The Queen v. Ma Shing and Another

CACC000292/1985

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Hunter, J.

Date of Hearing: 28 & 29 November 1985

Date of Judgment: 29 November 1985

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JUDGMENT

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Li, V.-P.:

1. This is an application for leave to appeal against conviction by two applicants. The first applicant is convicted of two charges - one of theft, the other of assisting an unauthorized entrant to remain in Hong Kong. The first charge alleged that on the 4th of September 1983 the first applicant stole an identity card belonging to one KONG Yiu. The second charge alleged that the first applicant assisted an unauthorized entrant by the name of KWONG Shing-biu to remain in Hong Kong on the 16th of November 1984.

2. The second applicant was charged that between November 1983 and November 1984 he assisted KWONG Shing-biu and CHENG Lei-chi to remain in Hong Kong.

3. The first applicant asked for leave to appeal against conviction of the second charge only, namely that of assisting an unauthorized entrant to remain in Hong Kong. He does not seek to ask for leave to appeal against conviction of the first charge. However, there is some connection between the two.

4. On the 4th of September 1983 the first applicant kept an identity card belonging to KONG Yiu on the pretence that he was going to return it to him. However, he kept it for over a year. The next thing that happened was that KWONG Shing-biu and CHENG Lei-chi, the two unauthorised entrants made their way to Hong Kong by swimming. They also made their way to Kwun Tong where CHENG Lei-chi met the second applicant who arranged for her to have a job in a noodle stall. On the 13th of November last year the second applicant told Cheng that he had a friend who could arrange for identity card for KWONG Shing- biu, Cheng's boy friend and subsequently husband. An appointment was made to introduce them to the first applicant. They met on the 16th of November 1984 in a restaurant. Cheng gave the second applicant a photograph. On the 16th November last year the first applicant duly arrived at the restaurant. They negotiated the price. A sum of $40,000 was demanded for an identity card. However, Kwong and Cheng wanted to verify whether that card was genuine. An arrangement was made to meet at a nearby park in the vicinity of the restaurant. The second applicant, Kwong and Cheng then went to the park where they met the first applicant. The first applicant then showed them the card which in fact was a card that was stolen from KONG Yiu and said that that card was genuine. At that juncture, a police party arrived and arrested all four of them. They made exculpatory statements.

5. At the time of the arrest, both the applicants were searched. The first applicant was found to have KONG Yiu's identity card with him. The second applicant was found to have a photograph of Kwong and Cheng.

6. Both applicants gave evidence. The first applicant just gave general denial saying that he did not steal the identity card and that there were no discussion at the park with second applicant or anybody at all. They were merely at the park at chance meeting. He was discussing racing bets with the second applicant when the two unauthorized entrants barged in. That's how they were found together.

7. The second applicant's defence was that he never saw Kwong prior to his arrest. But Kwong and Cheng used to go to the noodle stall where he worked. He never spoke to either of them. As to the photographs of the two unauthorized entrants found on him he merely gave the excuse that as he was working in a noodle stall, the employees do pick things up, implying that he might be picking them up from the noodle stall. He corroborated the first applicant by saying that he went to the park to discuss racing with him and he had no notice that Kwong and Cheng were there.

8. In the event, the judge accepted the evidence of the unauthorized entrants and convicted both applicants of the charges mentioned aforesaid. In his Reasons for Verdict he said:

I should state that I found the two illegal immigrants to be good witnesses who gave evidence in an honest and forthright manner. The same could be said of the Police witnesses and also Mr. Leung. The defendants on the other hand were all evasive, shifty and unimpressive.

The remarks are peculiarly within the judge's competency and province. He saw the witnesses, he heard them. He found that the two applicants were evasive and shifty. He gave reasons why he so found them.

9. Learned counsel for the two applicants advanced substantially three grounds of appeal in support of the applications. The first was that the judge erred in finding that the applicants had assisted an unauthorised entrant. Our attention was drawn to the fact that there was no evidence that they assisted. In any event, it was argued that offering an identity card for sale was not assisting, because there was no agreement for sale concluded and that the unauthorized entrant might not accept the price. We find that there is no substance in this ground.

10. Section 37DA is the section which created the present offence reads as follows:

The very fact these two persons were keen to have an identity card clearly showed that they were not a Hong Kong resident and an unauthorized entrant. The very offer to sell them an identity card to which they were not entitled is in fact assisting. We do not find that the question whether the price was agreeable to the unauthorized entrants is material.

11. The second ground in support of the application alleged that the judge failed to find as a fact that the applicants had failed to prove that they did not know, had no reason to suspect and could not with reasonable diligence have discovered that the person he was alleged to have assisted was an unauthorized entrant. We have dealt with that in connection of the first ground in support of the application. We also feel there is no substance in this ground.

12. What rather troubled us is ground three, which alleged that the judge erred in failing to find the two main witnesses, namely Cheng and Kwong, being themselves unauthorized entrants were accomplices to the crime alleged it was unsafe to convict in the absence of corroboration of their evidence. It is true that throughout his Reasons for Verdict, apart from mentioning that Kwong and Cheng were illegal immigrants, the trial judge never dropped a hint that they were accomplices. Nor did he mention of the risk of conviction without corroborative evidence. The question is whether a judge sitting without a jury should direct himself as to the danger of conviction on the evidence of accomplices without corroborative evidence and that in addition - an immunity having been granted to Kwong and Cheng in order to give evidence. To this point there are conflicting views in the various cases. In the case of The Queen v Low ⁽¹⁾ Blair-Kerr J. said:

It was contended by Mr. How that a District Judge's statement of his reasons for verdict prepared in pursuance of section 30 of the District Court Ordinance was comparable to a Judge's summing up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a Judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

This was endorsed in the case of Chan King-man v The Queen⁽²⁾, in which it was held that in stating his reasons for verdict a District Judge is under no obligation to set out his mental process in full. His only statutory duty is to record a short statement of the reasons for the verdict. This was again repeated in the same volume in the case of Chan Shui-sing and Another v The Queen⁽³⁾, in which it was said that in a criminal case the trial judge need not expressly direct himself that the standard of proof is beyond reasonable doubt.

13. Against this there was another case in 1978 reported in the same volume of Hong Kong Law Report in the case of Field & Others v The Queen⁽⁴⁾, Huggins, J. as he then was said (at p.394):

The entire evidence against these Appellants was of such a questionable character that, in my judgment, it was vital there should be no doubt whatever that the learned judge appreciated the full extent of the dangers in accepting it. It may well be that he did but no possible explanation of the offending sentence consistent with such an appreciation has been suggested to us and for my part I would have felt constrained to allow the appeals on this ground.

In the case of FOK Chan-chun v The Queen⁽⁵⁾, the learned Chief Justice had this to say:

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.

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.

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.

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.

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.

This is consistent with the Privy Council case of Chiu Nang Hong v Public Prosecutor ⁽⁶⁾ in which Lord Donovan delivering the judgment of the Board said at page 1285:

Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convicted of the truth of the complainant's evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordships' view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge's mind upon the matter should be clearly revealed. '

This leads to the latest judgment of this Court in the case of The Queen v LEUNG Pik-shan ⁽⁷⁾, in which Sir Alan Huggins, V.-P., said:

The judge in his Reasons for Verdict did not mention in any form the fact that the two main witnesses against these two Applicants were themselves the illegal immigrants and were therefore accomplices to the crime alleged. Where a judge sitting alone fails to mention the risk necessarily inherent in accepting the evidence of accomplices the court will always interfere unless there is such cogent corroboration that it is persuaded that, had there been a proper direction, the judge would inevitably have convicted. In this case we are not satisfied that there was such cogent evidence and we think therefore that the applications for leave to appeal must be granted, that the appeals must be allowed and the convictions quashed.

We feel obliged to find ourselves in exactly the same position due to the way that the case was conducted by the Crown in the court below. Having regard to the fact that both applicants were together with the two unauthorized entrants, that the first applicant had an identity card which did not belong to any of them that it was alleged there was an negotiation for sale, and that the second applicant had the photographs of the two unauthorized entrants in his possession, it would have thought that have these all been put before this Court we might be in a position to consider applying the proviso. However, it is most unfortunate that the two photographs found on the second applicant were immediately released and returned to the illegal Cheng and Kwong. It is unusual that such an order would have been made without an application from prosecution counsel. The release of such an exhibits pending appeal or before the period of giving notice of appeal expires is highly improper and highly irregular. The exhibits must, at all times, remain with the Court until the period for giving notice of appeal expires. For this reason we cannot say that we are satisfied that there was cogent evidence to show that had there been a proper direction. Had the judge directed his mind to the issue of corroborative evidence and the risk of convicting without corroborative evidence we might be in a position to say that there had been corroborative evidence and cogent evidence and we would have upheld the conviction. In the present case such evidence is not available through this irregularity. With the greatest reluctance we find that we are not even in a position to consider whether we should apply the proviso. In the circumstances the application for leave to appeal against conviction by both applicants in respect of the charge of assisting unauthorized entrants to remain in Hong Kong must be granted. The application is treated as the appeal proper. The appeal is allowed. The convictions are quashed and in this instance, the sentences relating to assisting unauthorized entrants charges are set aside.

14. While we are on this subject we also observed that it is a practice which seemed to occur recently that very often counsel who appeared in the court below is not the counsel who appears in this court. This caused embarrassment and inconvenience because there seems to be no connection. The sense of continuity is lost and counsel appearing in this court very often say that they don't know what transpired in the court below, particularly in this instances, why the photographs should be returned to the illegal immigrants without waiting for the period for giving notice of appeal expired. We hope the learned Attorney conduct his affairs, in future in such a way that the line of continuity should remain. It is easier for counsel who appears in the court also appears before this court.

(1) 1961 HKLR 13, at page 82

(2) 1980 HKLR 105

(3) 1980 HKLR 310

(4) 1978 HKLR 385

(5) Crim. App. No. 284 of 1979

(6) (1964) 1 WLR 1279

(7) Crim. App. No. 441 of 1984

Representation:

Mrs. Penlington (John M. Pickavant & Co.) for appellant

Mr. J. Bessell (D.P.P.) for respondent