WONG HING TONG v. R.

IN THE COURT OF APPEAL

1993, No. 45
(Criminal)

- Headnote -

Criminal Law - Extent to which counsel is required to "challenge" case presented by the opposite party - No hard-and-fact rule as to how the evidence led by the other side should be challenged - R. v. Hart [1932]23 Cr.App.R.202 at 207 considered.

Court of Appeal also considered whether the trial judge had erroneously told the jury that, on a submission of no case, he had ruled there was sufficient evidence of identification - Smith and Doe (1987)85 Cr.App.R.197 at 200 considered.

IN THE COURT OF APPEAL

1993, No. 45
(Criminal)

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. The applicant Wong Hing-tong was convicted after trial before Saied J. and a jury on one count of conspiracy to forcibly abduct a person, namely Tse Yuen-lung, with intent to procure a ransom. The offence occurred on 1 February 1992. The applicant was sentenced upon conviction to 10 years' imprisonment. He now seeks leave to appeal against his conviction.

2. There was only one issue for the jury to decide: Was the applicant the person to whom a ransom of $300,000 was paid? If the jury were satisfied that the applicant was indeed the person to whom Mrs Tse handed an envelope containing the money at about 5 pm on 1 February 1992, it followed unarguably that he took part in the conspiracy to kidnap Mr Tse.

Background facts

3. The victim Mr Tse owned a garment factory in Tokwawan. He and his wife lived at Argyle Street Kowloon.

4. In the early hours of 1 February 1992, whilst Mr Tse was leaving his factory building, he was overpowered by three men, tied up, blind-folded and put inside the boot of his Mercedes Benz car which was then stolen and driven off. He was taken to a hut and was badly beaten up.

5. At 4 am Mr Tse was forced to contact his wife by telephone with instructions. Soon afterwards, Mrs Tse was picked up by three men outside her flat at Argyle Street and taken to see her husband. The captors demanded $3m for Mr Tse's release. To apply further pressure on the couple Mrs Tse was half-stripped and photographed. In the end the ransom was agreed at $300,000 and Mrs Tse was taken home by car, arriving there at about 7.30am. The police were alerted and the ransom money was made ready. In the meanwhile, the police mounted a surveillance operation. Three officers were stationed in the vicinity of Argyle Street: PW16 Sergeant 12865, PW17.DPC 45244, who were in a seven seater van, with PW17 driving, and PW18 Sgt. 23260, who was on foot. There were other police officers involved. They were all in radio contact with each other.

6. It is common ground that Mrs Tse, acting on the kidnappers' instructions, left her flat and started walking along Argyle Street at about 4.52pm on 1 February. The police kept her under surveillance. She was carrying in her hand a yellow paper bag which contained the ransom money. Shortly thereafter, a man wearing a black leather jacket and blue jeans approached Mrs Tse and, eventually, the yellow bag containing the ransom money was handed to him. As to the place where the handing over took place, there was a variance between the testimony of the police witnesses on the one hand and that of Mrs Tse on the other. The police evidence was to the effect that Mrs Tse handed the bag to that man on the pavement at Argyle Street one or two feet behind the front seat of PW16 and PW17's van, near the junction of Argyle Street and Lomond Road. Mrs Tse's testimony was to the effect that the bag was not handed over until she was about one-third of the way up Lomond Road. The police witnesses agreed that the man did walk up Lomond Road, but not until after the bag had been handed over. PW17, the driver of the van, testified to the effect that he saw the man making a call on his mobile phone at Lomond Road: something apparently unobserved by Mrs Tse. PW18 followed the man at a distance up Lomond Road across Prince Edward Road West and up Junction Road, Mongkok. Eventually the man got into a taxi at Grampian Road. PW18 noted the taxi's number and alerted his colleagues by radio. The taxi was followed to Wong Tai Sin by PWs16 and 17 in their van. At Lung Hing House in Wong Tai Sin the man was seen to get out of the taxi, still holding the yellow bag. PWs16 and 17 drove past, and lost sight of the man. In the meanwhile, PW18 reached Lung Hing House and saw the man emerge and get into the rear seat of a red Honda car EP9131. The three police officers (PWs16, 17 and 18) were unable to follow EP9131 and when it was next seen by PW18, shortly thereafter, there was only the driver in that car. EP9131 then became the object of surveillance, for obvious reasons. It was followed by the police to Sheung Shui and then eventually to Tung Shing Lee Village at Yuen Long, arriving there at about 6pm.

7. EP9131, parked at Tung Shing Lee Village, was kept under observation by the police. At 7.05pm, PW17 saw a car EX4989 drive past EP9131 and stop. The driver alighted and looked into the red Honda and then drove off. Suspecting that the driver of EX4989 was involved in the kidnapping, that car then came under police surveillance.

8. The next thing that happened was that at 11.28pm two police officers saw EX4989 at Yuen Long. The driver was immediately detained by the police. That driver was the applicant.

9. The arrest of the driver of EX4989 was then communicated on the police radio network and PW16 and PW17 in their van went to the scene of the arrest. The area was brightly lit. By this time the applicant was handcuffed, sitting in the first row of passenger seats in a police van. PW16 and PW17 looked into the police van and recognized the applicant as the person whom they had seen earlier in the day receiving the yellow bag from Mrs Tse.

10. The applicant was then taken to police headquarters and at about lam on 2 February PW18 went there to see who had been arrested. When he saw the applicant he recognized him as the man whom he had followed that afternoon.

Main issue

11. The issue for the jury, in essence, was whether the identification of the applicant by the three police witnesses as the ransom collector was sufficiently sound as to justify the applicant's conviction. Identification parades were held for Mrs Tse and the taxi driver who had conveyed the suspect to Lung Hing House at Wong Tai Sin. The taxi driver was unable to identify anyone and Mrs Tse pointed to an actor (one of eight who was in the line-out with the applicant) as the ransom collector. The judge told the jury, quite correctly, that the case turned on the identifications made by the three police witnesses alone.

Grounds of appeal

12. Mr Marash has argued the case for the applicant with skill and persistence. He has supported his argument with a most helpful skeleton.

13. The first ground is misdirection concerning the effect of Mrs Tse's testimony. The passage impugned is this:

"At about 4.25pm [meaning, obviously, 4.52pm] she [Mrs Tse] walked along Argyle Street in a westerly direction and recognized a man who had earlier returned her home after seeing her husband".

14. It is accepted by the Crown that Mrs Tse never purported to recognize the ransom collector as the man who had "earlier" returned her home after seeing her husband.

15. The question for us is whether this amounted to a material misdirection. Mr Marash argues that this was extremely prejudicial because it was tantamount to telling the jury that the police witnesses had identified the right man. We find difficulty in following this argument.

16. Mrs Tse was wholly unable to identify the applicant as the ransom collector. Her testimony therefore did not go to the central issue at all. If the applicant were indeed the ransom collector, it added nothing to his culpability if he was also the one who had brought Mrs Tse home after seeing her husband. The question whether the applicant was or was not the ransom collector could only turn on the testimony of the three police witnesses; the misdirection

complained of added nothing in that regard. In our judgment, this was not a material misdirection.

The quality of identification evidence

17. For the space of nearly one hour, from 4.52pm to some time before 6pm, the ransom collector had been under the observation of the three police officers off and on. By the nature of the operation involved, the observations were made from varying distances and different angles. One would not expect a police officer conducting a surveillance to stare the target in the face. As regards the observations by PW16 and PW17, from their van, when the man was receiving the yellow bag from Mrs Tse, there was a marked discrepancy between their testimony and that of Mrs Tse. They claimed that the transaction took place on the pavement more or less alongside their van, though to the rear of the front seat. Mrs Tse said that this took place one-third of the way up Lomond Road: a considerable distance from the junction where the van was. If Mrs Tse's evidence be correct, then the ability of the officers to observe the features of the ransom collector would have been less than they claimed. This discrepancy in the prosecution evidence was clearly adverted to by the judge and there can be no complaint of misdirection in this regard. Mr Marash's point, put on behalf of the applicant, is this: the judge minimised this weakness in the prosecution case by suggesting to the jury that the police version was more likely to be accurate because Mrs Tse "must have been in a highly distressed and anxious state of mind", having "earlier seen her husband in captivity after he had been beaten up". Mr Marash does not suggest that this alone amounted to material misdirection. His argument is that as the entire case turned on the accuracy of the identification of the ransom collector by the three police witnesses, all discrepancies and specific weaknesses in the prosecution evidence should have been highlighted; he relied on R. v. Keane [1977]65 Cr.App.R. 247 in this regard.

Opportunity for observation

18. As the three police officers trailed the ransom collector from the time he was first observed at Argyle Street until the time he was driven off in the red Honda EP3191 there were various opportunities for them to observe the facial features of that person. These were laboriously gone into by the judge in the course of his lengthy summing-up.

19. In cross-examining the two officers in the van, PW16 and PW17, defence counsel was able to extract from them agreement that the expressions "a fleeting glimpse" and "a fleeting time" were apt to describe the occasions when they were able to observe the man. Mr Marash's complaint is this: The judge told the jury that the quality of an identification did not "hinge solely on the length of time available to a witness to see the person whom he identified"; he said to the jury:

"..... you may find, and it is a matter for you, that this case was not of fleeting encounters but was of visual identification which you will consider with the cautious approach which I brought to your attention earlier".

20. Mr Marash again does not suggest that this, by itself, can amount to material misdirection but he argues that this is yet another instance where the judge "watered down" the weaknesses in the prosecution case.

21. The officer in the best position to identify the ransom collector was PW18 who was on foot. There was a period of about 40 seconds when he was at the same safety island with the ransom collector whilst the pedestrians were waiting for the traffic light to change at Prince Edward Road. The judge gave lengthy directions to the jury regarding the effect of this evidence. Mr Marash's complaint is that the judge exaggerated the opportunities open to PW18 to make close observations. The passage complained of is this:

"At the safety island in the middle of Prince Edward Road West, PW18 insisted that notwithstanding the presence of some other pedestrians who were not standing close to each other and using people as cover, he was able to see the man's face clearly for a lengthy period of about forty seconds".

22. Mr Marash says that this might have given to the jury the impression that the period of observation was forty seconds. With respect, this cannot be right. The judge had told the jury earlier that during those forty seconds PW18 "looked at the man intermittently so as not to make the man aware of his being followed, but he had his entire attention on the man. He could see the man's head moving slightly, and it was because of this that he could see his face".

Black leather jacket

23. At the time of his arrest, the applicant was wearing a black leather jacket and blue jeans. The black leather jacket had green shoulder panels. In his testimony PW18 said that this jacket when produced in court "surprised him" because the ransom collector's jacket was "all in black". This, argues Mr Marash, throws doubt on whether the applicant was accurately identified as the ransom collector since, when the applicant's home was searched, there was no trace of any jacket meeting PW18's description.

24. We have ourselves seen the jacket when it was produced in court. Certainly, from the distance separating the bench and counsel's table, the description of a black jacket would have been accurate, since the green in the fabric merged with the black. It was only after the jacket was closely examined that the difference in texture and colour could be seen. We see nothing whatever in this point.

Training in surveillance

25. Another matter of which counsel complains regarding the summing-up is this: The judge exaggerated the police officers' ability in identification by telling the jury that they were "all well-trained in surveillance" and contrasted their "calm and concentrated" observations with Mrs Tse "distress". The description might have been accurate as regards one of the three officers, but there was no evidence as regards the training of the other two. Again, Mr Marash does not suggest that this inaccuracy could, by itself, amount to a material misdirection but is, as he argues, yet another instance of how the cards were stacked against the applicant.

Confrontation

26. As mentioned earlier, it was at about 6pm that PW16 and PW17 lost the trail of the ransom collector, after he had boarded the red Honda EP3191. It was not until some five-and-half hours later, at about 11.30pm, that they went to Yuen Long and looked into the police van where the suspected person, the applicant, was held handcuffed. There were some minor discrepancies in the police evidence regarding the circumstances of that identification, which the judge described as a "confrontation". For example, one of the officers said that he looked through the side window whereas the other said that he looked through the door.

27. Like the judge, we cannot see how such variance or "discrepancy" between PW16 and PW17's testimony was material to the identification. Such discrepancies could only have gone to the quality of the recollections of those officers regarding what took place at Yuen Long and were more apparent than real. This could only have at the highest a remote bearing on the question of the accuracy of their visual recognition.

28. It is Mr Marash's main contention that, when the judge told the jury that the discrepancies were not material to the identity of the person arrested, this was a fatal misdirection.

29. The full passage of the summing-up, of which counsel complains, is in these-terms (at p.37-O):

" Learned defence counsel highlighted various discrepancies in the evidence of PW16 and 17 with regard to the police van in which this defendant was being held after his arrest and the opportunity they had of looking at him as he sat inside the van. Yet it was admitted by the defence that the person who was arrested as he came out of EX4989 was this defendant and that it was this defendant who was taken into that van.

In view of this admission, you may find, and it is a matter for you, that those discrepancies are not material to the identity of the person who was arrested. On that basis, the defendant admits that he owns EX4989 and admits that on that evening at about 7pm he had in fact parked his car close to EP9131 which belonged to his friend, and had, as he put it, out of curiosity, looked into it to see if anybody was in it, and had then gone home and later driven away. That account, of course was at variance with the version given by the surveillance officer, the detective police constable, PW17."

Counsel submits that this was an unwarranted direction to the jury that the police had the correct man - the ransom collector. We cannot accept this submission.

30. As regards the earlier incident when PW17 saw a man "peeping" into EP9131, there was no dispute that that was the applicant. Nor was it in dispute that, later on, it was the applicant who was in the police van under arrest. The only question for the jury was whether the police had correctly identified that man, the applicant, as the ransom collector. The jury could have been under no illusion that the police officers were saying that the arrested man was the ransom collector. The quality and correctness of that identification was left fairly and squarely for the jury to decide.

31. Counsel relies on this "fatal misdirection" as yet another instance of the judge watering down the weaknesses in the prosecution case. We will revert to this at the conclusion of this judgment.

Alibi

32. At the trial, the applicant gave evidence, denying any involvement in the kidnapping and the collection of ransom. He claimed that in the early hours of 1 February 1992, when the kidnapping was taking place, he was with his girlfriend in Tung Shing Lee Village watching hired videos and television; they did this until the early morning. They then slept through the greater part of the day. He arose at about 4pm. At the time when the ransom collector was at Mongkok, then later boarding the red Honda at Wong Tai Sin shortly before 6pm, he was in the Yuen Long area.

33. The applicant's girlfriend did not testify at the trial, but he called as his witness a neighbour Mrs Leung Sau-kwan who said that she saw the applicant around 4.30pm at Tung Sing Lee Village when she left her hut to dispose of rubbish.

34. If Mrs Leung's recollection as to the date and the time when she met the applicant were correct, then the conviction cannot safely stand because it was impossible for the applicant to have gone to Argyle Street on that day by 5pm, or shortly before 5pm.

35. Mr Marash's argument is this: it was never put by the prosecutor to Mrs Leung that she was lying, or had mistaken either the date or the time; in these circumstances, there was no reason why the jury should have rejected her testimony. Mr Marash relies upon a passage in Hart [1932]23 Cr.App.R. 202 at 207 to this effect:

"....if, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted".

36. Whilst we accept the generality of this proposition, it should be borne in mind that there is no hard-and-fast rule as to how a witness's testimony should be challenged. In this case, prosecuting counsel focussed upon the applicant's story, that he left Tung Shing Lee Village to go to Yuen Long with his girlfriend; counsel contrasted this with Mrs Leung's testimony, that she never saw the girlfriend that afternoon. Since there was only one route which led from the applicant's house to the rubbish collection centre, it was highly improbable that Madam Leung would have missed seeing the girlfriend if, as the applicant had testified, she was with him at the material time. This seems to us a sufficient challenge to the alibi evidence for the issue to have been clearly identified for the jury.

37. The judge summed up to the jury the alibi evidence fully. At the end he said:

"If.... you are satisfied that the alibi has been made out or it has left you with doubts about the prosecution case as a whole, then you will find the defendant not guilty of the offence".

38. This was, needless to say, a perfectly correct way of leaving the issue to the jury.

Material irregularity

39. Another passage in the summing-up of which counsel complained is this:

".....Mrs Tse was unable to identify the defendant at the identification parade, also the victim and the taxi driver could not identify him. Had they been the only witnesses, then it would seem very improbable that this trial would have reached this present stage for I would have put paid to it at the close of the prosecution case. Here you have the evidence of those police officers which you will consider along the lines I have mentioned".

40. Counsel argues that this was tantamount to telling the jury that he as the judge had ruled that there was sufficient evidence of identification, based upon the testimony of the three officers. This, counsel says, is an improper observation. He relies on the judgment of the English Court of Appeal in Smith and Doe (1987)85 Cr.App.R. 197 at 200 where the convictions were quashed because the judge had told the jury that if he had not thought there was sufficient evidence of identification available to the jury he would have withdrawn the case from them.

41. We accept, of course, that a judge ought not to tell the jury what view of the prosecution evidence he had formed upon a submission of no case to answer, which of course takes place in the absence of the jury. Here the judge did not tell the jury in express terms what ruling he had given on a submission of no case, as the judge did in Smith and Doe and we do not think that the jury would have construed the judge's remarks in that light. What the judge was at pains to emphasize, as he did throughout the summing-up, was that the case hinged solely upon the quality of the police officers' identification. The oblique reference to the submission of no case was unfortunate, but we are not persuaded that the passage impugned by counsel amounted to a material misdirection.

Conclusion

42. Counsel has argued the case for the applicant with great skill. He has covered much ground. The evidence and the summing-up has been subjected to close examination. The judge made it clear to the jury, repeatedly, that it was their sole responsibility to weigh the evidence, and any view which he expressed could be disregarded, unless it coincided with their own views. This was not a case where the summing-up was all one-sided: For example, in relation to Mrs Tse's description of the collection of the ransom, the judge expressly told the jury that Mrs Tse never testified to the effect that she was either distressed or confused or anxious. There were, as we have pointed out earlier, minor inaccuracies in the summing-up: inaccuracies which are to be expected in an elaborate summing-up which spans 43 pages of print. The minor inaccuracies and the judge's comments on the evidence do not, in our view, render the verdict unsafe or unsatisfactory. The case was fairly tried and the jury's verdict of guilt was unanimous. We are not minded to interfere with the verdict. The application is accordingly refused.