Case Detail

CACC000302A/1984

Headnote

Hostile witness. It is for the jury to consider the evidence of a hostile witness, subject to a proper warning from the judge, when necessary, as to the weight, if any, to be attached to it.

Identification evidence: Impropriety of asking a witness as to the degree of sureness or certainty as to his identification.

IN THE COURT OF APPEAL

Criminal Appeal

No. 302 of 1984

BETWEEN

	The Queen
	and
	YIP Moon-ting (D1)
	MA So-keung (D3)

______________

Coram: Hon. Yang Silke & Barker, JJ. A.

Date of hearing: 30th October, 1984.

Date of delivery of judgment: 13th November, 1984.

___________

JUDGMENT

___________

Barker, J. A. :

1. On the 25th November, 1983, a van loaded with approximately 6502 Seiko wrist watches worth over $700,000 was stopped by robbers. The occupants of the van were held captive in the back of the van by a man holding a pistol like object. The van was driven to a mountain side where the watches were removed to another vehicle, and the driver and his two assistants were left in the back of the van, one of them being bound; and the other two handcuffed, each to the other.

2. The lst Applicant (D1) and the 2nd Applicant (D3) were convicted of robbery and were each sentenced to 8 yeas' imprisonment. The second Defendant was acquitted.

3. The prosecution's case against Dl depended to a great extent on the evidence of one YIP Kip-sun. This witness had given a written statement to the police, but when he came to give evidence he resiled from it to such an extent that the trial judge ruled that he was to be treated as a hostile witness, and therefore the prosecution was at liberty to cross-examine him, an opportunity which was gratefully accepted. Under such cross-examination, Yip's previous statement, inculpating Dl, was put to him and he agreed that it was correct. Obviously, therefore, he had given contradictory evidence on oath.

4. It was sought, on behalf of Dl, to rely on Reg. v, Golder⁽¹⁾. In that case a witness had given a sworn deposition before the examining magistrate, inculpating the accused, but when she came to give evidence at the trial, she gave totally different evidence,exculpating the accused, a stance which she maintained. Lord Parker said at p. 1172 -

"In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act."

5. In other words what was being said in Golder's case, and in the later case of Reg. v. Oliva⁽²⁾, when a witness gives evidence at the trial inconsistent with a previous statement, sworn or unsworn, the proper direction to a jury is that the witness's evidence should be totally disregarded.

6. The situation in Golder's and Oliva's cases was different from that in the present case. There, the witnesses at the trial maintained their contradiction of their previous statements. Here he did not.

7. In Reg. v. Pestano⁽³⁾ reported (surprisingly) only in 1981 Crim. L. R. 397, where a hostile witness in part admitted the truth of a deposition given by him in another (but relevant) case, which deposition was contrary to his evidence in the instant case, the Court of Appeal held that his evidence was for the jury to consider subject to a proper warning from the judge as to the weight, if any, to be attached to it.

8. Pestano's case followed a decision of the Australian High Court in Driscoll v. The Queen⁽⁴⁾. In that case, Barwick C. J. said at page 734 -

"The remarks of the Court of Criminal Appeal In R. v. Golder are not merely obiter, but, in my opinion, unwarranted in law when they say that a jury must be told that a person who is shown to have made a prior unsworn (sic) inconsistent statement should be regarded as unreliable in relation to the sworn evidence which has been given."

9. Gibbs J. at p. 740, after citing Lord Parker's dictum in Golder's case, said,

"The whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. ......... In some cases the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. ...... It cannot be accepted that in cases where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable."

10. We respectfully agree with these observation in Driscoll's case. Provided, when necessary, the jury is warned of the dangers of accepting the hostile witness's evidence, it is a matter for the jury to assess what weight, if any, they give to it.

In the present case, the trial judge used such phrases, as regards Yip's evidence, as -

"But let me make it clear to you, his credibility has been seriously damaged, seriously impeached."

and,

"The basis on which the witness was cross-examined was discrepancy between his evidence and his statement and if one allows a witness to be impeached or discredited, then the amount of reliance you should put on his evidence after that is very limited indeed."

11. No warnings could have been more forthright or explicit. In our judgment the direction of the judge was correct. He was right to leave the matter, as he did to the jury, and to leave it to them to decide what weight they should give to Yip's evidence. Clearly they came to the conclusion that, taking all things into consideration, it was reliable. They were entitled so to conclude.

12. We add, for the sake of completeness, that there was some, albeit slight, circumstantial evidence, but it was conceded by the Crown that, if Yip's testimony had totally to be disregarded, such evidence was not sufficient to found a conviction.

13. We turn then to consider the case of the 2nd Applicant (D3). Here the case for the prosecution rested upon three grounds: -

	(a)	the identification of D3 by CHIU Tai-chuen,
	(b)	an oral admission by D3 to the following effect - "Sir, re. the Tsuen Wan case I committed it. The gun I used was only a toy. This key is to my locker."

and,

(c)

The circumstantial evidence that when the police officer who had found the key on D3 took it to the relevant locker, it was possible with it to open the locker and in it was found a toy pistol and a key which fitted the handcuffs in which two of the occupants of the van had been locked.

14. The complaint is made as to the evidence of identification. This, so the argument runs, is not a Turnbull situation, in which the identifier who has a fleeting glance avers that he is sure that the person identified is the accused. In the present base, Chiu, it is said, made no sure identification at all.

15. This argument is based on a number of answers given in chief, to the Court during the course of the cross-examination and in re-examination by Chiu.

16. In chief he was asked -

Q. "Were you quite sure when you pointed this person out that he had in fact been involved in this robbery?"
A. "Yes."
During the course of cross-examination the Court asked-
Q. "You are being asked how sure were you at the parade the man at No. 4 was the man who had claimed to be a Customs man at the time of the robbery. Now that is simple enough. How sure were you?"
A. "At the time when I identified him at least 60 to 70 % sure."

And in re-examination,

Q. "When I asked you in examination in chief if you were sure you gave the matter some careful consideration and you said you were sure, didn't you?"
A. "Yes, I was very sure and I had an impression of him but if you ask me to tell you 100% then I would not be able to do so."

17. The question by the Court was, to say the kindest of it, unfortunate. A witness is either sure or he is not. One cannot be 60 to 70 % sure. It is as bad as the error which so frequently creeps into summings up where Judges time and again direct a jury that the prosecution does not have to prove guilt with mathematical certainty - a direction which is patently confusing.

18. Were this evidence to stand unsupported, this Court would have no hesitation in accepting Mr. Alderdice's submission that it was insufficient to found a conviction. But it does not. It is supported by an oral confession - which in itself would be sufficient to uphold the conviction - and by the strong circumstantial evidence.

19. For the foregoing reasons, the applications for leave to appeal against conviction are refused.

(1) (1960) 1 W. L. R. 1169 CA

(2) (1965) 49 Cr. App. R. 298 at p. 311

(3) (1981) Crim. L. R. 397

(4) (1977) A. L. J. R. 731

Representation:

Mr. G. Alderdice (D. L. A.) for D1 & D3 on conviction only.

D1 in person on sentence.

Mr. C. Young for Crown/Respondent.

CACC000302/1984

Cr. App. 302/84.

Road traffic - driving while disqualified

A charge which avers that a person drove while disqualified "on divers dates" between two dates, is bad for duplicity, but no miscarriage of justice had occurred.

The Commissioner for Transport is the only authority empowered to issue licences to drive on the roads of Hong Kong (.S. 5 of the Road Traffic Ordinance and the Road Traffic (Driving Licences) Regulations) and therefore if a person is disqualified from driving all classes of vehicles (government vehicles are a class under reg. 3(j) of the Regulations) he may not drive even if he is in possession of a government driving permit issued under Government General Regulations.

Decision of magistrate affirmed

IN THE HIGH COURT	Criminal Appeal
	No. 302 of 1984

BETWEEN	THE QUEEN
	and
	CHEUNG Chak-sing	(Appellant)
	__________

Coram: Fuad, J.A. (Sitting as an additional Judge of the High Court)

Date of hearing: 19th June, 1984

Date of judgement: 25th June, 1984

___________

JUDGMENT

___________

Fuad, J.A. :

1. The appellant was convicted on the 17th April 1984 by a Magistrates' Court of driving whilst disqualified c./s. 25 of the Road Traffic Ordinance - Cap. 220 ("the Ordinance") and sentenced to pay a fine of $2,000 and to one month's imprisonment, suspended for 12 months. He was disqualified from driving all classes of motor vehicles, also for 12 months. From the conviction he now appeals to this Court.

2. It was an unusual case. The appellant was a government driver who had been issued with a document called a "HONG KONG GOVERNMENT DRIVING PERMIT" on the 22nd March 1982.

3. He also had what I will call an ordinary driving licence, valid until the 6th April 1983, covering the following classes of vehicles - 1 (private cars), 2(goods vehicles under 2½ tons), 8(goods vehicles over 2½ tons) and 16(government owned vehicles).

4. It was admitted that on the 21st April 1983 the appellant had pleaded guilty to three offences (including driving a taxi without a valid licence and driving whilst uninsured) and had been fined and disqualified from driving all classes of vehicles for one year from that date.

5. The particulars of offence of the charge with which we are concerned was worded thus -

"CHEUNG Chak-sing, you are charged that, being a person disqualified from holding or obtaining a driving licence, on divers dates between the 21.4.83 to 10.10.83, in this colony, while you were so disqualified, you did drive a motor vehicle, namely a government vehicle (crew bus ) bearing registration number AM4624 on roads in the New Territories area."

6. It was conceded by Mr. Halley for the Crown that the appellant's complaint that the charge was bad for duplicity was well founded, although he submitted that in fact no miscarriage of justice had occurred. I will return to the effect of the error made in drafting the charge later but where the offence is not a continuing one, an averment which charges an offence as having been committed "on divers dates" is patently bad for duplicity (ARCHBOLD 41st Edition, 1 - 57).

7. Mr. Halley also had to concede that since the information for the present charge was laid on the 6th April 1984, any occasion upon which the appellant might have driven whilst disqualified before the 6th October 1983 could not be the subject of a prosecution by virtue of the six months' time limit imposed by S. 26 of the Magistrates Ordinance, Cap. 227. And so the appellant should have to face allegations relating only to the period the 6th to 10th October 1983.

8. Another ground of appeal was that "there was no evidence that the Hong Kong Government Driving Permit was not a document licensing the appellant to drive government vehicles and the learnod Magistrate should therefore have found that it was doubtful if the charge had been proved".

This point was raised at the trial and in his reasons the Magistrate made this finding -

"That form G.F. 8 is a subservient authority to the general Driving Licence. That accordingly when defendant was disqualified from driving all classes of vehicles for one year, the permission continued in Form G.F. 8 became null and void".

9. I have no doubt that the Magistrate was right on this point. Section 5(1)(a) of the Ordinance gives the Governor in Council power to make regulations to provide for the licensing of drivers. Section 5(4) of the Ordinance provides that no person shall drive a vehicle on a road unless he is the holder of a driving licence in respect of a vehicle of the same class as the vehicle he is driving. In S. 2 of the Ordinance, the expression "driving licence" is defined as meaning "a licence issued in accordance with the provisions of regulations made under Section 5"; such regulations have been made - the Road Traffic (Driving Licences) Regulations.

10. The Hong Kong Government Driving Permit held by the appellant states that it is "issued in accordance with Government General Regulations". Mr. Halley was not able to refer me to the particular regulation in question. What is perfectly plain, however, is that the only authority empowered to issue licences to drive on the roads of Hong Kong is the Commissioner for Transport (see reg. 6 of the Road Traffic (Driving Licences)Regulations). And so once the validity of a driving licence is affected by an order of disqualification from driving all classes of vehicles, a person may no longer drive during the relevant period, even if he is in possession of a Hong Kong Government Driving Permit, for "government vehicles" are expressly made a class under reg. 3(j).

11. The evidence led by the prosecution in seeking to prove that the appellant had beer driving whilst disqualified was given by two foremen of the New Territories Services Department. Mr. CHEUNG Po-kwok was in charge of assigning work to drivers from the 21st April to the 1st June 1983 and Mr. HO Chi-sum from the 1st June onwards. Both said that the appellant was the driver of government vehicle AM4624. Mr. Ho said that the appellant had ceased to be one of their drivers as from the 10th October 1984 when, it appears, the department first learned that the appellant had been disquealified. Since we are no longer concerned with the period covered by Mr. Cheung's evidence, Mr. Ho's testimony is important. He said that when he had told the appellant he could no longer drive, he had said ''It is really that I can't drive". He produced two log books stamped with the number AM4624. He said he knew that the appellant had been driving "by the log books", for they contained entries for each day the appellant had taken the vehicle out. The defendant had also signed in on retorting for duty and taken the keys of the vehicle. He added : "He would take (the keys) from my office. I saw him take the key and go with the vehicle. He drove it away. I don't mean I witnessed him driving away every day. I saw him when he walked past my office to the vehicle. Yes, I saw him some days and not others. No I did not see where he went with the vehicle. I last saw the vehicle in the depot. Every day I checked the depot and all the vehicles had been taken onto the road. None remained in the depot. " He produced the log books which are now before me. The only cross-examination addressed to him related to the Government Driving Permits.

12. Mr. Gunston (who also represented the appellant in the lower court )urged upon me the proposition that since the log books were in Chinese and no official translation had been produced, they should have been ignored by the Magistrate, and I, too, should ignore them. He cited a number of authorities to me on the subject.

13. Certainly the name of the driver is in Chinese characters, as are the "details of journey" on each right hand page. But there is much that is in English. On the left hand pages of the log books, there are the following columns in English : Date - time (out) - time (in)- milometer (out) - milometer (in) - miles run. The relevant log book shows that-

	(a)	on the 6th October 1983 five journeys were made by AM4624 between 8:15 a.m. and 3:45 p.m., total 40 miles;
	(b)	on the 7th October eight journeys were made between 8:15 a.m. and 3:20 p.m., total 21 miles;
	(c)	on the 8th October, seven journeys were made between 8:15 a.m. and 12:45 p.m., total 41 miles;
	(d)	on the 10th October (the 9th October was a Sunday) five journeys were made, total 20 miles.

14. The apellant elected not to give evidence at the trial. He was, of course, fully entitled to take that course and let the prosecution prove its case if it could. But there was unchallenged evidence that the appellant was the driver of AM4624 from the 21st April to the 10th October 1983. There was no objection to the production of the log book to which I have referred and it seems to me to be wholly unrealistic to ignore its English contents regarding the 6 - 10th October 1983. Everyone knows what a log book is, and as a matter of common sense it must be very cogent prima facie evidence that the vehicle was being driven by its only driver on the occasions recorded. It would have been so simple for the appellant to have rebutted this prima facie evidence.

15. In his reasons the Magistrate found that the evidence of the prosecution witnesses proved that the appellant had driven government vehicles on various occasions between the dates specified in the charge. This was because neither he, nor the prosecutor (who was responsible for the correctness of the charge), nor the defendant's solicitor, had spotted the duplicity. But I have no doubt at all that on the state of the evidence at the end of the trial, had the Magistrate directed his attention only to the 6th, 7th, 8th and 10th of October 1983, he must have found that the appellant had driven on those dates, while he was disqualified.

16. There was so much wrong with the charge sheet that I have carefully considered whether the appeal should be alloyed on that ground alone. If an ordinary driver had been facet with a charge covering some 200 days the position might well have been different, but here was a driver who kept a log book and in all the circumstances I am fully satisfied that he was neither prejudiced nor embarrassed, and no miscarriage of justice has occurred.

17. Before taking leave of this case, I wish to state that I can well understand confusion arising in the mind of an ordinary driver over the status of a Government Driving Permit, and I hope the relevant authorities will give some attention to the matter. I would interpolate here that it may well be that the Magistrate appreciated this when he imposed comparatively lenient penalties. Perhaps the Government Driving Permit should contain an endorsement that it is only valid while a valid driving licence issued under the Road Traffic Crdinance is in force. And a government driver might be asked to sign something on being issued with a permit to acknowledge that he realizes that it will have no validity if a Road Traffic Ordinance driving licence is not also held.

18. For the reaons I have given, I dismiss the appeal.

	(K.T. FUAD)
	Justice of Appeal

Representation:

THE QUEEN v. YIP MOON-TING AND ANOTHER

Related cases with same parties

Files (2)

Q.	"Were you quite sure when you pointed this person out that he had in fact been involved in this robbery?"
A.	"Yes."

Q.	"You are being asked how sure were you at the parade the man at No. 4 was the man who had claimed to be a Customs man at the time of the robbery. Now that is simple enough. How sure were you?"
A.	"At the time when I identified him at least 60 to 70 % sure."

Q.	"When I asked you in examination in chief if you were sure you gave the matter some careful consideration and you said you were sure, didn't you?"
A.	"Yes, I was very sure and I had an impression of him but if you ask me to tell you 100% then I would not be able to do so."