Attorney General v. Yuen Man Pan
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CACC000192/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 192 OF 1969 -----------------
----------------- Coram: Hogan, C.J., Blair-Kerr, J. & Briggs, J. Date of Judgment: 17 June 1969 ----------------- JUDGMENT ----------------- 1. This is another appeal where it is alleged that the judge in the court below acceded too readily and erroneously to a submission of no case to answer with its attendant problems of delay, inconvenience and expense. 2. The prosecution arose out of a case where the accused, who was a witness against an immigration inspector charged with corruption, gave evidence differing significantly from an earlier statement made by him to the police. 3. He subsequently faced two charges: one of obtaining money by false pretences, the other of perjury. We do not have the full details of the evidence before us but, from the case stated, it appears that at the trial of the inspector, he made a statement on oath indicating that he had falsely represented to the father of a visitor that he had paid the sum of $100 to the immigration inspector, when no such payment had, in fact, been made. There was also produced in evidence statements from him made to the police before the trial and after the trial saying that such a payment had been made. 4. At the close of the case for the prosecution, the trial judge acceded to a submission that there was no case to answer on either charge. 5. The position arising when such a submission is made was the subject of a practice direction by the Lord Chief Justice of England, Lord Parker, when he had with him in the Queen's Bench Divisional Court Mr. Justice Ashworth and Mr. Justice Fenton Atkinson on ...(illegible) the 9th February, 1962 (see (1962) 1-All E.R. p.448). He said:-
6. Crown Counsel contends that this direction indicates the correct approach and counsel for the accused has not questioned that assertion although he maintains that the judge in the court below did not depart from it. 7. For our part we think that the practice direction correctly states the principles which a court should follow when dealing with a submission of no case to answer. 8. In giving his reasons for acceding to the submission, the judge said that the prosecution depended on the accused's own statement and that apart from his evidence at the trial there was
9. This is the only reason advanced by the judge for his decision on the first charge and the prosecution contends that it reveals an erroneous approach and an approach quite different from that reflected in the practice note above. 10. The prosecution contends that there is no rule requiring corroboration of an accused's confession, whether made, as in this case, in a sworn statement before the court or made extrajudicially, and that the judge misdirected himself by seeking such corroboration and in making its absence the foundation of his decision. Furthermore, the prosecution says, the judge appears to have been putting to himself the question whether at that stage, on the evidence, he would or would not convict the accused - more particularly by his use of the word "conclusive" - when the proper question was whether, acting reasonably, he might do so. 11. We are satisfied that, in dealing with the charge of false pretences, he judge appears to have erred through failing to apply the proper test, which was not whether he would convict but whether he had material before him on which he might, when the time came for making that decision, convict the accused, and in treating the absence of corroboration as something more than the absence of an element which could have been useful and helpful to the judge in reaching a conclusion but which was not essential. 12. For his decision that there was no case to answer on the perjury charge, the judge has given more numerous reasons. 13. The particulars of the charge alleged that the accused had falsely affirmed that on the 8th August, 1968, at Kai Tak Airport, he offered a yellows card and a passport containing the sum of $500 to the Inspector ...(illegible) nd it appears that his statement to the police contained a corresponding averment. In his evidence in court he said he paid the $500 to the Inspector on the 9th August, 1968 at some place outside the Airport when the accused was in his car. The judge said he was not satisfied that the variation was vital. 14. The particulars of the charge also referred to the affirmation by the accused, when giving evidence, that he did not pay $100 to the Inspector. The learned judge said the only evidence to show this was untrue were the statements by the accused before and after the trial that he had made such a payment. The judge found that the first statement was taken, without caution, at a time when the accused was in custody on another charge, that the statement covered the charge for which the accused was detained and, consequently, the absence of a caution was contrary to the Judges ...(illegible); moreover, he was promised by a detective that it would not be used against him. 15. The judge said the prosecution was "in the same moment" alleging, in regard to the false pretences charge, that the evidence in court was true and, in relying upon the earlier statement, they were breaking the promise made to the accused that it would not be used in any proceedings against him. This, the judge said would be contrary to the principles of fairness which the judge regarded as applying in our courts. He added that it was "accomplice evidence", obtained under circumstances which were far from guaranteeing its truth, and he could not regard it as "more likely to be true than any other statement made by (the accused) on the same subject". 16. Turning to the statement made after the trial, the judge said this was also taken when the accused was in custody and at a time when he was conscious of having offended authority in that he was deemed a hostile witness in court; that, on leaving the court, he was charged with false pretences and that it was "not surprising that he denied the charge by claiming that he had paid the $100 to Inspector Yeung, and that he should attempt to explain why he had contradicted his proof". 17. The judge, having said that he could not rely on the statement as pointing to the truth, continued:-
18. We turn first to the judge's statement that the prosecution was acting unfairly in introducing the accused's 2nd extra-judicial statement because the officer who took it gave an undertaking that it would not be used in any proceedings against him, although this observation does not seem to have led the judge to exclude the statement as inadmissible. 19. Quite apart from any question as to whether such an undertaking could make the statement inadmissible or justify a court in ignoring it (see cases collected in Roscoe's Criminal Evidence, 16th Ed., p.47), it would appear possible, from the case stated, that the undertaking should be regarded as extending only to the use of the statement in a prosecution of the accused for any offence disclosed in it, and not as an undertaking that the statement would not be used for the purpose of showing that a subsequent statement made by the accused on oath in conflict with the earlier statement was untrue. As disclosed in the case stated, we do not think that the undertaking should necessarily be construed as relating to future offences and as conferring on the accused any measure of immunity in regard to its use in the prosecution of such offences. Consequently, we think that the comment on the use of this statement may have been mistaken. 20. Returning to the recapitulation of the judge's reasons as a whole, at no point does he appear to have put to himself the question or test set out in the practice note already mentioned and, in his decision on the 2nd charge, as with the charge of false pretences, he appears to have dealt with the matter as if he was facing the question which falls to be decided only when the evidence in the case as a whole has been completed. 21. Counsel for the accused has, however, argued that irrespective of whether the judge in the court below put to himself the correct question or test he was undoubtedly correct in ruling that there was no case to answer because of a generally accepted principle that where, on a perjury charge, nothing more is presented than evidence of two contradictory statements a conviction cannot follow. 22. Putting on one side the question of whether this argument was open to the accused on the case stated, since the judge did not expressly or by clear implication rely upon it, we think it desirable to examine this argument even though it is not clear from the case stated whether the evidence given in the court below, the full details of which are not available to us, could properly be described as indicating merely a contradiction without providing any adequate indication which statement is untrue. 23. Counsel has referred us to four cases which lend a measure of support to the proposition above stated and would exclude any argument that, from the point of view of simple common sense, it should be sufficient, on a charge of perjury, to show that an accused has sworn two statements which, in a material particular, plainly contradict each other because he must, in the circumstances, have committed perjury and that it is not necessary to carry the enquiry further and establish which of the statements is untrue, any more than that it should normally be necessary to establish which blow actually caused the death, when a man has been killed by two blows, struck by the same assailant, each of which could have been mortal. 24. In three of the cases, the report refers to a direction or observation made at first instance. The first is Mary Jackson's case,(1), where Holroyd, J., is reported to have told the jury that:
25. The next was Reg. v. Wheatland(2), where Gurney, B., rejected counsel's argument based on notes to the case of R. v. Harris(3): that a contradiction if properly charged would be sufficient, and went on to direct the jury:
26. In the later case of Reg. v. Mary Hughes,(4) Tindal, C.J., in the course of the trial, when mention was made of an indictment for swearing contradictorily on two different occasions, said:
27. These decisions at first instance were reviewed in the later and more authoritative decision of Reg. v. Walter Hook(5), where, in the Court of Crown Cases Reserved, Pollock, C.B., after reviewing the different approaches that had been previously adopted in dealing with this problem, including that in Rex v. Knill(6), where the court on an application for a new trial held two contradictory oaths to be sufficient in themselves, concluded by saying that:
Two other judges, Bramwell, B., and Byles, J., seemed, however, disposed to place a somewhat greater degree of reliance on Rex v. Knill(6). 28. Cross on Evidence (3rd Ed. p.164) refers to these cases and says:
29. Whether the courts would have been wiser to have adhered to the earlier precedent recognized in Knill's case(6) and not to have embarked on the essentially unnecessary process of determining precisely which of the two statements was untrue is now largely academic in Hong Kong, where section 10 of the Perjury Ordinance provides that:
30. In the present case, however, we are concerned not with two statements on oath but with one statement on oath and two statements not on oath. Nevertheless the assertion that proof of mere contradiction is insufficient is a dangerous over-simplification which avoids the real issue. 31. It may well be true that evidence which established nothing more than contradiction and from which nothing more could be inferred is insufficient, but that is a very different proposition from saying that evidence of contradiction is insufficient. 32. As Crown counsel has pointed out, the courts are constantly dealing with cases where an accused is shown to have made two contradictory statements and the court is asked to reject the truth of one and accept the truth of the other; a common example is the denial on oath of a pre-trial confession. Frequently a court will find, when it has taken due account of the circumstances in which the statements were made, including, for example, the inherent probabilities of the statements themselves, and the notorious fact that individuals seldom lie in making a statement that plainly injures their own interest, will accept one statement as true and reject the other. It is no less open to a court to do this on a perjury charge than on any other charge. 33. If the prosecution were to stop at asking the court merely to find a contradiction, they would, in cases not covered by section 10, have asked the court for findings insufficient to support a conviction, but where the prosecution goes further and asks the court to infer that one statement was true and the other false (or even that both were false) the court is not precluded from doing so merely by the fact that the statements are contradictory. 34. Consequently, we do not think that the judge in the court below would, on the completion of the case, have been precluded from drawing, if he thought fit, a conclusion that the accused was guilty of the second offence charged. 35. In this connection, the judge seems to have been mistaken when he thought the prosecution was simultaneously relying on the accused's statement in court as being true and untrue. The offences charged fell to be dealt with seriatim. Only when the first had been disposed of would it be necessary to consider the second. In effect, they were alternative charges and it is, of course, quite common in such circumstances e.g. in charges for larceny and receiving, to rely on averments which would not stand together but where one could be maintained if the other failed. 36. Counsel for the accused also relied on the argument that under section 14 of the Perjury Ordinance, a conviction for perjury cannot be sustained if there is only one witness to the falsity of the statement in question. Again, there is no clear indication on the case stated that the judge relied on this reason in reaching his conclusion. Had he done so, we think he would have been in error because if a witness is heard on two distinct and separate occasions to contradict an averment made by him on oath and these contradictions are proved by more than one witness, the requirements of section 14 are satisfied (see the judgment of Byles, J. in R. v. Hook(5)). Justification for this view can be found in the reason which inspired the original rule requiring more testimony than that of one witness to contradict a proof upon oath; in that otherwise people would be deterred from giving evidence through a feeling that the contrary testimony of one solitary witness could expose them to severe penalties. Their own contradictions uttered on two separate occasions and proved by more than one witness would not be open to this objection. The same considerations might apply to one contradiction proved by more than one witness but it is unnecessary for us to go so far in the present case. 37. Although the error is not so clearly emphasized in regard to the perjury charge as in the case of the false pretences charge, we think that the trial judge, in ruling that there was no case to answer, did not apply the proper test. We would allow the appeal, set aside the ruling in the lower court and send the case back to be tried de novo. Representation: W. Sheratte, Crown Counsel, for the Appellant (illegible)ck WOO (K. C. Kung & Co.) for Respondent. (WRITTEN JUDGMENT HANDED DOWN) (1) 1823, 1 Lewin 270 & 168 E.R. p.1037. (2) (1838) 8 Car. & P., 238 & 173 E.R., p.476 (3) 5 B. & A. 926 (4) 1844, 1 Car. & K., 519 & 174 E.R. 919 (5) (1858) Dears. & B. 606 & 169 E.R. 1138 (6) (1822) 5 B. & Ald. 929, n. |