THE QUEEN v. TANG KA LOK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL N0. 130 of 1991

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BETWEEN

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JUDGMENT

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1. On 26th April, 1991 I allowed the Appellant's appeal against conviction on the ground that the admissible evidence was insufficient to establish his guilt. I undertook then to reduce my reasons to writing and I now do so.

2. The Appellant pleaded not guilty to a charge of Assault Occasioning Actual Bodily Harm. The particulars of the offence alleged that the assault occurred on 12th November; 1990 outside a factory in Ping Ha Road in the Yuen Long Area.

3. The alleged victim of the assault was TSE Ching-hung (PWl). His evidence was that at about 4 to 4:30 p.m. that day he was driving a goods vehicle in the area. He stopped at a junction in Ping Ha Road in compliance with a red traffic light signal. when he stopped, a vehicle ran into the rear of his vehicle. The record of his evidence from that point on reads as follows:-

"He came from the side, when he light changed to green. I moved forward, the private can came across and then the two vehicles came into collision.

 

We began to talk about the accident, i.e. the other driver and I. I suggested a report be made to plice. Soon after I raised that matter I was assaulted. We talked about compensation. His vehicle registration number I can't remember. After the assault I felt very faint and was taken to hospital. I now have difficulty in identifying the driver, I don't think I could recognise him now. My glasses fell to the ground and my face was covered with blood. The police arrived. After that the ambulance came and I was put on board. At the time of the assault it was vary confusing, quite a few people rushed to assault me. I covered up to ward them off. When the police came and asked me if I was assaulted I said yes. I was then in the ambulance going to the hospital. I heared they arrested the driver and I was asked if he was the one. I was very confused and in fear because of the assault. At first I thought it was an ordinary traffic accident and I told the police I thought he was one of them but I wasn't really sure.”

 

Later in his evidence-in-chief, taking up the matter again he said: -

 

"I don't think he had anyone in his vehicle. I can't remember very much except the main topic was compensation. He said how much was I going to pay him but I didn't have much money on me and he mentioned no sum. I don't know why he asked for compensation, because I considered myself not to blame. When I said I wanted to call the police, he had a very strong reaction and insisted on compensation from me. He said, how that my door is damaged, you have to compensate me for that, and I said, I'd rather call the police. He then came over to me and said, 'You ll be in trouble if you do that, you have to pay me. And after a short while, I was assaulted. I'm not sure by whom. I saw people coming in my direction and I was assaulted. I heard someone shout. 'Go, get him, and then I was assaulted. At that moment, the driver was about (eight feet by demonstration) from me. When the driver spoke to me about compensation, we were not face to face but closer. I was wearing my glasses then and could see clearly then. From the time I alighted to the time of assault was about 15 minutes. During the negotiations the driver was not the only one talking to me. Others were coming over and asking what the matter was. At the time of negotiatings the driver was insistent that I pay compensation. I cannot how recognise the driver. I was assaulted with fists. The first one knocked my glasses off and I covered up and I was under attack. Mainly my head was hit, the left cheek underneath the eye where the glasses frame hit; also my forehead which swelled up and my nose bled. I saw about four people running towards me. It happened too fast for me to know if that included the driver.

 

4. The only other witness to give evidence on behalf of the Prosecution was one of the police officers who went to the scene to investigate the incident. He (PW2) said that he went there in uniform at about 5 p.m. On arrival he saw an ambulance about to leave. He and PC 48338 boarded the vehicle and saw PWl. When the witness gave evidence that PC 48338 had asked PW1 who assaulted him, Miss Yip. who appeared for the Appellant both here and below, objected to the evidence as hearsay being evidence of a conversation in the absence of the defendant. The learned magistrate ruled that the evidence was admissible and referred to R. v. Nye v. Loan (66 Cr. App. R. 252) as authority supporting the admissibility of the evidence. The evidence admitted was that PW1 said, in reply to PC 48338's question; that "there was a collision and then he was assaulted and he said that the driver one of them”. PW2 said that he subsequently found the Appellant "who admitted to being the driver of the private car". In cross-examination PW2 said that, as far as knew . What PW1 said, in answer to PC 48338 s question, was: "I was involved in an accident an while I was negotiating with the driver I was assaulted. The driver of the red private car was one of those who assaulted me .”

5. The Appellant said in evidence that he was driving the other vehicle at the time, that there was a collision but that it occurred in somewhat different circumstances from those described by PW1. He went on to give his account of how PW1 was assaulted. According to his version, he played no role which would have made him criminally responsible for the assault. I do not repeat his version because the learned magistrate called him a liar at the time and says in his Statement of Findings that he did not believe him.

6. The learnea magistrate's reasons for convicting the Appellant are contained in his Statement of Findings dated 14th January, 1991 and in his "Supplementary Statement of Findings" dated 28th January, 1991. In his Statement of Findings he said:-

“.... [PW1] told me how his vehicle and another vehicle had come into contact with each other, and how he and the driver had an altercation, and that others had come, and they had assaulted him severely.

 

He explained, lamely, that because his glasses had been knocked off he could not now recognise the other driver as one of his assailants in court.

 

Upon that, tne Prosecution call [PW2]. The appellant took objection to his being called on the issue of identification, but I, following Nye & Loan 1977, 66 Cr. App. 252 admitted his evidence of the witness's identification of the appellant as the one who, with otners, had assaulted him. (The appellant himself having admitted being the other driver to the Police Constable).

 

As in that case itself, I was quite sure that it had been a spontaneous identification, with no opportunity for concoction, and despite the number of assailants, I ruled out the chance of error. A man knows who his principal assailant is, and will make no mistake in circumstances such as obtained here....”

 

In his "supplementary Statement of Findings" he said": -

 

“... I do not think I have made it sufficiently clear that I rejected the victims watered-down version of what was said by him to the investigating Police Constable, anu that on the contrary I accepted the Police Constable's account of their conversation as truthful and accurate.”

 

7. The evidence set out above demonstrates that the Appellant was convicted on evidence containing these features:-

8. Is R.v Nye & loan a philosphers stone capable of transumuting evidence of that quality into evidence establishing proof of identification beyond reasonable doubt?

9. The facts in that case were that Loan was travelling in a venicle which ran into the rear or the complainant's vehicle after the complainant had suddenly braked. Both the complainant and Loan alignted and Loan assaulted the complainant, knocking off his spectucles and "causing a good deal of blood to be spilt". A crowd gathered. The complainant asked a member of the crowd to call the police. The police station was only a few yards away. Police officers were quickly at the scene. The complainant was then sitting in his car "sowewhat shaken". One of the police officers took the compainant to the car benind in which Nye & Loan were then seated. In the presence and hearing of Loan and with the crowd still looking on the complainant was asked what had happened. Pointing at Loan he said: “That man hit me in the face.” Nye and Loan were charged and convicted. The court of Appeal held that "having regard to the tests set out in Ratten, v. R [1972] A C 378 the evidence of identification of Loan was admissible as part of the res gestae"

10. So Nye ye & Loan is not the authority which enunciates the tests for admissibility in res gestae cases. It is an example of how to apply the tests spelt out in Ratten. Is the stone to be found in Ratten?

11. The facts in Ratten were that the defendant charged with murdering his wife by shooting claimed that the gun had gone off accidentally whilst he was cleaning it. An operator at the telephone exchange gave evidence that minutes before the time at which the shooting was proved to have taken place she answered a call from the defendant's home. The caller was a woman who sounded hysterical and who said: 'Get me the police please." Before the operator could connect her to the police station the caller hung up. The defendant claimed that the only call from his home at that time was one made by him to call for an ambulance. The Privy Council held that the evidence was admissible as evidence relevant to two issues one of which was the truth of the defendant's statement that the only call made was his for an ambulance. Although finding that because the evidence was relevant to two issues it was not nearsay the Privy Council in dealing with a submission that the jury may have regarded the evidence as an assertion by the deceased that she was being attacked by her husband examined the evidence on the assumption that it was hearsay. Loru Wilberferce giving the opinion of the Judicial Committee said at pp. 388 90:

"The expression 'res gesbae' like any Latin phrases; is often used to cover situations insufficiantly analysed in clear English terms. In the context of the law of evidence it may be used in at least three different ways:

1 .......

2 ......

3. A hearsay statement is made either by the victim of an attack or by a bystander - indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gesdae. A classical instance of this is the much debated case of Reg. v. Begingfield (1879) 14 Cox C.C. 341 and there are other instances of its application in reported cases. These tend to apply different standards and some of them carry less than conviction. The reason, why this is so, is that concentration tends to be focused upon the opaqed or at least imprecise Latin phrase rather than upon the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used and because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been victims of assault or accident. The first matter goes to weight. The person testifying to the words used is liable to cross examination: the accused person (as he could not at the time when earlier reported cases were decided) can give his own account if different. There is no such difference in kind or substance between evidence of what was said and evidence of what was done (for example between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordship opinion this should be recognised and applied directly as the relevant test, the test should be not the uncertain one whether the maxing of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa) and the differences in location being relevant factors but not taken by themselves decisive criteria. As regards statements made after the event it must be for the judge by preliminary ruling to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the posssiblility of concoction can be disregarded. Conversely if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it was to be able to construct or adapt his account he should exclude it."

 

12. Applying that principle to the facts of Ratten Lord Wilberforce said, at p. 391: -

"The way in which the statement came to be made (in a call for the police) and the tons of voice used showed intrinsically that the statement was being forced from the decrased by an overwhelming pressure of contemporary event. It carried its own stamp of spontaneity and this was endorsed by the proved time sequence and proved proximity of the deceased to the accuses with his gun.

 

13. It was that test of spontaneity which was picked up and applied in Nye. In that case, after referring to Lord Wilberforces opinion, Lawton. L.J. delivering the Judgment of the Court of Appeal said, at p. 256:

“We have to apply the opinion of Lord Wilbertorce. Was there spontaneity in this identification. It is difficult to imagine a more spontaneous identification. [The complainant] had been savagely attacked. He called for the help of the police and when police officers arrived. One of them asked what had happened [The complainant] pointed out Loan to him and alleged that Loan was thee man who had hit him. He did this in the presence of the crowd which had collectd".

 

Was there an opportunity for concoction? The interval of time was very short indeed. During part of that interval [the complainant] was sitting down in his car trying to overcome the effects of the blows which had been struck.Commonsense and experience of life tells us that in that interval he would not be thinking of concocting a case against anydoby. He would have been trying to clear his head. So we can put out of mind altogether in our judgment any possibility of concoction.

 

There is however the possibility of error .... and that, if we may put a gloss upon what Lord Wilberforce said is an additional factor to be taken into consineration. Perhaps Lord Wilberforce envisaged error in the word concocted. Was there in this case any real possibility of error?

 

... Was the evidence of identification admissibe at all? In our judgment having regard to the tests which are set out in Ratten we consider that it was. There was no opportunity here for concoction and there was no chance of an error being made.

 

The fact that the evidence is admissible is of course not conclusive of the matter, if the Court looking at the case as a whole comes to the conclusion that its weight was unsatisfactory."

 

14. That application of the Rattan rest was expressly approved by the House of Lords in R.v. Andrews [1987] A C 281. Lord Ackner in a speech with which all the other Law Lords agreed, went on to say: at pp.290-1:

 

“ .. .I .. . summarise the position which confronts the trial judge when faced in a criminal case with an application of 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 [.]

 

1. The primary question which the judge must ask himself is - can the possibliity 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 giving no real opportunity for reasoned reflection. In such a situation the judge would we entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion provided that the statement was made in conditions of approximate but not exact contemporaneity

 

3. In order for the statement to be sufficiently spontaneous it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger meachanism for the statement was still operative. The fact that statement was made in answer to a question is but one factor to consider under this heading

 

4. Quite apart from the time factor there may be special features in the case which relate to the possiblty of concoction or distortion .... The judge must be satisfied that the circumstances were such that having regard to the special feature of malice there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

 

5. As to the possibiity of error in the facts narrated in the statement if only the ordinary fallibility of human recollection is relied upon. this goes to the weight to be attached to and not to the admissibility of the statement and is therefor a matter or the jury. However, here again there may be special features that may give rise to the possibility of error.

 

Where, the trial judge has properly directed himself as to the correct approach to the evidened and there is material to entitle him to reach the conclusions which he did reach then his decision is final in the sense that it will not be interfere with on appeal.”

 

15. In my view there was insufficient material in this case to enable the learned magistrate to reach the sure conclusion which he says he did reach namely that there had been a spontaneous identification with no opportunity for concoation. The only witness who could give evidence relevant to the issue of spontaneity was PW1. The learned magistrate rejected his account of his conversation with the investigating officer in the ambulance. But with regard to PW1 s evidence of what happened between the assault and that conversation there was no evidence from any witness other than PW1. His evidence as to the sequence of events was: assault; arrival of police; arrival of ambulance; departure of ambulance for hospital; receipt of information by PW1 from an unidentified source that "they had arrested the driver"; questioning by the investigating officer regarding the identity of the assailant; PW1's statement that the ariver of the other car was one of those who assaulted him. PW1 s remarks, in those circumstances lacked that urgency of utterance which is a feature of the spontaneity which gives hearsay evidence of this type such an inbuilt guarantee of worth as testimony as to a make it admissible. This was not a case where the victim uttered his remarks to the acompaniment of an accusing finger on the first arrival of the police at the scene with a crowd of witnesses still milling around the whilst the assailant was still present as in Nye & Loan. The remarks made in the ambulance might have been proved to have been appropriately spontaneous if there had been evidence explaining why the identification had not been made on the first arrival of the police: evidence, for example that he was unconscious or dazed until he was lodged in the ambulance. If the learned magistrate is correct hearsay identifications would be admissible in practically all cases of assault resulting in bodily harm. But the requirement that admisibitiy be conditional upon spontaneity arises "because of the risk of concoction of false evidence by persons who have been victims of assault or accident" (per Lord Wilberforce supra).

16. In the absence of evidence explaining why he made no identification on the first arrival of the police. I do not see how the learned magistrate could "satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction [could] be disregarded" (per Lord Wilberforce). The primary question posed by Lord Ackner could not, therefore, be answered in favour of admissibliity. For that reason, it is not necessary to consider whether the learned magistrate paid sufficient regard to the question of malice causing distortion to the disadvantage of the Appellant. Nor is there any need to consider the question of the weight to be given to the evidence having regard to the manner in which PW1 s remarks were conveyed to the Court.

17. There was insufficient material to entitle the learned magistrate to conclude that this evidence was admissibe. He therefore wrongly rules it to be admissibe. As the admissible evidence was insufficient to support a conviction it had to be quashed. That is why I allowed the Appeal.