The Queen v. Shek Lau-tai and Others

Case No.CACC 349/1984

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000349/1984

IN THE COURT OF APPEAL

1984, No. 349

(Criminal)

BETWEEN

	THE QUEEN
	and
	SHEK Lau-tai	(D3)
	Shek Kam	(D2)
	TAM Lam	(D5)
	HO Kin-chung	(D1)

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ. A.

Date of Judgment: 18th December 1984

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P.:

1. On the appeal counsel for the 1st, 2nd and 5th Defendants submitted revised grounds of appeal and we use the numbers of the grounds there set out. The 3rd Defendant was unrepresented before us. The only ground of appeal which could be deduced from his Notice of Appeal was that the verdict against him was unsafe and unsatisfactory by reason of the quality of the evidence. However, he sought to associate himself with the arguments of counsel for the other defendants and made no further submissions upon the application in relation to conviction. We were satisfied that the evidence was not such that no reasonable jury could convict upon it.

2. Most of the points taken by counsel were, in our view, wholly without merit and, indeed, grounds 5 and 8 were entirely abandoned. The only grounds upon which we heard Counsel for the Crown were grounds 3 and 6(ii), which were in these terms

3. The Learned Trial Judge misdirected the Jury to use their knowledge in Chinese language and characters use in the statements to consider as source of evidence. (Page 8 Lines H-L of the summing up)."

6. (ii) The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or increditable but only to confirm and support that which as evidence is sufficient and satisfactory and creditable, and corroborative evidence will only fill its role if it itself is completely creditable evidence. (Paragraph 16-4 of Archbold 41 Eddition). (Page 13 Lines H-I of the summing up)."

3. We mention ground 3 because we suspect that there is a common misunderstanding as to the direction which a judge may properly give where the evidence includes a document which is in a language other than that of the court. It goes without saying that the original document, if admissible, ought to be before the court, although frequently the judge or jury need have regard only to the translation, which is required by law and is usually admitted in accordance with the accepted practice of the court. The physical appearance of the original may sometimes be material and even a person who cannot read the document is entitled to have regard to that. However, what is submitted on behalf of the Applicants is that a juror who is able to read and understand the document is bound by the translation and is not entitled to use his own knowledge of the language in which the original is written to interpret it, unless he is called as a witness.

4. It seems to us that the difficulty envisaged in this matter is more apparent than real. There is no doubt that the jury is required to decide the facts upon the evidence before the court and the jurors must not act on their own private knowledge regarding the special facts of the particular case. That, however, is not the same thing as saying that a juror may not make use of his knowledge of matters of fact (as distinct from matters of opinion) which are of general knowledge, even though those matters may be known only to persons with a special experience. The position of the trained judge in this respect may be somewhat different from that of the lay justice or the juror. Thus Lord Widgery, C. J. said in Wetherall v Harrison 1976 1 All E. R. 241 at p. 244H:

"... I do not think that the position of a justice of the peace' is the same, in this regard, as the position of a trained judge. If you have a judge sitting' alone, trying a civil case it is perfectly feasible and sensible that he should be instructed and trained to exclude certain factors from his consideration of the problem. Justices are not so trained. They are much more like jurymen in this respect. I think it would be wrong to start with the proposition that justices use of their own local or personal knowledge is governed by exactly the same rule as is laid down in the case of trained judges. I do not believe that a serious restriction on a magistrate's use of his own knowledge or the knowledge of his colleagues can really be enforced. Laymen (by which I mean non-lawyers) sitting as justices considering a case which has just been heard before them lack the ability to put out of their minds certain features of the case. In particular, if the magistrate is a specialist, be he a doctor or an engineer or an accountant, or what you will, it is not possible for him to approach the decision in the case as though he had not got that training, and indeed I think it would be a very bad thing if he had to. In a sense, the bench of justices is like a jury, it is a cross-section of people, and one of the advantages which they have is that they bring a lot of varied experience into the courtroom and use it."

However, even a trained judge is entitled to make some use of his expert knowledge: thus a judge with a knowledge of mountaineering should not be asked to decide a question as to the sufficiency of an alpine rope without bringing his personal knowledge into play: see Reg. v Field ex parte white (1895) 64 L. J. M. C. 158, 160.

5. The position of the lay justice or juror is clearly stated by Lord Widgery in Wetherall v Harrison (supra) at p. 244B:

So I start with the proposition that it is not improper for a magistrate who has special knowledge of the circumstances forming the background to a particular case to draw on that special knowledge in interpretation of the evidence which he has heard. I stress that last sentence, because it ,would be quite wrong if the magistrate went on, as it were, to give evidence to himself in contradiction of that which has been heard in court. He is not there to give evidence to himself, still more is he not there to give evidence to other justices; but he can employ his basic knowledge in considering, weighing up and assessing the evidence given before the court is I think beyond doubt.

Furthermore, I do not see why he should not, certainly if requested by his fellow justices to, tell his fellow justices the way in which his specialised knowledge has caused him to look at the evidence. On no bench of justices should there be a leader who is so aggresive that he tries to assume responsibility for the decision and excludes the others, whether he is proceeding on the basis of a specialised subject or not, and that certainly goes for justices with specialised knowledge, because it would be quite wrong for the doctor in the present case to have gone into the justices retiring room and immediately proceeded to persuade all the justices because of the specialised knowledge. He ought really to have waited until asked to make contribution on his specialist subject. Whether he is asked or not, he should not press his views unduly on the rest of the bench. He should tell them in a temperate and orderly way what he thinks about the case, if they want to know, and then leave them to form their own conclusion if they wish so to do. Here again it is most important that the justice with specialised knowledge should not proceed to give evidence himself to his fellow justices contradictory to that which they have heard in the court below. He can explain the evidence they have heard; he can give his own view as to how the case should go and how it should be decided; but he should not be giving evidence behind closed doors which is not available to the parties."

Thus it would have been absurd that a Chinese juror in the present case should have been expected to ignore his knowledge of his native language when he entered the jury box, and it was entirely proper that the judge should remind the jurors that they might have had the advantage of hearing the Accused give evidence in languages with which they were familiar and that some of them had the advantage of being able to read in Chinese the statements which the Accused had written or signed.

6. YIP Kwai-yau v Reg. (1950) 34 H. K. L. R. 82 was a special case, where the judge had told the jury to rely on the Chinese version of some statements in preference to the English version and had invited the Chinese-speaking jurors to instruct the others as to the correct translation. That was going too far and we do not question the correctness of the decision. At p.92 the Court set out the general rule which we have ourselves applied.

7. As to ground 6 we accept that the purpose of the rule requiring corroboration. of an accomplice's evidence is to confirm evidence which is itself not incapable of belief. If the witness is manifestly unreliable, no amount of corroboration will make it reliable, although the "corroborating" evidence may be such as itself to support a conviction. On the other hand, if the accomplice's evidence is manifestly credible, the jury may, after considering the warning required by law, convict in spite of the absence of corroboration. There is, however, no rule that a judge must tell the jury in so many words that corroboration is impossible if it thinks that the accomplice's evidence is unreliable: he is entitled to assume that the jurors will use their common sense. Subject to one criticism the direction of the judge in the present case was impeccable. That one criticism arises from the passage where he said:

"I have to tell you that there is danger in convicting on the uncorroborated evidence of a self-confessed accomplice - the uncorroborated evidence. It is very desirable that where an accomplice gives evidence for the prosecution, His story should be corroborated by independent evidence leading to the conclusion that one or more accused were involved in the crime in question."

Standing alone that might have suggested that, if the evidence of the accomplice were corroborated in respect of one of the accused, that would justify the conviction of one or more of the other accused. However, the judge very clearly directed the jury that the evidence against each accused should be considered separately, and, reading the Summing-up as a whole, we were satisfied that there could have been no misunderstanding of the correct approach.

18th December 1984

Representation: