THE QUEEN v. LAM CHUN CHUEN

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted after trial before His Honour Judge Surman of the offence of criminal damage and was sentenced to nine months' imprisonment. He now seeks leave to appeal against both conviction and sentence.

2. The evidence for the prosecution was that shortly after 3 o'clock on the afternoon of 14 November 1990 a group of men entered the premises of the South Roll Industrial Company in San Po Kong and caused substantial damage by smashing various items of equipment and furnishings with water pipes, stools and other objects. The applicant was identified by three witnesses, PW1, PW2 and PW3, who were the joint owners of the company and a watchman Respectively They all testified that the applicant was one of men. of the group of men. PW1 and PW2 were familiar with the applicant as he had come to visit them on several previous occasions asking for repayment of money. PW3 had seen the applicant on one or two occasions when he had visited the South Roll Industrial company prior to 14 November.

3. The applicant elected to give evidence. He testified that he had been present at the office of his company, Carl Rich Industrial Company, on the afternoon of 14 November from about 2 o'clock when he had had a discussion with his partner, Mr. Leung, about a cheque which had been paid by Mr. Leung into the company's account, and that a friend, Mr. Siu, had arrived at about 2.15 p.m. and had remained with him at the office until nearly 5 p.m. when they left and walked to Mr. Siu's shop some 15 to 20 minutes walking distance away, stayed at the shop for some five to seven minutes and then went to a cafe across the road where they remained for between 15 and 20 minutes.

4. This was substantially confirmed by Mr. Siu who testified that tie had arrived at the applicant's office shortly after 2 p.m. and bad remained there until about4 p.m. when they both left and went by foot to his business premises, had a short discussion there and then went to the cafe for about 20 minutes before parting company. Mr. Siu recalled that he had seen and spoken to Mr. Leung when he was at the applicant's office in Carl Rich Industrial Company.

5. Mr. Leung also confirmed the applicant's evidence. He was able to recall the precise date by reference to the conversation he had had with the applicant about the payment of the cheque into the company's bank account. He was able to produce a dated bank pay in slip relating to that transaction. He recalled that Mr. Siu had then arrived, that he had greeted him and that he was aware that the applicant and Mr. Siu were present in another office until 5 p.m. when they both left.

6. In his reserved judgment, which he delivered 4 days after the conclusion of the trial, the judge stated that, although he did. not think that the two alibi witnesses had deliberately attempted to deceive him, he had "grave doubts whether Mr. Leung and the applicant were together at all that afternoon", and "had doubt whether Mr. Siu and the applicant were together for all the hours that they said they were". He noted that the South Roll Industrial Company and Carl Rich Industrial Company were "not very far apart" and concluded that it was possible that Mr. Siu and the applicant might have been together at the Carl Rich Company premises after the incident had occurred at the South Roll Indusl Company.

7. On the basis of the evidence of two of the identifying witnesses, PW1 and PW3, he was satisfied so that he was sure that the applicant was one of the group of men who had caused the damage in the South Roll Industrial Company. However, he was not prepared to place any weight on the evidence of PW2 because she had said that she had seen the applicant for "only a couple of seconds?at the time of the attack.

8. He totally rejected as ill founded the defence that PW1 and PW2 had falsely accused the applicant "in order to stop Fuda Company (in which the defendant had an interest) from pressing a lawful claim for monies owed to it by the Cheung Koon Company (in which PW1 had an interest)". In this regard it had been the applicant's evidence that he had earlier approached PWl and PW2 on six occasions with a view to getting Cheung Koon Company, a company in which he and a Madam Ng Yim Hung were shareholders and directors. It was his contention that PW1, PW2 and PW3 had either been mistaken in their identification of him as one of the men who had caused the damage on 14 November or had deliberately lied about the matter.

9. Mr. Plowman, who appeared for the applicant in this court but not in the court below, advanced several grounds of appeal. He submitted that the judge had erred in law by adversely commenting on the applicant's failure to provide the police with Mr. Leung's name at the first opportunity, and for relying upon that as a reason for having doubts about the truth of the applicant's alibi. He further complained that the judge erred by stating that "the defendant had emphasized to the police on 20 November 1990 (when interviewed) that Mr. Siu was his only witness". Mr. Plowman submitted that there was no evidence that the applicant had emphasized that Mr. Siu was the only witness who could support his alibi.

The judge said this at page 6 of his judgment:

"Although Mr. Leung tells me he was concerned about the matter - and the defendant must plainly have been concerned too - yet there was apparently no mention made about Mr. Leung to the police after the defendant was interviewed on 20/11/90, or on 13/12/90 when the defendant was identified at the identification parade, or on 24/1/91 when the defendant was actually charged with the offence of criminal damage. No mention was made until July 1991, Moreover, the defendant had emphasized to the police on 20 November 1990 (when interviewed) that Mr. Siu was his only witness."

With regard to this matter, the applicant had testified:

"I was asked to make a statement at the police station. I did tell the police that I had been with someone else on 14 November. I was asked, if I could, by the police, to provide alibi witnesses. I gave Mr. Siu's name to the police - the only person. I gave details of Mr. Siu so that they (the police) could investigate the matter with him."

10. When taxed in cross-examination as to his failure to mention Mr. Leung's name to the police on 20 November the applicant replied:

In the police station I was somewhat frightened so I failed to recall Mr. Leung."

11. It was apparent from the testimony of the applicant and Mr. Leung that, on the applicant's return to his office after his interview with the police on 20 November, the applicant had spoken to Mr. Leung about his predicament, and that it was then that Mr. Leung recalled the conversation about the cheque on the afternoon of 14 November and that Mr. Siu had arrived and spent that afternoon with the applicant.

12. With the greatest respect to the judge we do not think that it can fairly be deduced from the bare words "I gave Mr. Siu's name to the police - the only person" that the applicant was emphasizing that Mr. Siu was the only person who could support his alibi. It seems to us that the only fair interpretation of those words is that the applicant was emphasizing that Mr. Siu was the only person whose name he had given to the police.' But it was this misconceived impression, that the applicant had emphasized to the police that Mr. Siu was the only person who could support his alibi, that apparently formed the foundation for the judge's conclusion that there was something sinister about his failure in not notifying the police until July 1991 that Mr. Leung also could support it.

13. Moreover, although the applicant could not remember when he had told the police that Mr. Leung could support his alibi, it is clear from the evidence that he must have done so prior to 11 July 1991, because it was on that day that the police contacted Mr. Leung and made an appointment with him for him to give a statement on the following day. This was earlier than the date on which the applicant was required, under the provisions of sec.75A of the District Court Ordinance Cap.336, to give an alibi notice. The trial was due to commence on 14 August. To comply with the section the notice had to be given by 4 August.

14. The judge stated:

"This alibi put forward by the defendant was not, in my view, water tight, it had several leaks in it. And overall I had doubts about the detailed truth of it." (judge's emphasis)

15. It is difficult to discover from the judgment what these leaks were. It seems likely however that what the judge had in mind is contained in the following passage:

"I formed the impression that Mr. Leung was certainly willing to help the defendant by giving evidence in the trial. But I had doubt about the assertion made by Mr. Leung that because he had made the $30,000 payment at CAL (sic) Rich in the morning of 14 November that he was necessarily therefore able to be sure that he was with the defendant on the afternoon of the same day." (judge's emphasis)

16. It seems to us, however, that this misses the point. It was not the fact of Mr. Leung's payment of the cheque for $30,000 on the morning of 14 November, but the discussion that he had with the applicant concerning the cheque on the afternoon of the same day that enabled Mr. Leung to be sure that he was with the applicant on that afternoon. He was also able to remember that afternoon because it was the afternoon on which Mr. Siu had visited the applicant.

17. Bearing in mind that the judge formed the view that the two alibi witnesses had not attempted to deceive him, the only question remaining was whether they were mistaken. The judge appears to have overlooked or to have given no weight to the evidence that each of them had seen the applicant in the company of the other at the office of Carl Rich Company on the afternoon of 14 November. The possibility of mistake must surely be reduced where the evidence of two honest witnesses dovetails as it did in this case.

18. As to the applicant's late disclosure that Mr. Leung too could support his alibi, Mr. Plowman referred us to the following passage in Cho Chak-bor v. R. [1983] HKLR 174 at 184:

"It is perhaps unfortunate that some of the case law has tended to ellide the distinction between two situations which are at least conceptually not difficult to distinguish. Silence in the face of a challenge, or of accusatory questioning, which might be expected to elicit a response can afford positive evidence of guilt but only to the extent that the reaction of the defendant is to be interpreted as accepting in whole or in part the substance of the accusation (Rex v. Christie [1914] AC 545, per Lord Atkinson at p.554 in a passage which receives emphatic endorsement by Lawton, L.J. in Chandler [1976] 63 Cr App R 111). That is to say, the reaction of the defendant may constitute positive evidence against him.

Failure to disclose the defence before trial is a different matter. The reason for seeking to adduce such evidence could only be that it. might tend to negative, the truth of the story which is eventually produced in evidence. Its tendency would be to weaken the defence rather than to add to the strength of the prosecution case. The issue then would be credibility. on the cases, however, this form of attack on credibility is not permissible."

We pause here to observe that in R. v. Lau Sou-wah Criminal Appeal 1174 of 1982 McMullin V.-P. stated that the word "comment" should be substituted for the word "attack" in the penultimate line of the above passage.

19. McMullin V.-P. then referred in Cho Chak-bor to the following passage in Cross on Evidence (4th Ed. p.492):

".... the circumstances of a particular case may be such that it would be wrong to infer guilt indirectly from the belatedness of the defence, but common sense suggests that there may also be occasions on which a legitimate line of reasoning would be that the belatedness of the defence shows that it is bogus, and that the absence of a credible answer to the prosecution's case warrants an inference that the case is unanswerable. Yet it is tolerably clear that, under the present law a direction which canvassed the possibility of such reasoning, even though clearly stating that the decision whether to employ it was for the jury, would be upset."

He then expressed a view with which we respectfully agree and would re-iterate:

"The right to comment critically, either upon silence in the sense of failure to disclose a defence, despite a timely opportunity for doing so, is, one would think, a right apt for the advancement of justice: without any appreciable danger to Woolmington's 'golden thread'."

Mr. Plowman also drew our attention to a passage from the judgment of Court of Appeal in England in R. v. Lewis (1973) 57 Cr App R 860 where Roskill L.J. (as he then was), having referred to what the trial judge in that case had told the jury about the failure of the accused to tell the police about his alibi, said this at page 865:

"It seems to the Court that that comment is capable of one interpretation only, and it is this: 'Well, members of the jury, you might have though that if this alibi be true, he would have mentioned straightaway when he was at the police station that he was at the place where he subsequently said in his notice of alibi that he was at the time.'

Two points have been put forward in relation to that comment: first, it is said that it is quite inconsistent with what had been properly said earlier, namely that this appellant had just been cautioned that he was under no obligation to say anything and therefore is inconsistent with his right to silence pursuant to that caution, for the occasion when it was suggested that he might have said something to the police was of course after and not before he had been cautioned. But the second and, in the view of this Court, even more important point is that under section 11 of the criminal Justice Act 1967, Parliament has prescribed by subsection (6) of that section the time at which a notice of alibi must be given, subject, of course, to the provisions which permit notice to be given later.

If, therefore, the learned Recorder's comment were well founded, it would have this effect, that notwithstanding what Parliament has said in section 11 (6) of the Criminal Justice Act, that a notice of alibi need not be given before the time specified in that section, nonetheless a judge might make a comment which amounted to a matter of criticism of the defendant that he had not given the notice of alibi earlier than the time which Parliament has laid down. With the greatest respect to the Recorder, that seems to this Court to be entirely wrong. The comment was one which the Recorder ought not to have made."

We respectfully accept that as a correct statement of the law.

20. We should also emphasize that, notwithstanding that there was no obligation on him to do so, the applicant in fact disclosed to the police when first interviewed by them that he was at his office at the time of the offence and that he had a witness to prove it. There was no concealment of his defence. Furthermore, as is plain from what we have already said, he gave his formal notice of alibi within time, and offered a perfectly reasonable explanation as to why he was unable to remember at the police station that Mr. Leung also could support his alibi.

21. In the light of the foregoing, and notwithstanding the judge's acceptance of the testimony of PW1 and PW3 that the applicant was one of the group of men who caused the damage on the premises of South Roll Industrial Company on the afternoon of 14 November 1990, we have come to the conclusion that the applicant's conviction is unsafe and unsatisfactory.

22. There is however one further ground of appeal that we should mention before taking our leave of this case. It reads as follows:

"... the learned trial judge erred in law by finding PW3 '... to be totally reliable - a transparently honest witness' at the time that PW3 had concluded his evidence and before any defence evidence had been called (see page 15 of the appeal bundle). In the light of such finding the learned trial judge had in effect decided the issue as to whether or not the appellant was at the scene before hearing the evidence of the appellant and his witness."

What the judge said was this:

"He [PW3] was very impressive. I noted at the time when his evidence was concluded that I found him to be totally reliable - a transparently honest witness. He was extensively cross-examined about his evidence - but he was steadfast and unwavering in his account of how he saw the Deft at the premises on that afternoon of 14th November. (He was later to pick him out at a police identification parade on 13/12/90)."

23. We do not think that this indicated that the judge had decided the issue before he had heard the evidence for the defence. In our view it is plain from his judgment that he had considered the testimony of the applicant and his two alibi witnesses before deciding to convict him. What the judge had noted at the conclusion of PW3's testimony was nothing more than an interim expression of his opinion. It is an inescapable fact that judges and magistrates form, and must form, provisional views as to the honesty and reliability of witnesses at the time they give their evidence. To do so does not mean that these views are immutable in the face of later evidence that may change the entire complexion of a case or at least give rise to a reasonable doubt: as to the guilt of the defendant.

24. We think that the following passage from the speech of Lord Pearce in Prasad v. Comptroller of Customs (1962) 106 Solicitors' Journal 628 is of relevance:

"A man, however guilty, was entitled to a trial before he was convicted. It must always be a question of degree how far judicial bias or hostility converted a trial into that which was no trial. Their Lordships appreciated that a fudge sitting without a jury might without impropriety give vent to interim expressions of opinion which it would be gravely improper to express in a trial by jury. Nevertheless, in this. case the magistrate's hostility to the appellants before they had opened their case was so immoderate and apparent that there was no semblance of a fair trial." (Emphasis supplied.)

25. We think we should add, however, that we consider it unwise for the judge to have expressed himself in the way in which he did. There is always the danger that if a judge indicates that he formed a favourable view of the testimony of a prosecution witness before he has heard the evidence for the defence, and especially where he fails to mention that such was merely a provisional view, he will convey the impression to the defendant that he has prejudged the case. For that reason we think that judges should refrain from expressing such views.

26. It follows from what we have said concerning the other grounds of appeal that we must grant this application. We treat the hearing of the application as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.