Shum Kin Chung v. The Queen
Read the full judgment text of CACC 272/1969 on BabelCite. This Court of Appeal judgment was delivered on 21 July 1969.
1. The appellant was convicted by a magistrate for corruptly soliciting contrary to section 3(1) of The Prevention of Corruption Ordinance Cap. 215. Among the witnesses who gave evidence was Lau Shun Cheong who was clearly an accomplice and whose evidence the magistrate relied upon.
|
CACC000272/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 272 OF 1969 -----------------
Coram: Williams J. in Court. Date of Judgment: 21 July 1969 ----------------- JUDGMENT ----------------- 1. The appellant was convicted by a magistrate for corruptly soliciting contrary to section 3(1) of The Prevention of Corruption Ordinance Cap. 215. Among the witnesses who gave evidence was Lau Shun Cheong who was clearly an accomplice and whose evidence the magistrate relied upon. 2. The substantial ground of appeal, as I gather it from the learned submissions of his counsel Mr. Bernacchi, Q.C., is that the magistrate failed to direct himself or to sufficiently direct himself as to the need for corroboration of accomplice evidence and the dangers of convicting in the absence of corroboration in a material particular implicationg the accused. 3. Very briefly the facts are that the appellant was employed in the Urban Services Department as an overseen in connection with refuse collection. Three labourers in that section were arrested at 4.45 p.m. on 10th November 1968 for gambling. On the following morning they were released from their dusies by their immediate superior Lau to answer a charge of gambling at North Kowloon Magistracy. They all pleaded guilty and returned to work. 4. On the same day i.e. 11th November 1968, Lau Shun Cheong notified his immediate superior, the appellant, and the latter met the three labourers by arrangement in the presence of Lau Shun Cheong during that afternoon and interviewed them in his car. He pointed out that gambling was a serious matter departmentally and then let them alight from his car. He allegedly instructed or requested Lau Shun Cheong to approach the labourers with a suggestion that they each pay $200 to the appellant. Lau testified that he accordingly asked the three labourers for the money but they protested that they could not pay. Lau notified the appellant accordingly. 5. The appellant reported the gambling convictions orally to his superior Tang Fuk Yin, a Health Inspector, on 11th November 1968 and on the following day gave him a written report. 6. The matter may have ended there and been forgotten but the three labourers heard that they were to be transferred from refuse collecting to nullah work. Refuse collectors earn extra money by showing favours beyond the requirements of ordinary refuse collection. Nullah work does not attract any extra income of that kind and is not popular with the labourers. The prosecution evidence was that the accused had proposed the transfers, the inference being that he was bringing pressure to ...(illegibl) upon the three labourers for not having paid the $200. 7. The defence submitted that the labourers on hearing they were to be transferred fabricated the corruption charge and made a false complaint to the police in order to discredit the accused and remove him and retain their refuse collecting jobs. 8. The magistrate found that the labourers were not reliable witnesses. He found that Lau was reliable and accepted his evidence. 9. Lau after describing his abortive attempt to obtain money from the labourers said that he was on holiday in the latter part of November, and on the morning of 30th a charge hand called Cheung came to his home and led him to accused's car. The appellant, Cheung and Lau got into the appellant's car and Lau said that the appellant stated that there had been a report to the police. There was some discussion between the appellant and the witness Lau in which the latter says he told the appellant that he had gone too far in trying to transfer the labourers. The further gist of the conversation was alleged to be that the appellant said witness Lau would no doubt be approached by the police; that if he told what he knew he would be demoted to labourer; and that he should allege that the accusation had been fabricated by the labourers because they were not willing to be transferred; that the appellant told Lau to notify him of the nature of any statement he made to the police. Lau says that the foreman Cheung Hing was in the car during that conversation. 10. Cheung Hing testified that he was in the car and that he heard a conversation between Lau and the appellant. He gave details of the conversation which verified Lau's account of it. 11. The magistrate said of Cheung's evidence:
12. In cross-examination Lau admitted that he had been charged in connection with this particular incident and that he had engaged solicitor and counsel. He was on his own evidence an accomplice. 13. In his submission that the magistrate had not properly approached the matter of accomplice evidence Mr. Bernacchi, Q.C., referred to Davies v. Director of Public Prosecution(1), which states that the rule of practice that a judge should warn a jury of the danger of convicting on the uncorroborated evidence of an accomplice now has the force of law, and that on a failure to warn the jury accordingly a conviction would be quashed even if there were ample corroborative evidence. He quoted numerous authorities which have laid down that a judge or magistrate sitting alone should direct himself in accordance with that rule. 14. Mr. Bernacchi did not indicate how a magistrate should reveal that he had directed himself on any point of law. 15. In Tsui Ting v. The Crown(2) which was on appeal from a District Judge who had accepted accomplice evidence it was submitted that he had insufficiently directed himself as to the manner in which he should have approached the accomplice evidence. It was argued that he had treated as corroboration certain documents which were not corroborative of the accomplice evidence. The learned Chief Justice, Sir Michael Hogan, at p.198, said that although the judge had expressed himself in language which did not altogether exclude the possibility that he had relied on corroboration the Full Court had considered the judgment as a whole and he said at p.199:
16. In R. v. Sher Bahadur Khan(3), Reece, J. considered an appeal against conviction in which a ccomplice evidence had been given on charges of fraud. The appeal was successful. The appellant contended that the magistrate had failed to direct himself on the law relating to falsification of accounts which was one of the charges; that he failed to consider the necessity for corroboration, and that he never brought his mind to bear on the issue of intent to defraud which was one of the essential ingredients of the offence. 17. The prosecution contended that the magistrate was not bound to record the workings of his mind that certain assumptions must be accepted with respect to a legally qualified magistrate. The learned judge at p.369 did not accept that proposition on the ground that it would permit a magistrate to record a conviction and deprive a man of his liberty without giving reasons and depriving the appellate court of the opportunity of considering his reasons. The learned judge referred to numerous authorities. At the foot of page 380 he says:-
18. In the course of that judgment the learned judge remarked at p.374 that the magistrate had never at any stage considered whether Wong Wing Kwong was an accomplice, although the evidence showed that he was. He also referred to the fact that the magistrate had not considered the existence of an intent to defraud which was a necessary ingredient of the offence. There were also findings of fact recorded by the magistrate which were quite unjustified and supported by no evidence at all (p.382). It would seem in that case that the magistrate's record when viewed as a whole showed that he had not applied his mind to the essential ingredients of the charges nor had he applied his mind to the law relating to a ccomplice evidence. 19. In Chiu Nang Hong v. Director of Public Prosecutor(4) the Privy Council considered an appeal from Malaysia against a conviction, for rape recorded by a judge sitting alone. The complainant's evidence had been uncorroborated. It was held that a judge sitting alone should make it clear that he had the risks in mind when he convicted on the uncorroborated evidence of the complainant, but was nevertheless convinced by her evidence. Since the judge had not so directed himself the appeal was allowed. The Privy Council indicated that no specific phrase or form of words was required, but it should be clearly revealed that the judge's mind was directed to the matter. 20. It seems that the standards of proof applicable in judge and jury trials of superior courts also apply in magistrates' courts. In a jury trial it is apparent from the summing-up whether the jury has been properly directed. It is necessary to explain and illustrate the law to a jury. However, a qualified magistrate cannot be expected to fill his record with minute directions and illustrations as proof that he has properly directed himself on all the essential features. As the foregoing authorities demonstrate there is no formula, pattern or set phrases which a qualified magistrate must use, but it must be apparent from his judgment when read as a whole that he has not overlooked any essential element or misdirected himself in regard to it. 21. In R. v. Lo Man(5), Blair-Kerr J. considered an appeal in which a magistrate had accepted accomplice evidence. He said at p.295,
22. In applying those general principles to the instant case I feel that one should bear in mind that both the prosecution and the defence treated Lau as an accomplice, and in those circumstances it would be unrealistic to expect the magistrate to formally record that which was acknowledged. By reasons of the rule in Davies case(1) it has to be apparent that the magistrate was aware of the danger of acting on Lau's evidence if uncorroborated. But I feel that he does not necessarily have to solemnly record this in those precise words although it would be most helpful if he did so. The magistrate referred to Cheung's evidence of the meeting between the appellant and Lau on the morning of 30th November. He said it corroborated in large part the evidence of Lau as to his conversation that morning with the appellant. Having regard to the magistrate's professional qualification and experience and to his statement that Lau's evidence was corroborated in a certain aspect, and having regard to the fact that it was corroboration in a material particular implicating the appellant, I feel it would be contrary to the principles enunciated in the foregoing cases for me to accept that the magistrate did not have in mind the rule in Davies case(1). 23. However, the matter does not end there in this particular case. Mr. Sheratte, Crown Counsel, has argued that the rule in Davies case(1) does not apply to the instant case by reason of section 9 of the Prevention of Corruption Ordinance, Cap. 215. It reads:-
24. Mr. Bernacchi, Q.C., argues that the wording of section 9 shows an intention on the part of the legislature to limit its provisions to jury trials. 25. The rule in Davies case(1) as laid down in the House of Lord is worded with reference to trials by judge and jury, but that did not precent its application to trials by magistrates. Section 9 is clearly intended to abrogate the rule in Davies case(1) in so far as it concerns corruption charges laid under sections 3 and 4. As I have said the rule in Davies case(1) does not specifically refer to trials by magistrates; consequently in abrogating the rule in the way that it does there is no need for section 9 to refer to trials by magistrates. 26. In R. v. Lo Man(5) the provisions of section 9 were noted by Blair-Kerr, J. in relation to a trial by a magistrate. The learned judge observed at p.294:
He continued further on:
27. Mr. Bernacchi further submits that even if section 9 does apply the magistrate paid no attention to it and failed to give himself the kind of direction contemplated therein. As I have said it was so obvious that Lau was an accomplice that one could not justifiably support a contention that the magistrate had overlooked that fact. The magistrate did refer to Lau's evidence and to the corroboration of a part of it, and the part he referred to was material. Viewing the record, his findings and reasons as a whole, I feel it cannot be maintained that the magistrate overlooked the need for a cautious approach in accepting Lau's evidence. 28. There was ample evidence on which the magistrate could find as he did. 29. I would not be justified in disturbing that finding. 30. The appeal is dismissed and the conviction affirmed.
Representation: Bernacchi Q.C. & P. Chan (E. Cheung & Young) for Appellant. Sheratte C.C. for Crown. Judgment handed down. (1) 1954 App. Cas. 378 (2) 1957 H.K.L.R. 190 (3) 1961 H.K.L.R. 357 (4) 1964 1 W.L.R. 1279 (5) 1964 H.K.L.R. 286 |