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The Queen v Fan Ping Sun

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date10 July 1986
Year1986
Judgement NumberCACC236/1986
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000236/1986 THE QUEEN v. FAN PING SUN

CACC000236/1986
1986, No. 236
(Criminal)

Headnote

Introduction of new evidence after jury has retired - new evidence in the form of an Identification Parade Book - contents add nothing to oral evidence on identification parade.

IN THE COURT OF APPEAL 1986, No. 236
(Criminal)

BETWEEN

THE QUEEN Respondent

AND
FAN PING-SUN Appellant

-----------

Coram: Yang, J.A., Power & Penlington, JJ.

Dates of hearing: 12 June and 10 July 1986

Date of delivery of judgment: 10 July 1986

___________

JUDGMENT

___________

Yang, J.A.:

1. This is an appeal referred by His Excellency the Governor pursuant to Section 83P of the Criminal Procedure Ordinance.

2. The issue which this Court is called upon to decide falls within a very narrow compass. After the jury had retired, an Identification Parade Book was, for the first time, given to them upon their request and by agreement of counsel for the prosecution as well as the defence. The Chief Inspector in charge of the Parade made a record of the event in the Identification Parade Book and effectively read it out when giving evidence, but the book itself was not produced in Court during the trial. It should be noted however that defence counsel had the opportunity to examine the book and referred to certain pages in his cross-examination of the Inspector.

3. In order to understand fully what transpired between the learned judge, the foreman of the jury, counsel for the prosecution Mr. Hagon and counsel for the defence Mr. Leung, it is necessary to quote the Court record on this part of the proceedings in full:

"Accused present. Appearances as before. JURY PRESENT.

COURT:

 Members of the jury, I understand from the usher that you would like to see the identification parade book. Let me say at once that I have seen counsel in chambers and Mr. Hagon, for the Crown, would only be too delighted that you see the book, and indeed Mr. Leung wants you to see the book.

The problem is this, that - it is a legal, teechnical problem - and that is that this book is not an exhibit. It has never been exhibited. It is simply a record kept by the officer in charge of the parade and he used it in court to refresh his memory.

I am wondering just how necessary it is that you see this book. Is there any question you would like to put to me about this book and perhaps we can resolve it without your having to even examine it?

FOREMAN:

 We want to make sure of the circumstances, where the statements were made by the 1st accused at the parade. Not only the content but also the circumstances in which that statement ...

COURT:

 I wonder whether the parade book can help you because I think - my impression is that the chief inspector more or less referred to it throughout, he more or less read from it, so I do not really know whether the parade book can help you there.

MR. HAGON:

 I think all the parade book would do is show the sequence of events taking place, when words were spoken, was it before an I.D. or after an I.D. I think that's probably what you're getting at.

FOREMAN:

 Right. Also the content, the exact content.

COURT:

 Have you got that book in front of you?

MR. HAGON:

 Yes, the book is here. My Lord, it's agreed - and certainly no one's hiding anything, members of the jury. It's ...

COURT:

 You see, if Mr. Leung doesn't object possibly this could be just simply read to you.

MR. HAGON:

 Would that assist you, members of the jury, if I read ...

COURT:

 Would you object to that, Mr. Leung?

MR. LEUNG:

 My Lord, I am wondering whether the Crown and I, on behalf of the defence, could agree that this book be made an exhibit?

COURT:

 Well, there's no reason why you can't agree to that.

MR. HAGON:

 No, there is none at all.

COURT:

 If that's what you want let it be made an exhibit.

MR. LEUNG:

 Let it be made an exhibit.

COURT:

 Although this practice has been disapproved of in that case I referred to in chambers.

MR. HAGON:

 I think where both the Crown and the defence are only too anxious that this book - there's nothing to hide, of course there isn't - I can read it and the jury ...

COURT:

 The book will contain ...

MR. HAGON:

 Perhaps it would be easier if I simply read it, my Lord.

COURT:

 You see, if one gives the book to the jury, it could contain matters which have no relevance whatever to this particular case. I really think it might be better if one reads the particular entry.

MR. HAGON:

 If I read this over slowly, would that be of assistance to you, members of the jury? You certainly can see it, by all means.

MR. FOREMAN:

 My fellow jurors would like to examine the book ourselves.

COURT:

 To examine the book.

MR. LEUNG:

 I have no objection.

MR. HAGON:

 I have no objection. By consent ...

COURT:

 By consent let it be agreed evidence.

MR. HAGON:

 Indeed.

COURT:

 By consent let the whole book go before them.

MR. HAGON:

 Indeed, yes. Well, the whole book - may I say from page 82 to the very end, which is the last one in the book, 105. In fact, you will see, members it starts with a white page stuck on.

COURT:

 Can we take it though...

MR. HAGON:

 There are two of those.

COURT:

 Can we take it there's nothing before page 82 which has any connection with this case?

MR. HAGON:

 No, it's - nothing at all, my Lord.

COURT:

 Well, in that case let the book go in as an agreed exhibit. Well, there we are, members of the jury."

4. We have called for the Identification Parade Book as well as a transcript of the Chief Inspector's evidence. It is clear from a comparison of these documents that the production of the book to the jury added nothing to what the inspector had said in evidence. There was therefore no fresh evidence placed...

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