The Queen v. Cheung Ng Chai

HCMA000476/1989

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 476 OF 1989

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BETWEEN

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Coram: Cons, V. P., sitting as an additional High Court Judge

Date of hearing: 20 September 1989

Date of delivery of judgment: 20 September 1989

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J U D G M E N T

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Cons, V.P:

1. In December last year CHEUNG Ng Chai ("D2") was jointly charged together with a distant relative ("D1") with an offence of attempting to pervert the course of public justice. It was alleged that they offered money to each of three youths, aged 14, 13 and 13 years respectively not to give evidence implicating the 1st Defendant in proceedings for assault, held the previous November, in which the three of them were called as witnesses.

2. The hearing commenced before Mr. D. I. Thomas sitting as a magistrate in Kwun Tong in February this year. The three youths were the main witnesses against the two Defendants. The magistrate found the first two to be confused as to certain aspects of their evidence, and because of that, and in view of discrepancies between their evidence and that of the third prosecution witness, that is the third youth, he rejected their evidence save insofar as to accept that they actually did give false evidence in the earlier trial. However he accepted the evidence of the third youth, which confirmed the offer of money to the other two, but not as to himself, his evidence being that he acted solely out of friendship to D1. For that reason the magistrate, at the close of all the evidence, deleted the name of the third prosecution witness from the particulars of the charge. Earlier he had also accepted a submission of no case to answer in favour of D1, finding that there was no evidence against him personally.

3. For the record I should add that thereafter D1 gave evidence, which, when coupled with that of D2, suggested that the idea of payment came first in fact from the third prosecution witness, who had approached D1 with a view to his passing on the idea to D2 but that D2, when approached, rejected the suggestion with anger and annoyance.

4. An appeal against sentence has not been pursued and is therefore dismissed. The appeal against conviction is based on the Contention that the conviction was unsafe and unsatisfactory in all the circumstances. In particular Mr. Chik, who appears today for D2, raises two points Firstly it is said that the magistrate, in rejecting the defence version of events, failed to take into account an admission elicited from the third youth in cross-examination, that in the morning of the earlier trial he had made an offer to D1. I have been taken to that particular part of his cross-examination, which on the face of it does make such an admission, but I have to observe that it was heavily qualified on re-examination.

5. The magistrate assessed the character of the third youth in considerable detail, and although he does not mention this particular passage of evidence specifically, his attention had been drawn expressly to it in counsel's final submission shortly before the decision was made and I see no reason to think that it escaped his attention when deciding whether or not to accept the evidence of the third prosecution witness. It is well established that the magistrate is not required to comment on each and every piece of evidence so long as it is apparent that he was aware of the defence that was being offered.

6. Secondly it is contended that by amending the charge to delete the name of the third prosecution witness before hearing final submissions of counsel the magistrate indicated that he had already made up his mind to accept the evidence of the third prosecution witness in total. With every respect I am unable to accept that contention. In my view the amendment did not indicate that the magistrate had already come to a definite conclusion to believe the third prosecution witness. It indicated no more than that, even if in the end he should so conclude, there would still not be sufficient evidence to convict so far as that particular aspect of the charge was concerned.

7. I am not persuaded that the conviction was either unsafe or unsatisfactory and the appeal must therefore be dismissed.

(N.B. This judgment has been reconstructed from notes made at the time.)

Representation:

Kenneth CHIK (M/s Cheung, Tong & Rosa) for the Appellant

Samuel Leung Crown Prosecutor for the Respondent