The Queen v. Chan Kwok Fai

HCMA001148/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1148 of 1995

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Coram : Hon. Duffy, J. in Court

Date of hearing : 1 February 1996

Date of handing judgment : 8 February 1996

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J U D G M E N T

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1. This was an appeal against convictions for claiming to be member of a triad society, and inviting other persons to become members of a triad society.

2. The appellant was a classmate of the three prosecution witnesses who testified against him in relation to these charges. One of them gave evidence under immunity. Originally there were 12 Charges, A to L, but the learned Magistrate dismissed Charges A to D to which all three prosecution witnesses had testified on the basis that :

"Evidence contained numerous discrepancies, inconsistencies and uncertainties, which were significant both in their number and nature. ... Suffice it to say that I was fully aware of the material deficiencies in the evidence of those witnesses and I considered them all carefully before I reached my verdict.

Though I concluded that events broadly similar to those they had described had almost certainly taken place, I nonetheless dismissed those charges because of the obvious and substantial deficiencies which arose in what amounted overall, to rather confused and sometimes inaccurate evidence from the prosecution witnesses upon them."

However, his view of the witnesses was expressed later when he said :

"I heard and saw the prosecution witnesses give their evidence and I was quite satisfied that the deficiencies in their testimony on the A, B, C & D charges went to their reliability only and not to the issue of their veracity."

He then went on to say that he found that they were each honest witnesses doing their best to tell the truth, and :

"I felt sure that the unsatisfactory state of the evidence on the A, B, C and D charges (upon which, of course, I did not rely in any way) did not affect the reliability of PW2's and PW3's evidence on the F, G, H & I charges I felt sure that I could quite properly treat the evidence on those charges in a different light."

3. Mr Dunn, who appeared on the appeal, submitted that the learned Magistrate was wrong to have come to that conclusion. He submitted that the unreliability of the evidence of PW2 and PW3 in respect of the A, B, C and D charges adversely affected their credibility as a whole. He submitted therefore that the Magistrate was wrong to rely upon their uncorroborated testimony to convict the appellant on the F, G, H and I charges. The thrust of Mr Dunn's argument was that it was turning logic on its head for the Magistrate to accept the uncorroborated evidence of three witnesses, whose evidence he had found to be unreliable when corroborated.

4. I had no difficulty with the learned Magistrate's findings in that regard. It is always open to a tribunal of fact to accept part of what a witness has said and to reject the other part. The learned Magistrate's reasons for rejecting the witnesses' evidence in relation to Charges A, B, C and D was that their evidence was confused and inconsistent. Indeed in his findings, he expressed the view that he was not surprised about that, given the complex factual situation. When he came to the other charges, he found that the situation was different and that he could rely on them. The learned Magistrate saw and heard the witnesses and he accepted that they were truthful. I cannot fault his findings in that regard.

5. Mr Dunn also made submissions in relation to discrepancies and inconsistencies which he submitted appeared in the evidence of the witnesses to suggest further that the learned Magistrate should not have relied upon their evidence. I was satisfied that this Magistrate reviewed the evidence in this case in a most comprehensive matter. A fair reading of his Statement of Findings would suggest that he gave consideration to all inconsistencies and discrepancies which appeared in the case, and that he properly took them and all other relevant matters into account. It was a most impressive Statement of Findings. I could not see any reason to interfere with it and I therefore dismissed the appeal.

Representation:

Mr F. Veltro, S.C.C., for Crown

Mr John Dunn (Kwan & Kwan) for Appellant : Chan Kwok Fai

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