THE QUEEN v. LI YEE CHUNG

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HEADNOTE

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                Evidence - witness challenged on basis of prior inconsistent statement which was shown to her, identified and made available to defence solicitor and Judge. Statement is then "in evidence" within meaning of dicta in R. v. Riley (Archbold 4-321) and Judge is entitled to take it into account in assessing the weight to be given to the witnesses evidence but not as corroboration of that evidence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO.519 OF 1985

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BETWEEN

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JUDGMENT

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Penlington, J. :

Background

1. The applicant was convicted in the Kowloon District Court on charges of robbery, blackmail, wounding and claiming to be a member of a triad society. The first two arose from events which happened on the 27th June 1985 in Ma Tau Wai Road. A hawker, Chan-Wing, was approached by the applicant and two other men. They each took some lychees from Chan's barrow and said they were members of the Sun Yee On Triad Society and did not have to pay.  Chan Wing nevertheless insisted, to no avail, and shortly afterwards, following a raid by officers of the Urban Services Department, he  pushed his barrow into  a lane where he was attacked by the applicant and the other two men. He was wounded and treated in hospital.

2. The third and forth charges resulted from events which occurred on the 11th of August 1985. It was the Crown's case that the applicant and two other men came up to Chan Wing and pushed him into a lane, There they demanded $10,080 from him and said he. would be beaten-up from time to time if he did not pay.  The applicant took $650 from Chan Wing's wallet.

3. The applicant gave evidence saying that in relation to the events of the 27th June that Chan Wing attacked him and he used only enough force to defend himself. The Judge did not believe him and in particular found his evidence was contrary to that of the Doctor who examined Chan Wing.

4. So far as the events of the 11th August were concerned the applicant totally denied being involved. He gave evidence to that effect and also called two alibi witnesses who said they had been with the applicant at the relevant time and he was not involved.

Alibi Evidence

5. The first alibi witness was the applicnt's girl-friend, Cheung Shuet-ling. Having giving evidence of being with the applicant on the evening of the 11th August, she was asked if she had made a statement to the Police. She agreed that she had done so and that it was true and correct. It was shown to her and she identified her signature on it but it was not formally produced.

6. Miss Cheung agreed she had said various things in her statement which were different to her evidence and also there were matters in her evidence which were not in the statement. When these points of inconsistency were put to her she endeavoured to explain them. For instance in her statement she said that after leaving home she went to the Sun Wah Restaurant to have a meal; in evidence she said she went to the Yau Ping Kei. When that was put to her she said in fact she went to the Yau Ping Kei first and then on to the Sun Wah. Clearly however the cross-examination was directed to showing that her evidence was unreliable because, inter alia, it did not tally with her police statement. It was finally put to her that she was lying to protect her boy-friend.

7. Another defence witness, Wong Ngai-man, also gave alibi evidence and he was also shown a statement he made to the Police. He also agreed it was true and correct and was cross-examined on inconsistencies between it and his evidence. He also endeavoured to explain these on the basis that the Police may have recorded his statement wrongly or that they did not-ask him about some matters. It was also put to him that he was lying to protect his friend. Again the statement was not formally produced.

Findings

8. The trial Judge was very impressed by Chan Wing as a witness and conversely unimpressed by the applicant. So far as the incident on the 27th June was concerned, there was no other defence evidence and there is no ground of appeal argued against the Judges finding that the first and second charges were proved.

9. In his Reasons for Verdict in relation to the third and fourth charges, the trial Judge said he again accepted Chan Wing's evidence and he also found that the applicant and his two alibi witnesses were lying. He said he was "not impressed with their demeanour or with anything else about them or their evidence". However he also said that both alibi witnesses" were discovered to have significantly departed in evidence from that which they told the., Police in the early hours of the 13th August when they made statements".

Ground of Appeal

10. The sole ground of appeal was that the judge "erred in failing to order that two previous inconsistent statements of two defence ............... witnesses should be exhibited."

11. In argument, however, it emerged that the real substance of complaint was that the judge should not have relied, as one of the reasons for disbelieving these witnesses, on his conclusion that parts of their evidence were inconsistent with statements which they had earlier made to the police because these statements had not been formally produced. The applicant relied for that submission on a decision of this Court in R.v. Li Chi-sing.¹

12. In R. v. Li Chi-sing , where a defence witness had made a statement which was inconsistent with her evidence, Hunter, J. commented "Unfortunately, that statement was not put in evidence when it was put to her in cross-examination", adding that "the first point that has been taken on behalf of the applicant on this appeal is that no use should be made of this statement by the learned Judge unless it was put in evidence. That point seems to be well-founded." He referred to R. v. Riley² as authority for that view.

13. We do not consider that Hunter J. intended to rule that no use at all may be made of answers based on admissions by a witness as to the contents of a statement not produced in evidence. That would be contrary to Section 14 of the Evidence Ordinance, Cap. 8, and to paragraph 4-321 of Archbold, to which Hunter J. referred.

14. In Li Chi-sang, this Court was dealing with the suggestion by the Trial Judge that a statement which was not put in evidence could constitute corroboration of a witness's evidence i.e. that the statement could be regarded as evidence of the truth of its contents. As Hunter J. commented, the most that this statement could properly have been used for was to destroy the girl's evidence and to justify a later passage in his judgment where he described her as "clearly untruthful". With this we agree.

15. There is authority that even if not formally produced a statement, once shown to a witness and identified by him, is "in evidence". In R. v. Garner³ there was a similar position to here, in relation to evidence from the mother of the accused. Mathew J. said at 700:

"..... it must be taken that her statement was agreed to as it was, for the learned counsel who had the depositions before him, if there had been any material difference in the deposition which it was necessary to point out, would have drawn attention to it. The deposition must therefore be treated as in."

In this present case the statements were shown to the witnesses. They agreed they made them and they were true. They were disclosed to the defence solicitor and were available for whatever use the Judge thought fit. There was no danger, as contemplated in R. v. Riley , of only the inconsistent parts of the statement being used to discredit the witness.

16. In our view, the judge was entitled to take into account, in assessing the credibility of the defence witnesses, answers which they gave in cross-examination which established that their evidence was at variance with their earlier statements. We note that the defence solicitor, who could have done so, did not call for the formal production of the statements.

17. We therefore dismissed the application for leave to appeal against conviction.

1.    Crim. App. 77/86

2.    1866. F and F. 964

3.    1890. Jan. 18. L.T. 699