So Ying Chi and Others v. The Queen
Read the full judgment text of CACC 326/1968 on BabelCite. This Court of Appeal judgment was delivered on 2 September 1968.
1. These are appeals against six convictions out of eight charges.
Cited by 1 case
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CACC000326/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 326 OF 1968 -----------------
----------------- Coram: Hogan, C.J. and Mills-Owens, J. Date of Judgment: 2 September 1968 ----------------- JUDGMENT ----------------- 1. These are appeals against six convictions out of eight charges. 2. The trial in the court below involved six charges for robbery with aggravation, one (the 2nd charge) for demanding with menaces and one (the 8th charge) for assault with intent to rob. All the accused were not involved in each of the charges; one charge of robbery with aggravation (the 7th charge) and the charge of assault with intent to rob were laid against the 2nd and 3rd appellants only. 3. The 1st charge arose out of allegations that the appellants, who had lost their employment as mill workers at the Nam Fung. Factory in February 1968, blamed a newly appointed supervisor at that factory, the first complainant, Shum Kei-tat, and forced him to pay them money as a result; waylaying him outside his apartment for this purpose and making threats of injuries to himself and to his family if he failed to pay. The 2nd charge dealt with a later incident, on the 17th March, when the appellants were alleged to have got on to a motor vehicle with Shum Kei-tat after he had finished the night shift at 7.20 a.m., dismounted when he did and demanded further money from him. Following their threats they required him to bring the money to them at the Peninsula Cafe the following day. He said he went there and tried to explain that he could not pay further money but, in the words of the trial judge, was saved from a difficult situation by the appearance of two detectives in the Cafe whose arrival gave the complainant, Shum Kei-tat, an opportunity to leave the Cafe of which he took advantage. 4. The 3rd and 4th charges dealt with two further incidents when the appellants allegedly obtained additional sums from Shum Kei-tat by threats. 5. The 5th and 6th charges related to incidents in which another supervisor at the Nam Fung Textiles Factory, Yeung Hiu-cho, claimed that he was similarly intimidated and made to part with money to the appellants. 6. The 7th charge related to a supervisor, Chan Ka-on, in another factory, the Tai Hing Textiles, where all the appellants had worked two years previously. He also claimed that he had been waylaid outside his apartment, similarly blamed for the appellants' loss of their employment there, and beaten by the 2nd and 3rd appellants together with another man not before the courts and robbed of his watch. 7. The 8th charge related to an attack on a worker in the Personnel Section of the Tai Hing Textiles, who said that he was accosted by the 2nd and 3rd appellants when approaching his home and similarly blamed, and that in the course of the struggle a hand was placed in his pocket but he put up resistance and when members of his family turned out he escaped. 8. All three appellants were acquitted on the 2nd and 4th charges but verdicts of guilty were found on the remaining charges with the exception of the 8th charge, where the judge was not satisfied of an attempt to rob but found the 2nd and 3rd appellants guilty of the lesser offence of common assault. The 1st appellant received 2 years concurrent on four charges of robbery, the 2nd appellant also received 2 years concurrent on the same four charges of robbery and 3 years on the 7th count, also concurrent, as well as 6 months on the assault charge, also concurrent. The 3rd appellant received a similar sentence. 9. Up to the 8th day of August, all the appellants were represented by the same counsel and solicitors but on that day, as there appeared to be some possibility of a conflict of interest between the 2nd and 3rd appellants, additional counsel and solicitors were assigned for the latter. 10. On the 7th August, 5 days before the date fixed for the hearing of the appeal the solicitors then representing the 2nd and 3rd appellants gave notice that it was their intention to call fresh evidence to prove that their clients, the 2nd and 3rd appellants, were absent on the occasion of the incidents which formed the basis of the 7th and 8th charges, and which were alleged to have taken place on the 6th April and the 15th March respectively. No particulars of the evidence were given. 11. At the commencement of the hearing on the 12th August, counsel for the 2nd appellant asked for an adjournment on the grounds that his solicitor had been unable to make contact with the witnesses whom it was proposed to call. Counsel for the 3rd appellant did not seek an adjournment or to pursue the application relating to further evidence. No affidavits were filed to show what efforts had been made to contact the witnesses in question or to indicate the grounds on which it was thought that they would give evidence which would be cogent and material to the question at issue in the court below. 12. Counsel made a brief statement from the Bar about the steps taken to contact the witnesses but was apparently not in a position to give any indication of the substance of the evidence which these witnesses might be expected to give. He rested his application for an adjournment and leave to call additional evidence primarily on the ground that his client had not been represented at the trial and did not understand the procedure about calling witnesses. 13. The record of the proceedings in the court below shows that, at the conclusion of the evidence for the prosecution, the judge explained to the accused their right to make a statement from the dock or to give evidence themselves and their right to call witnesses. If, in fact, the 2nd and 3rd appellants wished to contend that they were not present at the scene of the crimes which formed the subject matter of the 7th and 8th charges, and that there were witnesses who could support that contention, we saw no reason why they should not have told the judge at the time and we saw no reason why the hearing of the appeal should be adjourned or why leave should be granted to call additional evidence on this appeal. Consequently we refused counsel's application. 14. Moreover, we would emphasize that when an application is being made for leave to call additional evidence, it is highly desirable that those responsible should take steps, by means of affidavits or other appropriate methods, to indicate with some particularity the substance and nature of the evidence in question and, in a case such as the present, what efforts have been made to get in touch with the witnesses and to obtain their proofs. 15. Although, as indicated in the case of Braddock v. Tillotsons Newspapers Ltd.(1), a distinction must be drawn between civil and criminal appeals there is need in both to make available to the appellate court sufficient material to show that the interests of justice require the admission of the additional evidence, and, in R. v. Parks(2), the English Court of Criminal Appeal laid down the principles on which it will act in admitting fresh evidence in terms not very different from those applicable in civil cases. 16. The preliminary applications having been dealt with, counsel for the 2nd appellant then proceeded to take up the ground of appeal that the conviction was against the weight of the evidence. Mr. Wong for the 3rd appellant rested his appeal entirely on this ground which he argued clearly and concisely. It will be convenient to take together the arguments of both counsel on this ground. The contention was that having regard to the following circumstances the prosecution had not proved its case beyond reasonable doubt.
17. Counsel for the Crown met the first of these arguments by contending that there is nothing in our procedure corresponding to Section 114 of the Indian Evidence Act, which provides that failure to produce evidence that might reasonably have been expected to be produced leads to an inference that that evidence would have been unfavourable to the person failing to produce it. Consequently, counsel said there was no reason to assume that, had these additional witnesses been called, their evidence would not have supported the complainant. Moreover, it appeared from the record that at the close of the prosecution case the prosecutor tendered four witnesses but the defence indicated that they did not wish to cross-examine them. Unfortunately, the record does not indicate the identity of these witnesses but we see no reason not to accept the statement of counsel that they were the wife and the three colleagues of the complainant who had been mentioned in the evidence. Be that as it may, counsel for the Crown further contended that it is entirely a matter for the prosecutor to decide what evidence he should call and what evidence is thought to be sufficient and failure to call additional evidence on any point should not in itself lead to an adverse inference. The prosecutor takes the risk if available witnesses are not called that the trial judge of jury may regard the evidence adduced as unconvincing, which the trial judge did in the present case in regard to two of the charges, but, apart from any statutory or other requirements as to corroboration, if there is evidence which the trial court believes and it is sufficient in law to support the conviction, then any failure to adduce additional available evidence is immaterial. 18. The arguments of counsel for the Crown are well-founded and are supported by a recent decision in the English Court of Appeal, R. v. Wheeler(3), where some question was raised about the failure of either side to call a witness who looked likely to be in a position to give evidence relevant to the facts in issue. Delivering the judgment of the Court, Winn, L.J. had this to say:-
19. The other two points made about not mentioning the visit to the cafe in examination-in-chief and not producing records from the Tai Hing Company have little significance in our view, and could not, in themselves or when combined with the other arguments, justify interference with the judge's findings. 20. Our only anxiety on this aspect of the case came from the fact that the trial judge saw fit to acquit on the 2nd and 4th charges although he had before him evidence from the complainant which, if believed, would in itself also have been sufficient to prove those charges. At first sight, it seemed difficult to reconcile these acquittals with the judge's finding that this same complainant had told the truth on the 1st and 3rd charges on which the appellants had been found guilty. Crown counsel sought to justify this approach on the basis that, in regard to the 1st and 3rd charges, the appellants did not seek to deny that they had obtained the money but contended it had been obtained by way of a loan and without menaces etc.; that the issue which the trial judge had to determine on these charges was much narrower and, consequently, he had little difficulty in coming to the conclusion that he should accept the complainant's version of what had occurred in preference to the very improbable story advanced by the appellants: but, when faced with the denial by the appellants of any participation in the events alleged to form the subject of the 2nd and 4th charges, he was not prepared, without additional evidence, to find the guilt of the appellants established beyond reasonable doubt. This approach, counsel claimed, is borne out by the way the judge dealt with the 4th charge when he said "I am not satisfied that there is sufficient evidence to justify a finding of their guilt" on this charge. This, counsel contended, did not indicate that the judge was casting doubt on the veracity of the complainant but simply that he felt he should have had more evidence when the issue turned not only on how the money came to be paid over but whether it had ever been acquired by the appellants. Moreover, counsel contended, although the trial judge has not set out very clearly the reasons for the acquittal on either the 2nd or 4th charges, it may well be that, on the 2nd charge, he was in some doubt as to whether the evidence for the prosecution, even if accepted in full, did clearly establish that there had been a demand with menaces. 21. It would have been more satisfactory if the judge had directed his attention to the question whether there was a seeming inconsistency in his decisions in that he was accepting evidence from the complainant on two charges whilst, impliedly, throwing doubt on the accuracy of the evidence of the same complainant at least in regard to the 4th charge, but the manner in which he has expressed himself seems to suggest that whilst not disbelieving the evidence of the complainant on this charge, he found it insufficient in itself. This finding may be open to criticism but it would not appear to set up that irreconcilable conflict between the verdicts which would justify us in setting aside the findings of guilty on the 1st and 3rd charges. 22. The need to show an irreconcilable conflict between verdicts before an appeal should be allowed for inconsistency, is shown by the decision in Cheng Juk Man v. The Queen(4) and the cases there mentioned. 23. Counsel for the 1st and 2nd appellants also argued that the judge was wrong in admitting statements made by these appellants, which amounted to confessions. If we understood his argument correctly, the suggestion was that since the judge had rejected other statements sought to be adduced against these appellants on the grounds that they had not been properly cautioned and, in so rejecting those statements, had accepted the possibility that the appellants were put under pressure whilst in custody, he was wrong in accepting the two later statements made by the appellants after caution, in that the earlier pressure, the possibility of which was accepted by the judge, might have continued to operate on their minds. 24. The point is little more than academic because the judge in his reasons for his verdict placed no reliance on - not even mentioning - the two statements. Quite apart from that, it seems to us that on the evidence before him the judge was entitled to admit them in evidence. 25. Counsel for the Crown invited us to deal with the question whether on an appeal from a District Judge sitting alone the grounds on which an appellate court can be asked to intervene are more limited than for an appeal to the Supreme Court from a magistrate and, more particularly, whether a ground such as the suggestion that the decision of the court below was "against the weight of evidence" is admissible. He said that having regard to the terms of Section 81(2) of the Criminal Procedure Ordinance, the section under which the appeal is laid, it would be necessary for the appellant to show that the verdict was "unreasonable or cannot be supported having regard to the evidence". This matter has not, however, been very fully argued before us and we do not think it is necessary to deal with it on this appeal. We have assumed, without deciding, that it was open to counsel to argue that the verdict was against the weight of evidence; whether this was strictly permissible under the terms of Section 81(2) of the Ordinance remains open for decision on another occasion. 26. The applications for leave to appeal are dismissed. Representation: Miu (Feter Mark and Co.) for 1st and 2nd Appellants. Wesley Wong (K.B. Chau and Co.) for 3rd Appellant. Addison S.C.C. for Crown. (1) (1949) 2 All E.R. 306. (2) (1961) 1 W.L.R. 1484. (3) (1967) 1 W.L.R. 1531 AT 1535. (4) (1967) H.K.L.R. 314. |
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