SHISHIR KOTHARI t/a KO JEWELS TRADING CO v. GILMAN & CO LTD

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 48 OF 1971

(ON APPEAL FROM O.J. ACTION NO. 1915/70)

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JUDGMENT

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Leonard J.

1.  This appeal turns entirely on questions of fact. There are two facets of the evidence which I consider to be of fundamental importance, and as to which I have the gravest suspicion. The first is that relating to the cords with which the respondent was allegedly bound and the second that relating to the wounds on his chest and left arm. In view of the onus placed on the respondent by the pleadings of proving on the balance of probabilities that he was in fact robbed. I find it necessary to ask myself “if it appears unmistakably from the record that in reaching the conclusion that the respondent had been robbed the learned trial judge had not taken proper advantage of having seen and heard the witnesses or had failed to appreciate the weight and bearing of circumstances admitted or proved.”

2.  The evidence as to the cords presents a conflict between witnesses – between Mr. Li whose evidence was taken de bene esse and Inspector Ferrige.

3.  Mr. Li swore that he found the respondent in the bathroom of his flat bound hand and foot with cords and cotton material and gagged. He first removed the gag prising open the knot with a fruit knife. He then, having called the police, cut the cords leaving some knots in them. If his evidence is accepted it is clear that the knots in the cord might have been few for although he said there were “quite a number of knots” he described the body of the respondent as having been “bound round and round by those venetian lines”. He was, one must remember, only a boy of 18 at the time he gave evidence but judging from the record of his evidence (which was taken de bene esse) he does not appear to have been shaken nor to have contradicted himself in cross-examination. He was quite definite that after he had freed the respondent “only some of the knots” were still there. He was not, however, clear whether knots were still on the cord he took from the respondent’s legs although he cut it. There was evidence that the cords were untouched prior to Inspector Ferrige’s arrival at the premises and Inspector Ferrige was quite definite that when he came to the premises there were no knots in the several pieces of cord which he found in the bathroom. Photographs taken of the cords in the bathroom were of no assistance for it was not clear at what stage they were taken and the cords were undoubtedly used in an experiment to tie up a detective at some time. In evidence the respondent did not commit himself as to whether there were knots on the cords after he had been freed. As to this he said :

“As I said when they tied me up, there were knots many knots on the back of me and after Mr. Li cut my bonds, when he cut the cord and the cloth I had not looked back to see whether there were knots on the cord or on the cloth”.

On the question the learned judge observed :

“an unexplained contradiction in the evidence relates to the cord with which the plaintiff was bound. It was the evidence of Mr. William Li that after he had cut the cord, some knots remained in it. A police corporal, ......... testified that nobody touched the cord before Inspector Ferrige’s arrival and yet Inspector Ferrige says that when he first saw the cord there were no knots on it. This contradiction has remained unexplained and I can only assume that one party or the other was mistaken in regard to the presence or absence of knots in the cord.”

4.  The learned judge did not see Mr. Li. He did, however, see Mr. Ferrige and he clearly entertained the possibility of Mr. Ferrige having made a mistake but could not make a finding on this point. In the absence of a finding that Mr. Ferrige was mistaken or lying on this question I am left with no more than grave doubts as to whether there was a robbery.

5.  The second and more important point tending to show that there had been no robbery lay in the nature of the wounds suffered by the respondent. There were photographs of these exhibited and evidence concerning them was given by Dr. LEE Wee-soon. He said there were several superficial irregular scratch marks in the chest and three almost parallel scratch marks quite close together on the left shoulder. They were caused by a sharp instrument but could not have been caused by scratching with finger nails. It appeared from the photograph that those on the chest were horizontal, those on the arm vertical. It was the evidence of the respondent that these injuries were caused in the course of the robbery. His evidence-in-chief on the point was as follows :–

“At that time the other man was in the sitting room. When I picked up the telephone that same man came and snatched the telephone from my hand and let it drop and let it hang. He suddenly drew out a knife from his coat pocket and started swinging.

Q. : And started what?

A. : And started swinging the knife. Again we had a struggle there and during this struggle the knife hit me a couple of times on my left shoulder then on the high part of the chest on the left hand side. The other man from behind came and pushed me hard so that I was in the grip of the tall man. He kept his knife near my throat and told me that ‘Now, if you don’t stand up or if you scream or shout I will kill you.’ I was very frightened and then I gave up the struggle .....”

6.  After a very lengthy cross-examination concerning his account books he was questioned about a statement made to the police. The relevant passage of his evidence reads as follows :

“Q. : .... ‘I went near him guarding myself trying to snatch the knife from him’ Did you do that ?

A. : Yes, I did.

Q. : ‘During the struggle he struck me four or five times’?

A. : Yes please.

Q. : How did he strike you? With the knife, or his fists or what?

A. : No, he was swinging the knife. I was facing the safe ... after snatching the telephone down he drew out the knife so I had to cross the table and I went near my table on the left hand side and by that time he was near the safe and he drew out the knife near the table, and he had a knife at that time near the safe and he was swinging it and with my left hand I was trying to take the knife from him and during that struggle he struck me four or five times.

Q. : With what ?

A. : With the knife.

Q. : So that knife actually contacted your body and cut you.

A. : Yes please.”

When questioned about the photographs showing the scratches he said :

“Q. : Turn over the next one –you see these marks here on your arm, your left arm, is it your left arm or your right arm ?

A. : That is the left arm.

Q. : What are those ?

A. : These are knife marks.

Q. : These are knife wounds, you are certain of that ?

A. : Yes please.

Q. : You could actually feel the knife cutting you ?

A. : I wouldn’t say cutting me but brushing me.

Q. : In a struggle of that nature where you say one man was – what was the term you used ?

A. : Swinging.

Q. : Swinging a knife and you struggled with him, you got off very lightly, didn’t you ?

A. : I think the man who was handling the knife was very good at it and he wanted to frighten me and not to hurt me.”

7.  Judging from the photographs, it seems to me that the horizontal scratches on the chest and the parallel vertical scratches on the left arm, if inflicted during the course of a struggle with the intention to frighten and not to hurt would have required a delicacy of touch worthy of an expert surgeon.

8.  The respondent having been examined at the Casualty Department of Tang Shiu Kin Hospital and treated for a bruise on his chest and the several irregular scratches on the chest and left arm, the forensic pathologist Dr. Ong was summoned by the police to the respondent’s flat where the respondent was being questioned by the police. Dr. Ong asked him whether he wanted to be examined and he refused to be examined by Dr. Ong. He was not cross-examined as to the reason for this refusal but Inspector Ferrige when questioned by the court concerning it, said :

“He said he had already been examined by a doctor at Tang Shiu Kin and it was not necessary for him to be examined again.

Q. : Does that sound to you to be a reasonable rather than an absurd refusal ?

A. : Yes, my Lord.”

It may well have been a reasonable refusal. However, I should have been glad of the assistance of the evidence of Dr. Ong as to whether those injuries resembled any that he had seen in his vast experience of knife wounds caused in a fight. Having seen the photographs and read all the evidence concerning them I find myself well nigh irresistibly driven to the conclusion that they were not inflicted in a struggle.

9.  The learned trial judge does not in his judgment comment on the nature of the wounds (other than to note that they were superficial scratches which could not have been caused by the respondent’s own finger nails) nor does he seek to make any deduction from their nature. This was perhaps because counsel for the appellant appears to have cross-examined at great length on the collateral issue of the respondent’s accounts and capital position and to a very restricted extent on what was the essential question namely was the respondent the victim of a robbery ?

15.  Adapting the words used in Watt v. Thomas^([1]) I ask myself did the learned trial judge fail “to appreciate the weight and bearing” of the evidence as to the wounds and cords when coupled with the story of the robbery as given by the respondent ? The learned trial judge had the great advantages described by Lord Thankerton as “sometimes broad and sometimes subtle” which come from hearing and studying the witnesses. In this case he had indeed ample opportunity for studying the respondent (he was cross-examined for almost 2 days for the most part on collateral issues). For my part I viewed the evidence of the wounds and cords with such suspicion that I have taken the unusual course of discussing the matter with the learned trial judge as I feared that his attention might have been diverted from a critical assessment of the wounds shown in the photographs and such medical evidence as there was by the manner in which attention was focused on inessentials in particular on the collateral issue of the respondent’s bank books. This fear is, I learn, unwarranted. He was quite satisfied on the evidence of the plaintiff that the robbery had in fact taken pace. He had advantages which I had not had. In all the circumstances I do not consider I would be justified in substituting my judgment on a pure question of fact for his and would dismiss this appeal.

Mr. A. Zimmern (Deacons) for Appellant.

Mr. Mills-Owens (J.S.M.) for Respondent.

([1]) (1947) A.C. 484

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 48 OF 1971

(ON APPEAL FROM O.J. ACTION 1915 OF 1970)

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JUDGMENT

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Briggs, J.:

1.  This is an appeal from the decision of a Judge sitting without a jury.

2.  The Respondent is a jeweller. The Appellants agreed to insure the Respondent with London underwriters under an Insurance Cover Note dated July 20, 1970, against loss by theft of any of the Respondent’s stock of jewellery up to the value of $200,000.

3.  The case for the Respondent is that on August 15, 1970, he was robbed of jewellery worth over $300,000. The Appellants refused to pay out under the Cover Note. So the Respondent brought an action against them for $200,000. The Appellants did not deny that the Cover Note was valid. In their defence they put the Respondent to strict proof of his claim and alleged that the jewellery which was the subject matter of the Respondent’s claim was not in the Respondent’s premises at the time of the alleged theft.

4.  After a trial, which lasted for six days, the trial judge found in favour of the Respondent and awarded him the sum claimed, $200,000.

5.  The Appellants appeal against this decision. Originally eight separate grounds of appeal were filed. This was increased to ten at the hearing.

6.  The ninth ground of appeal was that “the learned judge failed to consider what constituted a fraudulent claim thereby wrongfully concluding that he was unable to find any evidence of fraud.”

7.  The Appellants did not plead fraud in their Statement of Defence. However the learned trial judge had this to say in his judgment:–

“it is their defence that the diamonds and jewellery particularised .... were not in the Plaintiff’s premises at the time of the alleged robbery or, alternatively, that if they were so there, they were not stolen. Whilst the statement of defence does not employ the word ‘fraud’ and certainly does not particularise fraud, the whole tenor of the defence is an innuendo that the Plaintiff’s claim is spurious and the robbery a bogus one. I will say at once that I am unable to find any evidence of fraud.”

8.  If a party is basing his case on fraud it must be pleaded and particularised. A famous dictum of Thesiger, L.J., in Davy v. Garrett^([1]) runs thus:

“In the Common Law Courts no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from the facts.”

9.  At the hearing the Appellants were not alleging that the robbery did not occur. They were not putting forward a positive case of fraud. They could not be heard to do so. Their case was that the Respondent had not proved his claim and that the Respondent told lies when giving his evidence. That is, that the Respondent committed perjury. Now, perjury is fraud. To give false evidence in support of a claim under an Insurance Policy is and must be fraud. And I do not see how the Appellants can rely upon such a ground of appeal when fraud was neither pleaded nor particularised in the Lower Court. An application could have been made to amend the defence as soon as the Appellants became aware of the facts on which they would rely to support a charge of perjury. The court will allow an amendment to include an allegation of fraud at an early stage in the trial. The time for such an amendment in this case was when the Respondent left the witness box. It was at that time that the Appellants were in possession of the facts on which a charge of perjury could have been made. That course was not adopted. It is too late to seek to prove the charge of perjury and to allege fraud at this stage.

10.  The case for the Appellant still is that the Respondent has failed to prove his case. Part of this case is that the Respondent and his witnesses are unworthy of belief. A very large portion of the cross-examination of the Respondent and his witnesses was for the purposes of discrediting the Respondent and his witnesses.

11.  In Regina Fur Company v. Bossom^([2]), which was a case with rather similar facts to those of this appeal, Lord Evershed, M.R., said this:

“I think that a defendant – whether he is an underwriter or any other kind of defendant – is entitled to say, by way of defence, ‘I require this case to be strictly proved, and admit nothing’. Where such is the defence, the onus remains throughout upon the plaintiffs to establish the case they are alleging. Where such is the form of the pleading, it is not only not obligatory upon the defendants but it is not even permissible for them to proceed to put forward some affirmative case which they have not pleaded or alleged; and it is not, therefore, right that they should, by cross-examination of the plaintiffs or otherwise, suggest such an affirmative case. The defendants are acting correctly if they follow the course adopted in this case – that is, so to challenge, at each point, and by proper evidence, where it is admissible, and by cross-examination, the case which the plaintiffs seek to make good.

The result, where such is the form of the defence and of the issues raised, is no doubt such that the Judges will watch carefully that defendants, first, do not attempt, by evidence or cross-examination, to establish some affirmative case of which no proper notice has been given by way of pleading to the other side; and second, do not attempt to lead evidence solely directed to the credit of witnesses.

So much, Mr. Marshall naturally and very properly admitted; and he also conceded that, in practice, no doubt sometimes the line is often a little narrow between evidence which is properly directed to challenging the evidence of the plaintiff upon some relevant issue, and evidence which may, upon analysis, turn out to be no more than direct evidence to credit.”

The last paragraph of the above quotation from the judgment of Lord Evershed is particularly applicable to the present case. This is abundantly clear from the transcript of the evidence. I think that it was unnecessary though not wrong of the trial judge to come to a positive finding of “no fraud”. But the passage from his judgment which I have quoted above clearly shows that he was alive to the distinction between evidence which challenges the Plaintiff’s evidence on a relevant issue and evidence going as to credit.

12.  In the circumstances the Appellants cannot be heard to argue ground 9 of their grounds of appeal. 

13.  I will now turn to ground 2 of the grounds of appeal. This concerns certain books of the Respondent. They were referred to as his Bank book and his Cash book. Also exhibited were his Bank statements. A very large part of the cross-examination of the Respondent in the court below was directed to a comparison of items in the Cash and Bank books with items in the Bank statements. It is those answers given by the Respondent which, according to the Appellants, indicate that the Respondent committed perjury.

14.  There were a large number of documents in this case. And bundles of agreed documents were prepared for the trial. Included in these were the books I have referred to above.

15.  Although they come from the custody of the Respondent – they are his books – they were not relied upon directly as part of his case. At the trial they were put in as exhibits by counsel for the Appellants not by the Respondent. However it is right to state that they had been seen by the accountant called by the Respondent as one of his witnesses. These books were very much part of the case for the Appellants and numerous questions were put to the Respondent as to the meaning of various entries. At the hearing of the appeal the Respondent’s answers to such questions were referred to in detail.

16.  The Respondent said at the trial on more than one occasion that the Cash and Bank books had been made up every few days, and not all at one time, or at the end of each month as was suggested by counsel for the Appellants. The trial judge found as a positive fact that the business of the Respondent was a genuine business. But it was not for this reason that this line of cross-examination was pursued, as the learned judge seems to have thought. The purpose of the line of cross-examination was to discredit the Respondent and in addition, to show that he was a man of very little financial substance. The accounts showed that a number of cheques had been dishonoured albeit at a period of some months previous to the robbery. And that this was at a time when the Respondent according to his own evidence had a large sum of cash in his safe.

17.  It was urged that no business man would allow his account to be in such a state that his cheques would be dishonoured, when he had plenty of money in his safe. And that no business man of the standing of the Respondent would lock as much capital up in stock as the Respondent claimed to have done.

18.  Counsel for the Respondent made it quite clear that he did not rely upon these books and the Bank statements to prove his case. His case was based upon the Purchase and Sales Book of the Respondent and upon the invoices which supported the various entries therein. It was pointed out that when giving his answers as to the various items in the Cash and Bank books, the Respondent had before him no documents other than the books themselves, and that the entries referred to various transactions which occurred many months before the trial. Counsel said that this evidence did not go to the root of the case. It was no more than a collateral issue between the parties. He did not consider that it would have been proper or practical to seek for an adjournment, and to try to support every entry in the accounts by other evidence such as paying-in slips, cheque stubs and the like.

19.  I have seen these books and they may be described as incoherent. The theory of counsel as to the correct times at which the Bank book and the Cash book was made up is both ingenuous and attractive. But I agree with counsel for the Respondent. These books were not part of his case, not relied upon by him. Even if they were made up all at once or in one day the matter would not advance the Appellant’s case. The matter is collateral. What is of importance of course is, that if the Appellants are right in their contention, the Respondent is shown to be not telling the truth. I will deal with that matter separately.

20.  The rest of the grounds of appeal can be dealt with together. They are all to the effect that the findings of the judge were against the weight of the evidence.

21.  The trial judge came to positive findings of fact. He believed the version of the account of the robbery given by the Respondent. And he acquitted him of fraud. He believed that his business was being properly conducted that he had the sums of money which he said he had, and that his claim was genuine in substance and in amount. He specifically found that the Respondent made up his books every two or three days.

22.  Central to the case for the Respondent is the evidence of Mr. Kothari, the Respondent himself. The most important witness was the Respondent himself. His evidence takes up ninety seven ages of the transcript seventy nine of which are devoted to his cross-examination. This was of a most searching nature: and covered the whole background of the Respondent as well as his business dealings, the state of his Cash and Bank books being particularly referred to. The trial judge accepted the evidence of Mr. Kothari as being the truth. This finding was clearly based in part at least on the demeanour of the Respondent and his witness, Mr. Li.

23.  At the hearing of the appeal, counsel for the Appellant invited the court to reject the evidence of the Respondent. Apart from the evidence as to the method of bookkeeping adopted by Mr. Kothari counsel for the Appellants drew the attention of the court to other aspects of his evidence. The suggestion was that the trial judge should have had doubts as to the existence of a robbery because the story of the robbery as given by the Respondent is inconsistent with other evidence. The unusual nature of the wounds; a discrepancy in the evidence as to the condition of the cords used to tie up the Respondent; the fact that Mr. Li, an employee of the Respondent, happened to return to the flat at the right time; the fact that his cook boy was in the immediate vicinity of the flat when Mr. Li arrived and so on, should have been sufficient for the trial judge to have had doubts as to the genuineness of the evidence of the Respondent.

24.  The trouble with this line of argument is that the trial judge dealt specifically with all these matters. Thus for example, he dealt specifically with the evidence as to the presence of the cook boy, the question of the knots on the cord, the evidence of Mr. Li and the evidence of the caretaker. And I can find no fault with the manner in which such evidence was assessed. He went further however and made a positive finding of fact that there was no fraud. The trial judge saw and heard the Respondent give evidence and he had ample opportunity to assess the value of his evidence. It is quite obvious from his judgment that the demeanour of the witness was a very important reason for his findings.

25.  It is trite law that an Appeal Court will only upset a finding of fact made by a judge based upon his opinion of the demeanour of a witness in exceptional cases. In a proper case the court will not hesitate to act. [See Yuill v. Yuill^([3])].

26.  The principles on which an appellate court will act were laid down in Watt v. Thomas^([4]). The headnote in that case reads as follows:

“When a question of fact has been tried by a judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to his opinion, because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound. The appellate court is, however, free to reverse his conclusions if the grounds given by him therefor are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved.”

28.  In his judgment Lord Thankerton notes with approval a well known passage from the judgment of Lord Shaw in Clarke v. Edinburgh & District Tramways Co., Ltd.^([5]). This reads as follows:

“In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I – who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case – in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.”

29.  Counsel for the Respondent referred the court among other cases to the case of Gross v. Lewis Hillman Ltd.^([6]). Part of the head-note in that case reads as follows:–

“... That an appellate court could not hold someone guilty of fraud when the judge who saw and heard him acquitted him of it unless the appellate court was convinced that the judge was wrong, albeit that it had doubts about the judge’s finding and since it was not so convinced, the defendants were not guilty of fraudulent misrepresentation.”

30.  Applying those principles to the facts of the present case I do not think that the judgment of the trial judge should be disturbed.

31.  Applying the test suggested by Lord Shaw – sitting here as I am without the advantages of having seen and heard the Respondent give evidence, I am not satisfied that the trial judge was “plainly wrong” when he accepted that evidence. Whatever doubts I may entertain as to that finding are not sufficient to warrant its being disturbed.

32.  I would dismiss this appeal with costs.

A. Zimmern(Deacons) for Appellant.

R. Mills-Owens(J.S. & Master) for Respondent. 

([1]) [1877] 7 Ch. D. at 489

([2]) [1958] 2 Lloyd’s List Law Reports 425 at 428

([3]) [1945] 1 A.E.R. 183

([4]) [1947] A.C. 484.

([5]) [1919] S.C. (H.L.) 35, 37

([6]) [1969] 3 W.L.R. 787 at 789

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 48 OF 1971

(On appeal from O.J. Action 1915 of 1970)

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JUDGMENT

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Huggins, J.:

1.  For my part I would have been sorry to see this appeal decided on a pure point of pleading, but I think Regina Fur Company v. Bossom 1958 2 Ll. R. 428 indicates the rule to be applied in a case where an insurer disputes a claim upon a policy. The general rule is that in the absence of a plea of fraud a defendant is entitled to challenge the evidence adduced on behalf of the plaintiff provided that the challenge does not have the effect of setting up an affirmative case of fraud. What I think the rule amounts to in a case such as this is that it is proper for counsel to suggest that no robbery has taken place and that, even if it has, the assured did not have on the premises the goods which were alleged to have been stolen. That would be proper although, if no robbery had taken place, the assured must know that it has not taken place and therefore necessarily committed fraud when he lodged a claim based on the occurrence of a robbery. However, the allegation that he knew there had been no robbery is implicit from the circumstances and is not an affirmative allegation by the insurer. Similarly, one can challenge the extent of the loss without setting up an affirmative case that the assured knew such a loss had not taken place. The line is obviously a very fine one but it is important because a party ought not to make a positive allegation of fraud unless he has evidence to support it. It would be unjust to allow him to suggest in cross-examination that his opponent has been guilty of fraud when the opponent has had no warning that he will have to meet such an allegation. The learned judge in the court below made it clear that he understood the Appellants to be setting up an affirmative case of fraud. Their counsel has on the appeal sought to persuade us that no such affirmative case had been set up and that, in consequence, the judge approached the case on a wholly wrong basis. We do not, unfortunately, have any note of the submissions of counsel and we are left to deduce the purpose of the questions put to the Respondents in cross-examination. The learned judge said:

“While the Statement of Defence does not employ the word ‘fraud’ and certainly does not particularise fraud, the whole tenor of the defence is an innuendo that the plaintiff’s claim is spurious and the robbery a bogus one”.

From other observations made in the course of his judgment I get the impression that he thought counsel was directly attacking the integrity of the Respondent and suggesting that he had falsified his books in order to support a spurious claim by establishing that his business was genuine. Having read again the shorthand note of the cross-examination of the Respondent I am bound to say that at first sight I find nothing there to justify the suggestion that the Respondent was setting up an affirmative case of fraud. I say “at first sight” because there is nothing in the cross-examination to show that the books of account (as distinct from the stock books) formed any basis of the Respondent’s claim. Most of the cross-examination was directed to an analysis of the books of account. However, examination of the note of the examination-in-chief shows that these books were adduced by the Respondent’s counsel as part of his case and it should have been assumed that they were relied upon in support of the claim. There is no doubt that in cross-examination it was suggested that these books had been falsified and it follows that there was an affirmative allegation of fraud. Indeed, counsel for the Respondent frankly admits that he had (as he now says inadvertently) stated during the taking of the evidence of a witness de bene esse:

“The allegation is fraud here”.

2.  The substantial issue on the appeal is whether we can properly set aside the findings of fact that the robbery took place and that goods valued at a figure in excess of $200,000 were stolen. I have much sympathy with the view expressed by Leonard, J. as to the difficulty of believing the Respondent’s story. While I do not attach much weight to the evidence that the cords were said to be without knots when seen by Inspector Ferrige, the evidence of the wounds on the Respondent has caused me greater anxiety. I have, however, come to the conclusion that the finding of the learned judge ought not to be disturbed. His comment on the fact that Dr. Ong was not given an opportunity to examine the Respondent shows that he appreciated the importance of the evidence as to the injuries. It is, perhaps, unfortunate that Dr. Ong was not called and asked whether he could express any opinion, upon the strength of the photographs and reports, as to whether the injuries were consistent with the story told by the Respondent. He might have said that he could not do so, but then it must be remembered that it is upon the strength of the photographs and reports that we are being asked to say that they were inconsistent with the Respondent’s story.

3.  We were taken through the account books at some length and I might have been more critical of the manner of keeping them than was the learned judge. I would certainly differ from him when he said he was satisfied “that the books were in fact made up by the plaintiff from time to time as he stated in his evidence”. I think the evidence is overwhelming that they were not so made up. Nevertheless, as the learned judge suggests, one-man traders (and, indeed, others) are often lax in their book-keeping and the fact that the books were made up at a later date does not necessarily indicate that they were made up with fraudulent intent. I would agree that the books do not show that the Respondent was not “carrying on a genuine business”, but it seems to me that they do raise a doubt whether a trader with such unbusiness-like methods could have obtained so large a stock of gems, even allowing for credit. The learned judge had the advantage of seeing the Respondent in the witness-box over a period of three days and formed a favourable impression of him. Whatever he thought of the books it was still open to the judge to believe the Respondent’s explanation that all his available cash was not in his bank accounts and his explanation of the many dishonoured cheques.

4.  As to the evidence relating to the circumstances of the alleged robbery I think the learned judge was not bound to attach weight to the evidence of the caretaker that he did not see anyone dressed like the alleged assailants going up or down or to assume that the cook-boy was seen in the lift at the ground floor within a short time of his leaving the flat to go to the market. But what is the effect of the Respondent’s giving false evidence about the time of making up the books? Briggs, J. has said that perjury is fraud. Undoubtedly it is fraud to seek the support an insurance claimed with perjured evidence which has some relation to the claim itself (see Reg. v. Boynes (1843) 1 Car. & K. 65 where the assured produced a forged certificate) but if the books in the present case were accurate does it matter when they were made up? In Yuill v. Yuill 1945 1 All E.R. 183 Lord Greene, M.R. said at p.189:

“I may further point out that an impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the whole of the evidence of the witness in question. If it can be demonstrated to conviction that a witness whose demeanour has been praised by the trial judge has on some collateral matter deliberately given an untrue answer, the favourable view formed by the judge as to his demeanour must necessarily lose its value.”

However, a trial judge’s view does not necessarily lose all its value and one must bear in mind the function of this Court upon an appeal by way of re-hearing: see Coghlan v. Cumberland 1898 1 Ch. 704. The collateral issue upon which I believe that the Respondent lied was itself collateral to the collateral issue whether the business he carried on was “genuine”. I have considered the evidence with the most anxious care and am not persuaded that the learned judge came to a wrong conclusion upon the main issue of fact. Accordingly I also would dismiss the appeal.

23rd November, 1972.