Case Detail

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 689 OF 1970

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BETWEEN
	MA KWAI PAK	Appellant
	and
	THE QUEEN	Respondent

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Coram: Rigby, C.J., Huggins & Pickering, JJ.

Date of Judgment: 28 September 1971

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JUDGMENT

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Pickering, J.:

This appeal has been referred to the Full Court by a single judge under the provisions of s.118(1)(d) of the Magistrates Ordinance. This was done not because of any inherent difficulty raised by the grounds of appeal but because the case was associated with Criminal Appeal No. 689 of 1970 which did raise issues suitable for the consideration of the Full Court. It was convenient that the two appeals should be heard upon the same occasion.

2. The appellant was charged at the Western Magistracy with driving a private car for hire or reward and with driving a private car without third party insurance. Upon his trial he was apparently willing to give evidence but his counsel, Miss Fung, submitted that it was unnecessary for him to do so and in the event the appellant neither gave evidence nor made any statement from the dock before his counsel addressed the Court on his behalf. At a resumed hearing however, counsel asked that he be allowed, even at that late stage, to make an unsworn statement and we consider that the learned magistrate acted wisely in exercising his discretion to permit such a statement to be made and so extending a considerable measure of latitude to the appellant.

3. The facts of the case as they emerge from the unsworn statement of the appellant are that a lady whom he knew, a Madam CHUNG Shuk-kuen, boarded his car which he drove to Cadogan Street where he was going to do some work and where he asked his passenger to alight. At that stage the lady gave him a ten-dollar note which he refused to accept, whereupon she said that she was embarrassed and threw a dollar coin on to the seat of the car saying that this was to buy the appellant a cup of coffee. The appellant says that he picked the coin up and threw it back to her at which juncture a Chinese man ran across the road from the opposite side and identified himself as a policeman, displaying his warrant a card and asking the appellant to stop the engine of his car, which the appellant did. After a short interval a second Chinese man came along accompanied by the lady to whom the appellant had given a lift. After identifying himself as a police inspector the second man walked away with the lady to a distance of about twelve feet at which distance a conversation, not overheard by the appellant, took place for a period of more than fifteen minutes. At the end of this period the appellant, still seated in his car, heard an elderly lady telling the inspector in a loud voice that "things should not be done in such a way" as the erstwhile passenger had denied on several occasions that she had paid money; the same comment was made by a man who was standing by. The appellant, having obtained the consent of a policeman who was watching over him, then walked up to the inspector and told him that he knew the lady who had been in his car and that she had tried to give him money but that he had refused to accept it. It was after this, according to the appellant, that the inspector wrote a few sentences in Chinese after some English phrases in his notebook; the Chinese characters being to the effect that one dollar had been given but that the driver denied this. The appellant was then taken to Western Police Station where two one-dollar coins and ten cents were found in his left trouser pocket together with a bag containing coins and seven hundred and twenty dollars in bank notes, which latter the appellant claims was the payrool for factory workers. The police retained the two dollars ten cents and the bag of coins but gave the seven hundred and twenty dollars back to the appellant who was then released upon police bail.

4. The first witness for the appellant was the lady passenger, Madam CHUNG Shuk-kuen whom, upon an application by the prosecution, the learned magistrate permitted to be treated as hostile.

5. The remaining evidence for the prosecution came from Inspector LEUNG Tat-yan and P.C. 10247, CHEUNG Yung-lun, who were the police officers who had spoken to the appellant in Cadogan Street. Both gave evidence to the effect that when the car stopped at Cadogan Street they could clearly see the movements of the persons inside it and saw the lady occupant in the rear seat hold out a one-dollar coin with her right hand to the driver who received it with his left hand by holding his left hand palm upwards over his left shoulder and then transferred the coin to his left trouser pocket.

6. Upon this evidence the learned magistrate convicted the appellant upon the two charges and sentenced him on the first charge to a fine of eighty dollars, coupled with disqualification from driving for a period of twelve months, and upon the second charge to a fine of one hundred and fifty dollars. Against these convictions the appellant now appeals, having abandoned his appeal against sentence at the hearing of the appeal.

7. The first ground of appeal consisted of a bald statement that "The conduct of the trial by the Learned Magistrate was such that justice was neither done nor seen to have been done." We repeat the unanimous opinion of the members of this Court, already stated in Court, that without being supported by any particulars, the alleged ground is not so much a ground of appeal as an unwarranted reflection upon the learned magistrate. In merely ignoring this ill-chosen, ill-phrased and under-nourished "ground of appeal" we are, we consider, treating it with generosity. Many would say that it deserve stricture.

8. The second and third grounds of appeal, which may conveniently be dealt with together, were to the effect that the learned magistrate was wrong in ignoring evidence from the appellant and his passenger that there was no prior agreement for carriage for hire or reward between them and insufficient evidence from which he could or should have drawn the inference of such an agreement. As to this, there was the plainest eye-witness evidence from two witnesses of the passing of money from the lady passenger to the appellant and the acceptance of that money by the appellant; and it was this version of events, rather than the tossing to and fro of a coin as related by the appellant and his passenger, which the learned magistrate believed. There was ample evidence to substantiate the finding that the coin passed between the two and we are quite unable to quarrel with the learned magistrate's inference that the money was handed over as payment for carriage or with his further inference that this was done pursuant to the existence of an agreement, tacit or express, that the carriage of the lady should be rewarded.

9. That is quite possibly sufficient to dispose of this appeal though in deference to the efforts of Mr. Jackson-Lipkin to assist the Court we will not pass over the remaining grounds.

10. Having said that, it is nonetheless impossible to linger upon the fourth and fifth grounds which were to the effect that the learned magistrate was wrong in failing to detect or to appreciate the significance of major conflicts in the evidence of Inspector Leung and Police Constable Cheung, such discrepancies being of such gravity and magnitude that the learned magistrate ought to have rejected their evidence or alternatively ought not to have relied upon it to convict the appellant. In our view, there were no "major conflicts" and we are wholly unable to perceive any "gravity" or "magnitude" in such discrepancies as did exist in the evidence of these two police officers. Indeed, some of these alleged discrepancies, notably those in regard to estimates of distance, were not pressed by Mr. Jackson-Lipkin in court.

11. The sixth ground of appeal was that

"The Learned Magistrate misdirected himself as to the onus of proof in that he applied the test of reasonable doubt to the evidence of the prosecution rejecting the evidence for the Defence as being merely in conflict with the already-accepted evidence for the prosecution and failed to consider the evidence as a whole and to apply there to the test of satisfaction beyond reasonable doubt."

12. This ground was based upon the learned magistrate's comment that he accepted the evidence of the police officers and in so far as the defendant's statement conflicted with such evidence, directly or indirectly, he rejected it. This assertion, Mr. Jackson-Lipkin contended, vitiated the entire decision since a magistrate should not look at the prosecution evidence and then the defence evidence but at the evidence as a whole before deciding whether he is satisfied beyond reasonable doubt of the guilt of an accused. That proposition is unexceptionable. But we do not consider that the learned magistrate's remark was directed, at the stage at which it was made, to anything more than credibility, and in that context it was a commonplace remark. He had not then reached the stage of considering satisfaction beyond reasonable doubt and we have no reason to think that when he came to do so he did not apply that test to the evidence as a whole.

13. The final ground of appeal was that the learned magistrate misdirected himself as to the nature and extent of the evidence for the prosecution and that, having rejected entirely the evidence of the passenger, there was no evidence upon which he could have held that she was even travelling in the car. Madam Chung, the passenger, having been declared a hostile witness, the learned magistrate was, of course, perfectly correct in treating her evidence as being of negligible importance (see R. v. Harris, 20 C.A.R. 144). This ground of appeal, as stated, completely misses the fact that there was other evidence of Madam Chung having been driven by the appellant in his car. Both Inspector Leung and P.C. Cheung saw the car in motion, saw it come to a halt and saw the appellant in the driving seat and Madam Chung in the rear seat and it is wholly misconceived to suggest that, because negligible weight should have been, and was, attached to Madam Chung's evidence, there was no evidence of her having been a passenger in the appellant's car. Moreover, the appellant himself did not seek to deny this.

14. Considerable emphasis was placed by Mr. Jackson-Lipkin upon the circumstance that both the appellant and his passenger were acquainted with each other and that the destination to which he drove her was not Wah Fu Estate, where she has her home and where she was intent upon going, but Cadogan Street, which was in fact his own destination. We see nothing in the fact that the two were acquainted to negative an agreement to carry and be carried for reward and, whilst it is not for us to speculate upon the reason for the lady being driven to a destination which was not her eventual destination but the immediate destination of the appellant, there can be no overlooking the eyewitnesses' evidence and no gainsaying the inferences which could be drawn, and in our view were properly drawn, by the learned magistrate from that evidence.

15. As to the matter of it being difficult or impossible for the police officers to have seen the coin placed in the appellant's left hand trouser pocket as he sat in the car, the action of placing the coin into the palm of the appellant's hand was one which they could plainly have seen and the subsequent manoeuvre whereby it was transferred to his trouser pocket as he sat in the driving seat could certainly be seen in its initial stages, the eventual destination of the coin being a matter of the clearest inference supported by the finding of two such coins in the appellant's left trouser pocket when he was asked to turn out his pockets at the police station.

16. We can see little merit in this appeal, which is dismissed. The appeal against sentence, having been abandoned upon the hearing, is also dismissed.

Representation:

Jackson-Lipkin (Tso & Co.) for appellant.

Duckett, S.C.C., for Crown.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 689 of 1970

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BETWEEN
	CHEUNG SHUK KUEN	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Rigby, C.J., Huggins, and Pickering, JJ.

Date of Judgment: 28 September 1971

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JUDGMENT

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Pickering; J.:

This appeal has been referred to the Full Court by a single judge under the provisions of s.118(1)(d) of the Magistrates Ordinance.

2. On the afternoon of the 10th September, 1970 the appellant, Madam CHUNG Shuk-kuen, was the only passenger in a private car driven by a Mr. MA Kwai-pak. Upon the termination of their mutual journey, police officers witnessed an event which led to Mr. Ma being charged with the offences of driving a private car for hire or reward and driving a private car without third party insurance.

3. Upon Mr. Ma's trial at Western Magistracy on these charges, the appellant was the first witness for the prosecution and an application that she be treated as a hostile witness was acceded to by the learned magistrate who, upon the conclusion of her evidence, intimated to her that it was his intention to call upon her to show cause under s.100(b) of the Magistrates Ordinance as to why she should not be dealt with for having wilfully given false testimony. At this stage the learned magistrate released the witness upon her entering into a recognizance in the sum of $200 to appear at 2.30 p.m. on the next day. In the event, the appellant was not so called upon under s.100(b) of the Magistrates Ordinance until the 26th of October when she applied for an adjournment in order to engage counsel. The adjournment was granted and when the matter was eventually dealt with on the 11th November, 1970, the appellant was represented by Miss Fung of counsel. The learned magistrate found that the appellant had in fact willully given false testimony and fined her $350. It is against that finding and sentence that the appellant now appeals.

4. Upon the hearing of the appeal we found it necessary to complain that the additional grounds of appeal had been filed with the court only upon the previous evening and had come into the hands of the members of the court only upon the morning of the appeal. Whilst counsel for the appellant assumed sole responsibility for this state of affairs and apologised to the court for having set aside the papers in July without initiating any action to have the Notice of additional grounds of appeal filed, we think it right to allude to this matter in order that counsel and solicitors in general may be aware - if they are not already aware - that grounds of appeal which reach the members of the court at the very last moment are inevitably of less value to the court, to counsel and to his clients, both professional and lay, than are grounds which have been filed timeously and to which the members of the court have had an opportunity of applying their minds before the hearing.

5. The evidence of the appellant in the court below was to the effect that upon leaving Sandy Bay Hospital in the rain on the afternoon of the 10th September, 1970, she was unable to find a bus or a taxi and that as she approached Victoria Road, Mr. Ma, with whom she had some slight acquaintance, called to her from a private car. In reply to his query as to why she was standing there, she told him that she was waiting for a vehicle in order to get back to Wah Fu Estate, whereupon he answered that he was going to Cadogan Street in Western District and that, if she wished, she could get into his car and he would take her to Western District since it was along his route. Since it was raining she got into Mr. Ma's car with the intention, after having been driven in the opposite direction to Wah Fu Estate, of transferring in Western District to another vehicle bound for Wah Fu Estate.

6. The appellant's evidence continued that on alighting from the car she felt somewhat embarrassed and gave a ten dollar note to Mr. Ma who refused to accept it, whereupon she returned the note to her purse and, still feeling embarrassed, threw a dollar coin through the window of the car on to the rear seat, saying, "Mr. Ma, I stand you a cup of coffee." According to the appellant, Mr. Ma picked up the coin and saying, "Mrs. Lipp, take back this coin", threw it back to her, whereupon it fell to the ground and she walked away without recovering it. We would add in parenthesis that Mrs. Lipp is the name by which the appellant was apparently known to Mr. Ma, that being the surname of her husband.

7. At this stage of the proceedings the prosecuting Inspector asked that the witness be declared hostile and the court adjourned. Upon the resumed hearing, it was put to the witness that at about 4 p.m. on the 10th September, 1970, at the junction of Cadogan and Belcher Streets, after she had alighted from the car in question, she was stopped by a police inspector who asked her whether she had given any money to the driver of the car, Mr. Ma. The appellant's reply to this question, according to her, was that she had given Mr. Ma a dollar which he would not accept. This item of evidence was reiterated time and again by the witness. It differed, however, from the interpelated evidence of Inspector LEUNG Tat-yan, the Inspector in question, who said that the appellant's answer to his question about the passing of money was "I have given him one dollar coin." Upon being asked whether anything else had been said, the Inspector replied "That was the exact answer as far as I can remember." The witness was thereupon ruled "adverse".

8. After further evidence on the part of the appellant, during the course of which she repeatedly said that Mr. Ma had refused to accept the dollar coin, her evidence concluded and it was at this stage that the learned magistrate intimated his intention of calling upon her to show cause under s.100(b) of the Magistrates Ordinance as to why she should not be dealt with for having wilfully given false testimony.

9. The evidence of Inspector Leung was the only evidence, apart from that of the appellant, as to what passed between them in the conversation regarding the transfer of money from the appellant to Mr. Ma. Mr. Jackson-Lipkin, for the appellant, argued that the learned magistrate ought not to have found her guilty of wilfully having given false testimony solely by reason of the fact that her testimony was contrary to that of a single police officer; the more so since the appellant's testimony was not a flat denial of what the police officer alleged that she had said to him in the street but merely a qualification thereof, in that whilst she agreed that she had told him that she had given a one dollar coin to Mr. Ma, she had also added that she had told the inspector that the latter had refused to accept it.

10. Counsel further urged upon us that the power given by s.100 of the Magistrates Ordinance was one which should be exercised rarely and with circumspection and ought not to have been exercised in respect of a straight dispute between the appellant and a police officer as to the nature and content of an oral statement allegedly made to the police officer; and further, that the learned magistrate ought not to have found the appellant wilfully to have given false testimony without corroborative evidence.

11. Our initial reaction to the evidence of the Inspector in regard to the appellant's reply to him in the street is that that evidence is in itself qualified evidence, for, having testified that the appellant had told him that she gave Mr. Ma a dollar coin, the Inspector, upon being asked whether anything else was said, replied "That was the exact answer 'as far as I can remember'." Such a reply was by no means unreasonable for few honest witnesses would testify categorically as to the precise words of a conversation one month after that conversation took place. We can, however, only regard such qualified evidence as a weak foundation for bringing into play the powers conferred by s.100(b) of the Magistrates Ordinance and an even weaker base for a finding beyond reasonable doubt that the appellant's evidence in court to the effect that she had added that Mr. Ma had refused to take the dollar amounted to the wilful giving of false testimony.

12. Section 100 of the Magistrates Ordinance is an unusual provision in that under it the magistrate is both the accuser and the judge and we are indebted to Mr. Duckett, who appeared for the Cwown, for his research into the history of this section which first saw the light of day in s.10 of Ordinance No.6 of 1862. That section appears to have been original since no source is traceable either in the United Kingdom or in any of the provisions of the Indian Penal Code. An amendment to the section, unimportant for our purposes, was made by Ordinance No. 16 of 1875 and the section reappeared as s.91 of the Magistrates Ordinance of 1890 (No. 10 of 1890) in a form closer than thitherto to today's s.100 of the Magistrates Ordinance. Section 94(2) of the Magistrates Ordinance of 1932 (No. 41 of 1932) took the form of the present s.100, including the necessity of offering a person against whom the weight of the section was to be employed, the opportunity of an adjournment. In 1949 the maximum penalty under the section, which had previously been a fine of $50, was increased to one of $500.

13. It is apparent, therefore, that the power conferred by the existing s.100 of the Magistrates Ordinance has existed in the Colony for more than a century. The fact that this appears to be the first case in which its application has fallen for consideration by the Full Court is possibly mute evidence of the caution and circumspection with which, over that lengthy period of time, the section has been utilized and since we are going to speak of circumspection, it behoves us ourselves to employ circumspection in seeking to lay down, upon the flimsy basis of the only case involving s.100 known to have come before the Full Court, lines of guidance for magistrates in regard to the utilization of that section. In saying that the power is one which ought to be used with circumspection we are, we believe, preaching to the converted. The mere fact of the absence of any authority in this court regarding the interpretation or employment of the section suggests that the power is not one to which frequent resort has been made. In endorsing that cautious approach to the power conferred by the section we would not, however, wish to be construed as decrying its use in appropriate cases. Instances arise where a witness confesses in open court, either voluntarily or because he is compelled to the admission by cross-examination, that his earlier testimony has been wilfully false and such a circumstance would be an obvious case for the utilization of the section unless the implications of the witness's conduct were so grave as to cause the magistrate to consider that the proper procedure was to refer the papers to the Attorney General with a view to a prosecution under the Perjury Ordinance. Moreover, the circumstance in which a witness so incriminates himself as to walk into the open mouth of the section is not the only circumstance in which magistrates may find it appropriate to avail themselves of the section. Where very grave suspicion exists magistrates will always be entitled to invite a witness to show cause in accordance with the terms of the section, always bearing in mind that the maximum penalty available under the section is such that, in any particular case, a charge under the Perjury Ordinance may be the only course capable of leading, in the event of conviction, to an appropriate penalty.

14. It will be apparent, however, and we think that it is and has been apparent to magistrates, that the section is not one to be invoked lightly. The aspect to which we have referred, namely, that the section places the magistrate in the position both of accuser and judge, is one which may well be thought to render the employment of the section invidious except in the fairly obvious case.

15. In the present instance the learned magistrate was faced with an assertion by a Police Inspector which was qualified by the phrase "as far as I can remember". In opposition to this he had the evidence of the appellant, which was not a blank denial that money had passed between her and Mr. Ma, but a qualification of the Inspector's evidence in that whereas the Inspector had said that the appellant had told him simply that she had given a dollar coin to Mr. Ma, her evidence was that she told the Inspector that she had given Mr. Ma a dollar coin but that he had refused to accept it. This, as we see it, was the extent of the conflict in the evidence; for the conversation between the Inspector and the appellant was not overheard by anybody else, and the P.C. who was with the Inspector at the time was unable to assist the Court in this respect.

16. A conflict of evidence between a witness (more usually a defence witness) and a police officer as to what was said on a particular occasion is a daily or hourly occurence in the courts of the Colony and there is, we apprehend, some danger that if, where such a conflict arises, s.100 is lightly brought into play, witnesses will come to court not only without self-confidence but in some trepidation. That is not a situation which should be allowed to obtain, and it were better that the section be repealed rather than that witnesses should so feel inhibited. We do not suggest that the situation to which we have referred does, in fact, obtain but we merely point out a possible danger of a too ready application of the section under consideration.

17. We would not wish to be thought as recommending the repeal of the section. It exists; and within its limits and the limits which we consider magistrates should, and broadly do, impose upon their resort to the section, it fulfils a useful function.

18. Inasmuch as one ground of appeal was that the learned magistrate ought not to have found the appellant wilfully to have given false testimony without corroborative evidence, it may be useful to explore the issue of whether or not corroboration under the section is required. At Common Law there could be no conviction for perjury without corroboration and, when perjury was made a statutory offence in England under the Perjury Act 1911, s.13 of that Act also required corroboration, as does s.16 of our own Perjury Ordinance, Cap. 212 which Ordinance provides that the offence of perjury can be committed in connection with matters other than judicial proceedings (see s.6 to 10). Section 100 of the Magistrates Ordinance, however, contains no express reference to perjury and s.16 of the Perjury Ordinance cannot be imported into the former section so as to render corroboration necessary as a matter of law. That that is the deliberate intention of the legislature seems to be implicit from s.19(2) of the Perjury Ordinance which provides:

"Where the making of a false statement is made punishable by any other enactment, whether passed before or after the commencement of this Ordinance, proceedings may be taken either under such other enactment or under this Ordinance."

19. If, however, corroboration is not required as a matter of law under s.100 of the Magistrates Ordinance, is it competent for this Court to lay down that it is required as a matter of practice?

20. Corroboration is sometimes the creature of statute - as under the Perjury Act to which we have referred, in charges concerning the procuration of females for sexual purposes (Sexual Offences Act 1956 ss. 2, 3, 4, 22 and 23) and driving a motor vehicle in excess of a speed limit (Road Traffic Act 1960 s.4). In other instances, however, corroboration is required merely as a matter of practice, and although we use the term 'merely' that is a relative term for in the case of accomplices and sexual offences at least, if there is no warning of the danger of acting on uncorroborated evidence, any conviction will be set aside on appeal unless the proviso can be applied. We have considered whether or not this court should lay down as a rule of practice that corroboration should be required under s.100 of the Magistrates Ordinance before the conclusion is reached that a witness has wilfully given false testimony, but we consider that, especially in the light of the fact that this is the first occasion upon which the Full Court has had occasion to consider that section, we should be slow to lay down any such direction - a direction which would, as Mr. Duckett submitted, amount virtually to re-writing s.100.

21. We would not, however, wish to leave the matter there. The very facts of this case themselves highlight at least the desirability of a measure of corroboration where the conflict of evidence is a verbal conflict between one witness and another, and we consider that in such cases corroboration, though not essential, is highly desirable so that a magistrate employing the section should remind himself of this whilst not being debarred, provided he is convinced of the truth of the one side and of the falsity of the other, from making a finding as to that falsity in the absence of corroboration.

22. In the circumstances of the present case we think that the learned magistrate acted prematurely in warning the first witness for the prosecution, at the conclusion of her evidence, that he proposed to call upon her to show cause under s.100, and we consider also that the conclusion to which he came, on the basis of a qualified allegation by the inspector which was in turn not flatly contradicted but merely qualified by the evidence of the appellant, was unsafe. We leave for further consideration the question how far the learned magistrate was entitled to have relied upon evidence given in the case between the release of the appellant upon a bond and the time at which she was actually called upon to show cause. The appeal is allowed, the conviction quashed and the fine of $350 set aside.

Representation:

Jackson-Lipkin (Tso & Co.) for appellant

Duckett, S.C.C. for Crown.

MA KWAI PAK v. THE QUEEN

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