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CACC000009/1986
IN THE COURT OF APPEAL
BETWEEN
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THE QUEEN |
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and |
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MOK Chong-keung |
(D1) |
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NG Wai-kau |
(D2) |
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WONG Chi-kong |
(D3) |
Coram: Cons V.-P., Yang & Kempster JJ.A.
Date of Hearing: 9th July 1986
Date of Ruling: 9th July 1986
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RULING
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Kempster J.A.:
1. In the context of an appeal by three applicants from their conviction by Judge Evans at Victoria District Court on 20th December 1985 and as foreshadowed in paragraph 3 of the "additional grounds of appeal filed on their behalf on 2nd July 1986, application is made to produce at this hearing:
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(1) |
the witness-statement of the complainant one SHING Cheong-hung and
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(2) |
the witness-statement of a police constable who was not called as a witness of the trial but whose name appeared on the indictment. |
Both documents had been furnished to counsel for the defendants at trial.
2. The application is made pursuant to Section 83 (v) (1) of the Criminal Procedure Ordinance; subsection 1 being independent of the terms of subsection 2. Subsection 1 reads:
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"
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For the purposes of this part the Court of Appeal may if it thinks it necessary or expedient in the interest of justice
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(a) |
order the production of any document exhibit to other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case." |
In cross-examination a number of the passages in Shing Cheong-hung's witness-statement were put to him. But neither counsel for the defence nor counsel for the Crown asked for the document to be made an exhibit. Accordingly the document as such and in its entirety was not considered by the trial judge.
3. An exactly similar situation arose in 1979 in the case of Yu Yuk-kwong and Others and The Queen (1) where counsel for one of the applicants asked the court to admit in evidence for the purposes of the appeal the depositions of one of the prosecution witnesses which, as in the present case, had been used for purposes of cross-examination but not made an exhibit. No specific reference was made to the section to which we have just alluded.
4. The judgment of the court was given by Sir Denys Roberts C.J. and the critical passage reads as follows:-
"Even if it could be said that some degree of fault could be attributed to counsel, nevertheless an appellant should not be allowed to be prejudiced by the course which his counsel elected to take.
We therefore admitted these depositions, though we would like to make it clear that we regard this as a wholly exceptional case and not as a licence to counsel to try to repair, during the course of an appeal, gaps in the defence which should have been closed by counsel during the course of the trial, whether by questions or by the introduction of evidence."
Relying only on the report that was, in effect, what the Court of Appeal permitted in 1979. We can find no distinction on the facts between that case and this. If that case was exceptional so is this. In the circumstances we feel bound to allow the production of the witness-statement of Shing Cheong-hung in the present appeal.
5. In relation to the witness-statement of the police constable this purports to recount what the witness Shing Cheong-hung had said to him. It is said and appears to be inconsistent with the evidence which Skiing Cheong-hung gave at trial. In itself it has no evidential value. It could have been used as a basis for the cross-examination of Shing Cheong-hung. Counsel for the applicant elected not to use it for this purpose. It is neither here nor there whether or not Shing said these words to the police constable. The document itself will in no way assist us in determining the credit to be afforded to the evidence given at trial by Shing Cheong-hung. In the circumstances the application in relation to this latter document is refused.
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(M. Kempster)
Justice of Appeal
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(1) (1979) HKLR 585
Representation:
Mr. John Mullick (Messrs K.Y. Woo & Co.) for all Applicants
Mr. G.J. McCoy, Crown Counsel for Respondent
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