW2's denial might be wrong. Even if that was not so and the judge rejected his claim that he had not taken drugs on the days he gave evidence, the judge was entitled to accept PW2's evidence in general and specifically that he had not lost sight of the man he was chasing, despite reservations upon PW2's specific denial.

14. It remains under the first head of grounds to refer to the following passage at p.8 of the judge's reasons:

"The discrepancies highlighted by Mr Crawford cause me no concern. They do not cause me to doubt CHEUNG's essential claim that he continuously chased one of the two men who had attacked Chow On right from the Oi Kwan Restaurant to the point of apprehension at the Tak Mun Lau Restaurant. The fact that the defendant had bloodstains on his clothing and shoes further enforces - though further enforcement is not, to my mind, required - my belief that CHEUNG chased and caught hold of one of Chow On's attackers." (Emphasis supplied)

The evidence showed that the applicant had injuries from which he bled; those were probably sustained in the struggle when he was held down. Mr Delaney accepted that the judge did not rely upon the bloodstains, but submitted that he might nevertheless, perhaps subconsciously, have derived some support from them in coming to accept PW2's evidence. He urged the court to take this into account in addressing the question of whether the conviction is safe and satisfactory.

15. We are not able to find any merit in this point. Clearly the judge was satisfied on the other evidence, and would, even without any bloodstains on his clothing, have been satisfied, that PW2 chased and caught one of the two attackers.

16. In the result, all the grounds advanced in the context of the accuracy of PW2's evidence failed.

Modified Turnbull directions

17. Mr Delaney's second general ground can be dealt with rather more shortly. He points to the following matters. The sudden attack would have meant that PW2 would not have had much time to have seen who was the attacker. Neither he nor the victim made any identification of the applicant nor gave a description of either of the attackers. PW2 was not able to plot his route by reference to the photographic exhibits. The knife was dropped in the vicinity of the steps near which the two fleeing men separated, so either of them might have dropped it. There was a right-hand bend in the route the chase took. Being in the vicinity of a housing estate and restaurants there were bound to be people about around 6.45 pm. The judge stated the essential issue was PW2's accuracy. But that nonetheless the judge finally expressed his conclusion in the following way:

"As I have said, I believe CHEUNG, the 2nd prosecution witness. As I have said, his account was coherent and logical and despite his criminal record and admitted drug addiction, I am prepared to believe him. He did not, as a witness, seek to gild the lily, he frankly admitted that he could not recognise the man he had caught hold of. It was not disputed that he had led the police to recover the discarded knife. Clearly he must have seen where that knife had been thrown. Although no evidence was led as to the distance between the Oi Kwan Restaurant and the Tak Mun Lau Restaurant, it is clear from the photographs that it is not a very long course. It is along two well lit and wide paved streets in a modern housing estate. The only turn made in the course of the chase was a clear right-hand, right angle turn from Shek Lei Street to Wai Kok Street. This is not a case of a chase through ill-lit winding back alleys."

18. The judge then concluded with the short paragraph mentioning that the defendant had bloodstains on his clothing, which has already been quoted. Mr Delaney submits that believing PW2 is not enough. The judge failed to test the accuracy of the proposed identification by reference to the essential elements of Turnbull; he should have given himself some modified form of Turnbull directions. Mr Delaney sought to derive support for that submission from the following passage in Shand v. The Queen (PC) [1996]1 WLR 67; 72G-H:

"The importance in identification cases of giving the Turnbull warning has been frequently stated and it clearly now applies to recognition as well as to pure identification cases. It is, however, accepted that no precise form of words need be used as long as the essential elements of the warning are pointed out to the jury. The cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence. In the latter type of case the judge should normally, and even in the exceptional case would be wise to, tell the jury in an appropriate form to consider whether they are satisfied that the witness was not mistaken in view of the danger of mistake referred to in Reg v. Turnbull [1977] QB 224." (Emphasis supplied)

It is not necessary to say more than that the present is not an identification case. Shand therefore does not avail the applicant. The reliance here upon Turnbull is misconceived. The necessity for a Turnbull warning stems from the vulnerability to mistake of human visual identification and recognition. In the present case it is a matter of the credibility of the evidence of PW2. During the chase, which lasted less than a minute, the distance between PW2 and the person he was chasing was about 10 feet at the start and progressively diminished. It is difficult to see how the matter could be other than one of credibility. It was suggested that the man who was chased by PW2 could have been one of the other customers of the restaurant fleeing the scene. That possibility is not consistent with the evidence of PW2. Nor does it explain the knife to which PW2 led the police; this could not have been dropped by other than one of the two attackers. Above all, the judge did remind himself of the need for great caution before he accepted PW2 as a truthful and credible witness. There plainly is no merit in this ground also.

19. For the reasons I have endeavoured to give, we had no hesitation in concluding that the appeal had to be dismissed.