Attorney General v. Suen Chun-kwong

CAAR000006/1980

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Coram: Huggins & Leonard, JJ.A. & Addison, J.

Date of Judgment: 6th August 1980.

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JUDGMENT

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Leonard, J.A. :

1. This was an application for leave to apply to this court for review of a sentence passed on the 22nd of May 1980 by His Honour Judge Evans in Victoria District Court Case No. 106 of 1980.

2. The amended charge before the District Judge read as follows:

3. The respondent pleaded guilty to that amended charge. In the proceedings at No. 4 Court Western Magistracy the respondent SUEN Chun-kwong had on the 2nd of April, 1980 pleaded not guilty to possession of heroin for the purposes of trafficking, it having been the case for the prosecution as presented on the 2nd of April, 1980 that he was found in possession of 0.77 grammes of heroin in a mixture of less than 4 grammes comprising two packets of drugs. He chose to give evidence on oath denying that the drugs in question were in his possession. His evidence was disbelieved and he was by virtue of the operation of the presumption contained in section 46 of the Dangerous Drugs Ordinance convicted of having the drugs in his possession for the purposes of trafficking.

4. He changed his solicitors and applied for a review. His application for a review was granted and on the 9th of April, 1980 the case was reviewed by the magistrate. He was allowed to reopen his case. He was called as a witness and affirmed, whereupon he was "warned by the magistrate of the consequences of perjury". On oath he said that the drugs found were in his possession but that they were for his own consumption and not for trafficking. The learned magistrate did not regard the presumption as having been rebutted by this evidence and the conviction and sentence of two years' imprisonment were confirmed. The respondent was thereafter charged with making a contradictory statement on oath and I have set out the charge (as amended) in full above.

5. He pleaded guilty at the first opportunity. The trial judge was informed of the facts and imposed a sentence of three months' imprisonment concurrent with the sentence imposed by the magistrate.

6. It was conceded by Mr. Lucas before us that the respondent was properly regarded as having a clear record other than of course the conviction for the drug offence. He is a married man with seven children between the ages of nine and seventeen all at school and is the owner of a small self-run restaurant in the Western District.

7. The charge as amended is to be construed with reference to the section under which it is brought, that is section 39 of the Crimes Ordinance, Cap. 200 which reads as follows:

"39. Where 2 or more contradictory statements of fact or alleged fact, material to the issue or matter in question, have been wilfully made on oath by one and the same witness in any judicial proceeding or proceedings, whether before the same court or proceedings, whether before the same court or tribunal or person or not, and whether the respective truth or falsehood of the said statement can be ascertained or not, an indictment may be preferred against him charging him with having wilfully made the said contradictory statements, and on conviction thereof, either in whole or in part, such witness shall be liable to imprisonment for 7 years and to a fine."

8. Having regard to the wording of section 39 the framer of the charge was obliged to give particulars of the two or more contradictory statements of fact or alleged fact. I think the particulars might more usefully have read:

"SUEN Chun-kwong, on the 2nd and 9th days of April respectively in judicial proceedings at No. 4 Court Western Magistracy in this Colony wilfully made statements of fact, material to the issues or matters in question such statements being on oath and being contradictory statements of fact in that on the 2nd day of April, 1980 the said SUEN Chun-kwong stated that he did not have dangerous drugs in his possession on the 4th day of December, 1979 whether for purposes of trafficking or otherwise whereas on the 9th day of April, 1980 he stated that he had such dangerous drugs in his possession but that such dangerous drugs were not in his possession for purposes of trafficking."

As I read the amended charge what is alleged against the respondent is that he said on the 2nd of April that he had not had the drugs in his possession but said on the 4th of April that he had them in his possession.

9. The summary of facts presented to the trial judge is brief. It reads:

It was apparent that the respondent was pleading guilty to having made two contradictory statements. The first one was that he was not in possession of the dangerous drugs; the other being that he was in possession of them. The trial judge observed however

"Clearly, on one or both occasions in the magistracy the accused wilfully made a false material statement of fact and he made one statement after being warned of the possible consequences by a magistrate."

10. Mr. Lucas has argued that the accused should be dealt with on the basis that he made false statements on both occasions: the false statement made on the first occasion being that he was not in possession of the drugs; the false statement made on the second occasion being that it was for his own use that he was in possession of the drugs. Mr. Lucas argues that this conclusion is a necessary result of the finding of the magistrate that drugs were for trafficking.

11. To my mind, this argument is not tenable for three reasons: firstly, because of the way in which the amended charge is worded; secondly, because the section under which the accused was charged prohibits contradictory statements, not perjury; thirdly, because the statement made by him on the 9th of April that he was in possession of the dangerous drugs was consistent with the Crown case throughout. The only matter at issue on the 9th April was whether or not the drugs were for his own use. His statement that they were for his own use may have been true or false. It was probably regarded by the magistrate as false because by it the respondent failed to discharge the presumption, but he may have failed to rebut the presumption of possession for trafficking even although he told the truth. He was coming before the magistrate on the 9th April as a self-confessed liar and his evidence although possibly true may have been too weak to prove the contrary of the presumption that he had the dangerous drugs in his possession for the purposes of trafficking.

12. Mr. Lucas conceded that the practice in Hong Kong where an accused person tells lies on oath and indeed is proved by cross-examination or otherwise to have told such lies on his trial, would be not to prosecute him for the offence of perjury or for the offence of making inconsistent statements on oath. He seeks to liken the facts of this case to that of Pullen⁽¹⁾. To my mind that case is quite distinguishable. Pullen sought to set up an alibi and by reason of his doing so the case against him was dismissed. He gave evidence supported by two witnesses as to the alibi. He and the two witnesses were subsequently charged with and convicted of perjury. Pullen was sentenced to two years' imprisonment. The case is distinguishable in that Pullen not only committed perjury but he committed it successfully and he got two witnesses to assist him.

13. Mr. Lucas also referred us to the case of R. v. Ahmed Noor Ellahi Vol. 43 J.P. Weekly Reports of Cases on Sentencing in the Court of Appeal. That case is of no relevance either. There Ellahi was charged with overtaking another vehicle in a zebra controlled area. He called a witness to support his denial of the charge and was acquitted. The witness later admitted that he had given false evidence at Ellahi's request and had been paid for doing so. Ellahi was indicted for aiding, abetting, counselling and procuring perjury and eventually pleaded guilty. He was sentenced to two years' imprisonment suspended for two years, fined £3,000 and ordered to pay £1,500 towards the prosecution costs. The court said:

"that the offence was as serious as committing perjury oneself, and perjury was one of the offences which inevitably attracted a sentence of imprisonment, however good the previous character of the defendant, because it undermined the foundation of the administration of justice."

It was to the passage in quotation marks that Mr. Lucas particularly directed our attention. But an offender who had unsuccessfully perjured himself in his defence on the original hearing is not prosecuted. In our case the respondent perjured himself at the first hearing. This perjury did not work and he applied for a review in the course of which he corrected the perjury of which he had been guilty on the original hearing. It is clear from the wording of the charge it was because of that correction that he was charged. He was not charged with perjury on the review. The gravamen of the offence with which he was charged was the correction of the original perjury. I think it is illogical to suggest that he must also have told lies on the review because the magistrate was not persuaded that he had discharged the onus placed on him by section 46 of the Dangerous Drugs Ordinance. Even if he did tell lies on the review Judge Evans could not have punished him for doing so for the lies told on the review were not contradictory of any earlier statement.

14. I think there is logic in the contention put forward by Mr. Lucas that any sentence imposed for having made contradictory statements should have been consecutive to the sentence on the drugs charge but if it was to be consecutive it should have been truly nominal. Three months was far too severe a punishment for having corrected a perjury for which in the normal course of events he would not have been charged. In His Honour Judge Evans' shoes I would have sentenced the respondent to one day's imprisonment consecutive rather than to three months' imprisonment concurrent. It would, of course, have been different if the respondent had been charged with (a) having made contradictory statements and (b) with perjury (for having said at the review that the drugs were for his own use) if the Crown had been able to prove that that was perjury. Perjury was not the charge and I do not think that this application should have been brought and would therefore dismiss it.

Huggins, J.A.:

15. Although the amended charge was not defective, I think the real issues would have been clearer if particulars had been given of the contradictory statements of fact alleged. They were the statement made on 2nd April that the Respondent was not in possession of the dangerous drugs specified in the charge then before the court and the statement made on 9th April that he was in possession of those drugs. The first statement was disbelieved by the magistrate, and probably rightly so. If that first statement was false, the second statement must have been true. We are told that no charge of perjury would normally be laid against a defendant who lied in his defence and it necessarily follows that this Defendant now stands charged because he has chosen to correct a falsehood and to tell the truth. The fact that on the second occasion he lied as to the purpose of his possession (if it be a fact) was wholly irrelevant to the present charge. To assume that it was a lie because the magistrate was not persuaded to hold that the onus of displacing the presumption of an intention to traffic in dangerous drugs had been discharged would be unwarranted: I cannot accept the submission of counsel for the Attorney General that if a person fails to persuade a court that he was probably telling the truth he must probably have been telling lies.

16. The object in creating this offence was to punish witnesses who must have committed perjury (by reason of their having made inconsistent statements) without the necessity of proving which was false. What in truth we are now asked to punish the Respondent for is wasting the court's time by committing perjury at the original trial - and that in spite of the practice (well established even if difficult to justify on any ground but that of expediency) not to prosecute lying defendants. The learned District Judge recognized that the offence was one which normally called for a prison sentence and that such sentence should normally be consecutive to any term imposed for another offence, but he said that he "could see little practical point in a consecutive sentence of a small amount added onto a two-year term" in the present case. This was not a normal case and in my view (given the practice of not prosecuting lying defendants for perjury) the Respondent suffered sufficient punishment for this "offence" in having the sentence for the dangerous drugs offence run from the date of the review instead of from the date of the original trial. An absolute discharge would have been a lighter penalty than that in fact imposed and I, too, would dismiss the application.

Addison, J.:

17. I would like to add a few words to what my learned Brothers have said. For myself I see nothing objectionable in the wording of the particulars of offence. On 9th April 1980 the Respondent told the court that he was in possession of the dangerous drugs and this obviously contradicted his earlier statement made on 2nd April that he did not have possession of those same drugs. The offence was complete on 9th April and it was immaterial which statement, if either, was true. Throughout, it was the case for the prosecution that the Respondent had possession of the drugs for the purpose of unlawful trafficking and in seeking to prove that purpose the Crown relied on the operation of the presumption of unlawful trafficking. In effect the prosecution was really seeking to punish the Respondent for taking two bites of the cherry and failing on both occasions, so involving a waster of public time.

18. Mr. Lucas was at pains to point out that it is not the practice of the Crown to prosecute an accused who is convicted at his trial merely because he is shown to have lied in his defence. He said the Crown would not have brought proceedings for perjury in respect of the Respondent's total denial of possession in the first trial.

19. Mr. Lucas then went on to say that different considerations apply where an accused lies in his second trial. He claimed that the Respondent did lie in his second trial and this was proved, he said, because he was convicted not of simple possession of dangerous drugs but of possession of dangerous drugs for the purpose of unlawful trafficking.

20. The contradictory statement particularized in the charge was confined to "possession" but the alleged lie told on the second occasion was not in relation to his possession of the drugs (which the prosecution always maintained the Respondent had) but was one relating to his purpose for possession. In other words the Crown felt the Respondent should be punished for lying when he said in his second trial that his possession of the drug was for his own consumption and not for the purpose of unlawful trafficking and the expedient used by the Crown was to prefer a charge for making contradictory statements as to possession. Such a charge contrary to section 39 of the Crimes Ordinance was not difficult to prove and indeed the Respondent pleaded guilty to it.

21. Of course it is possible, though highly improbable, that the Respondent did not lie in his second trial. If the trial magistrate had been left in the position where he was equally divided as to whether the Respondent was in possession of the dangerous drug for his own possession or for the purpose of unlawful trafficking then he was obliged to convict by reason of the Respondent failing to rebut the presumption. Even though that eventuality was highly unlikely nevertheless the contradictory statement which the Respondent was accused of uttering was one pertaining to possession. Thus it seems to me the Crown was seeking to have the Respondent punished either for the lie told in the first trial or for the half truth in the second trial inasmuch as he did not go further and admit that his possession was for the purpose of unlawful trafficking.

22. There is a further aspect which seems to me to be of importance. It must have been obvious to everybody that once the application for review was granted the Respondent would admit possession of the drugs but claim they were for his own consumption. This is a dilemma which faces many persons accused of such a charge. Here the respondent had two attempts to earn his acquittal but the latter was granted to him with the leave of the court. It goes against the grain that the Crown, knowing this, should jump into the arena and bring a prosecution based on a true statement made by the Respondent in the second proceedings which contradicted one made in his first trial and which, on Mr. Lucas' own admission, would not have been the subject of a criminal prosecution.

23. I agree that in principle the sentence for making contradictory statements should run consecutively to any sentence imposed in earlier proceedings but in this case where there had been an application to the magistrate to review and the prosecution was founded on a truthful admission made in the course of the second trial I would dismiss this application. In any event the launching of this prosecution seems to run counter to the circumstances stated by Mr. Lucas as to when a prosecution would not be brought.

6th August 1980.

Representation:

Lucas for Crown/Appellant.

L. Remedios (Y.K. Poon & Co.) for Respondent.

(1) (1966) Crim. E.R. 625.