Fok Chak-chun and Another v. The Queen

CACC000284/1979

Coram: Roberts, C.J., Huggins, J.A. and Silke, J.

Date of Judgment: 30 July 1979

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JUDGMENT

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[Perjury - need for corroboration]

Roberts, C.J.-

1. This is an appeal by two police officers, who were convicted before a District Judge on one charge of perjury, contrary to section 31 of the Crimes Ordinance. They were originally charged with two offences, the first of attempting to pervert the course of justice and the second of perjury. Both charges arose out of the same incident, which was the prosecution of a man called WAN Yuen-fai, an apprentice mechanic who was employed at a garage in Yuen Long.

2. The particulars of the charge of perjury were that the two accused, on 27th September, 1978, "being sworn witnesses upon the trial of WAN Yuen-fai in the Juvenile Court sitting at San Po Kong, in this Colony, knowingly and falsely swore that on the 30th day of August, 1978, they saw the said WAN Yuen-fai repairing a motor vehicle on the pavement of Ma Miu Road, Yuen Long."

3. WAN Yuen-fai was prosecuted before a magistrate in September of last year, for carrying out repairs to a motor vehicle on a road, contrary to the Road Traffic (General) Regulations. The evidence against him was wholly that of the two police officers who are the appellants today.

4. The trial magistrate acquitted the defendant. Before passing to the main ground on which we propose to allow these appeals, I should mention that, as part of the evidence put before the trial judge, the magistrate's notes of his trial were produced. These notes contained comments by the magistrate of a damaging nature about the credibility of the appellants.

5. It is clear that, on the authority of R. v. Britton⁽¹⁾, the judgment or finding of a judge or magistrate should not be made part of the evidence on a subsequent trial for perjury arising out of the earlier proceedings.

6. There are, however, two more important grounds of objection taken by counsel for the appellants. Firstly, that the judge should have acquitted of the second charge if, as was the case, he had acquitted on the first charge for the reasons which he gave. The trial judge acquitted the appellants on the first charge on the ground that there was a possibility, sufficient to raise a doubt in his mind, that the appellants might have had grounds for believing that WAN was repairing the car.

7. If the judge had given the benefit of the doubt to the appellants on the first charge for this reason, it should have followed that he gave them the same benefit in relation to the second charge, which had arisen out of the same facts and was based on the same evidence. Therefore, in our view, he should have acquitted on the second charge for the same reasons which he had given for the acquittal on the first charge.

8. The other substantial ground of appeal was that the trial judge failed to direct himself as to the need for corroboration on a charge of perjury.

9. Section 43 of the Crimes Ordinance provides that a person should not be convicted of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

10. The need for corroboration does not, according to the record, appear to have been mentioned at any stage during the trial, neither by counsel for the Crown nor by counsel for the appellants; nor is there any mention of it in the judge's reasons for verdict.

11. We, therefore, feel obliged to come to the conclusion that the need for corroboration was not present in the judge's mind at the time when he reached his verdict. We would not like it to be thought that we are suggesting that a District Judge, when acting both as judge and jury, is obliged to direct himself in the same way in which a trial judge, faced with a jury, must direct a jury.

12. It should normally be sufficient if the trial judge indicates that he realizes that the law or practice, as the case may be, requires corroboration and that he has directed his mind to this issue when reaching his verdict.

13. For the reasons which I have given, we are satisfied that both convictions cannot stand. Accordingly, we give leave to both appellants to appeal against conviction and both convictions are quashed.

Representation:

Cheng Huan (Wong, Hui & Souza) for appellants

Boa for crown

(1) (1893) 17 Cox 627.