Chulam Ahmed and Others v. R.

CACC000018/1947

IN THE SUPREME COURT OF HONG KONG

APPRIJATE JURISDICTION

CRIMINAL APPEAL NO. 18 OF 1947

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Coram: Mr Justice T.J. Gould, Additional Judge

Date of Judgment: 20 August 1947

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JUDGMENT

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1. This appeal was based on two grounds:-

1. That the verdict was against the weight of evidence.

2. That the magistrate misdirected himself in law as to the onus of proof.

2. As to the second of these, appellant submits

(a) That the Magistrate treated certain evidence of irregularities of the accused as being of the essence of the matter, and their failure to prove the innocent nature of these irregularities to his satisfaction as ground for conviction. The passages relied upon occur mainly on page 69 of the judgment.

As to this, I find, reading the judgment as a whole, that the Magistrate treated these matters as evidence of the alleged conspiracy and relied upon other evidence as establishing the extortion, demand and menaces. As to the question of onus, the Magistrate merely chose to believe the evidence of the prosecution as explaining the irregularities, in preference to that of the defence. He was porfectly entitled to do so.

(b) That in spite of the contradictory nature of the evidence given by the witnesses for the prosecution the Magistrate chose to believe their evidence that a demand was made.

3. This submission is obviously not acceptable as it does not touch upon direction or onus but is merely a question of weight. Upon this ground then the appeal fails.

4. On the submission that the decision was against the weight of evidence it cannot be denied that the evidence for the prosecution. The great majority of these are upon a collateral matter and are explainable as showing unwillingness. On the part of Mok Kuen to accept the role of organizer of the gambling school and a desire on the port of others to shield him. There are however other inconsistencies which go closer to the root of the matter which is the demand for $30.

5. The position of an appellate Court on appeal from a Judge alone has been recently re-defined by the House of Lords in Watt V. Thomas 1947 1AER 582. The headnote opens:- "Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate Court which is disposed to come to a different conclusion on the evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the judge (s conclusion."

6. On consideration of the case before me, I think that the advantage enjoyed by the Magistrate of seeing and bearing the witnesses was a particularly decided one. The witnesses were numerous and the cross examination was long and rigorous. The Magistrate obviously gave the case close and detailed attention. The contradictions in the Crown evidence cannot have escaped his attention and indeed are referred to generally in his judgment; in convicting the accused in spite of them he must have relied upon his observations and impressions of the various witnesses, who included of course the accused themselves. Whatever may be the conclusion that this Court might have reached from a mere perusal of the record, the Court cannot might have reached from a mere perusal of the record, the Court cannot say that the advantage enjoyed by the Magistrate could not justify his conclusion.

7. The appeal therefore fails on both grounds.