Kong Woon Man v. The Queen
Read the full judgment text of CACC 152/1968 on BabelCite. This Court of Appeal judgment was delivered on 11 June 1968.
1. We are dealing now with an application made on behalf of the appellant to this court to hear fresh evidence under the provisions of the Criminal Procedure Ordinance, Section 81, sub-section (9) (c).
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CACC000152/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 152 OF 1968 -----------------
----------------- Coram: Hogan, C.J. and Pickering, J. Date of Judgment: 11 June 1968 ----------------- DECISION ----------------- 1. We are dealing now with an application made on behalf of the appellant to this court to hear fresh evidence under the provisions of the Criminal Procedure Ordinance, Section 81, sub-section (9) (c). 2. Although we have had no affidavits setting out the nature of the evidence which it is now sought to adduce, counsel has produced to us two documents. One is a letter written by the appellant to a Mrs. Elliott, in which he simply states that he did not commit the crime of which he has been convicted and the other is a lengthier statement setting out in some detail his account of what occurred on the 7th of February, and also setting out the details of what he claimed to be doing on the 2nd of February and the 4th of February, 1968, as well as certain details about what he alleged happened when he was questioned by the police. 3. In support of his application for the admission of evidence of the kind indicated, counsel for the appellant has referred us to the case of Robinson v. R.(1). In that case a letter which had been written by the accused after conviction was admitted in evidence by the Court of Appeal. The letter was a document of a very different nature from that to which counsel for the appellant has made reference in the present case. It was a letter written by the appellant from prison in which he admitted having committed the offence of which he had been convicted, but advanced certain reasons for having done so. Mr. Muir, as he was then, in seeking the admission of the document, drew attention to Section 9 of the Criminal Appeal Act, which contains provisions similar to s.81(9) of our Criminal Procedure Ordinance, and to the fact that the appellant in his grounds of appeal, claimed that the decision in the lower court was against the weight of evidence. Apparently the argument was that the appellant could not possibly sustain this ground of appeal, in that he had, as his letter indicated, committed the crime in question. Subject to the appropriate safeguards, an admission by an accused person is normally admissible. Counsel has been able to produce no case in which a Court of Appeal has ever entertained a letter of the kind now put before us, where the appellant merely repeats subsequently the allegation or contention of innocence which he made when he pleaded not guilty in the court below. The letter, counsel for the appellant says, would be put in as showing consistency of conduct by the appellant in that he is maintaining the same attitude he maintained when he pleaded not guilty; but, apart from other objections, it is not his conduct or attitude at the trial that is in issue. The letter is, of course, purely self-serving and we doubt if it even falls within the accepted categories of what is admissible in the course of criminal proceedings at first instance. We can certainly see no reason for admitting it as further evidence on appeal. 4. Turning to the evidence which counsel would seek from the appellant, if he were allowed to give evidence before this court, counsel has directed our attention to the decision in the case of R. v. Rose(2). In that case, counsel for the appellant sought to call the appellant before the Court of Appeal, on the ground that counsel having, in exercise of his discretion, decided not to call the accused at the trial had not expected the judge to comment so strongly on this, that his client now wished to tell his own story, and that counsel wished to call him for that purpose. Mr. Justice Bray, giving the decision of the court, which consisted of himself, Avory J. and Sankey J., as he then was, said:-
And he quoted for that proposition the cases of Malvisi(3), Rubens(4), Caldwell(5), Trevarthen(6), T.E.V. King(7)and Lireak(8). He went on to say:-
5. Counsel has been unable to produce any direct authority on the other side but he claims to distinguish this case of Rose(2) on two grounds, primarily on the ground that the accused in that case had the benefit of legal advice and that it was the legal adviser who, according to the report, decided not to call the applicant at the trial. He says that, in the present case, the accused did not have the benefit of legal advice and that, in making up his own mind not to give evidence in the court below, he may have been influenced by the fact that he had given evidence on the two "voir dires", which had taken place in order to determine whether previous statements made by him were or were not admissible, and his evidence had not been believed by the trial judge on those two voir dires. 6. Counsel's further argument for discounting the value of Rose(2) in the proceedings before us is that the section on which he relies quite clearly indicates that the court can hear the evidence of any witness, including the evidence of an accused, on appeal. 7. He says that it is not proper, in these circumstances, for this court or any other court, to introduce a rule which runs counter to the provisions of the section itself. It may, however, be noted that Mr. Justice Bray did not say that the courts would never hear an appellant; he said that only in very exceptional circumstances would the courts hear an appellant who had declined to give evidence in the court below. 8. Counsel in further support of his contention that Mr. Justice Bray's proposition should not govern the proceedings in the present case, directed our attention to the case of R. v. Parks(9), which counsel contends lays down the general rules applicable to the admission of further evidence on appeal. He says that it is to these general rules we should look in determining this application. According to the headnote, the court in that case, held that it would only exercise discretion under Section 9 of the Criminal Appeal Act, 1907:
In that particular case, applying these criteria, the court did admit the evidence. 9. It is clear from these four requirements that the first, the requirement that the evidence was not available at the trial, presents a formidable obstacle to the appellant in the present case. However, counsel for the appellant, in his very pertinent argument on the point, says that he can satisfy that particular requirement, because, when the appellant was asked in the court below whether he wished to give evidence, and when his rights were explained to him, the right either to remain silent or to go into the witness box and give evidence or make a statement from the dock, he replied, 'I am not feeling well. I shall keep quiet and I leave everything in the court's hands,' to which the court replied, 'You elect to remain silent?', and the accused said, 'Yes'. The case was then adjourned - that was the 16th of March, which was a Saturday - to the 18th of March, a Monday, for decision. Counsel contends that these words, 'I am not feeling well', indicate that the appellant did not feel up to giving evidence on that day, and that, in effect, is the same thing as saying that the evidence was not available. 10. Counsel for the Crown seeks to meet this argument by saying that this appellant had earlier in the trial secured an adjournment of seven days on the strength of a medical note to the effect that he was not well and that he would not be physically fit to attend the court for seven days. That was on the 6th of March, and on that day the trial was adjourned to the 15th of March, when the parties appeared before the court and the proceedings took their normal course. Counsel says it is quite clear from the record of what then occurred that the accused was apparently quite well at the time, asking a number of questions of the witnesses who gave evidence against him. It is also apparent, counsel says, that he knew perfectly well that if he was unwell he could seek medical assistance, and could obtain an adjournment for whatever time was appropriate. The fact that he asked for no adjournment at that time and merely made this brief passing reference to not feeling well could not, in these circumstances, counsel argues, be taken as shown that he was unable to give evidence at that particular juncture. 11. It seems to us that in a matter of this kind we must rely on the judge to ensure that matters proceed in a manner appropriate to do justice to both parties, and that, in the absence of an indication to the contrary, we can assume this responsibility has been properly discharged. We think that if the judge had any anxiety at all as to the state of the accused's health, he would have given effect to that anxiety. We do not think we would be justified in holding, merely from this brief passing reference in the accused's statement to not feeling well, that the evidence which the appellant's counsel is now seeking to put before us in the Court of Appeal, could not have been available at that time if the accused had wished to give it. 12. This case of Rose(2) does not appear to have been referred to in any subsequent cases, but it is still quoted, although decided as long ago as 1919, in Archbold's Practice and Pleading as an authority on this point. Moreover the reasons which were given by the Court of Appeal in England in that case seem to us to be cogent reasons. If we were to permit people who have elected not to give evidence in the court below to come forward and give evidence to the Full Court on the grounds advanced in the present case, and to re-open the case by giving fresh evidence in the appellate court, we would in effect be transferring, without adequate reason, an important part of the trial from the lower court to the appellate court. We see no reason in this particular case to depart from what has been almost an invariable practice of the courts, both in England and in Hong Kong; consequently we refuse this application. Representation: Oral decision reduced into writing. (1) XII C.A.R., p.226 (2) 14 C.A.R. p.14; (3) 2 Cr. App. R. 152, 251, 1909 (4) 2 Cr. App. R. 167, 1909; (5) 6 Cr. App. R. 151, 1911; (6) 8 Cr. App. R. 97, 1912; (7) 10 Cr. App. R. 44, 1914; (8) 10 Cr. App. R. 264, 1914. (9) (1961) ...(illegible) W.L.R. p.1484 |