Re Chan Man Chak

HCMP000516/1979

IN THE SUPREME COURT OF HONG KONG

(CRIMINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 514 OF 1979

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MISCELLANEOUS PROCEEDINGS NO. 515 OF 1979

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MISCELLANEOUS PROCEEDINGS NO. 516 OF 1979

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MISCELLANEOUS PROCEEDINGS NO. 517 OF 1979

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Coram: Full Bench (O' Connor & Silke, JJ.)

Date of Judgment: 3 October 1979

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JUDGMENT

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1. In these proceedings counsel moves for writs of habeas corpus in respect of the applicants Cheng Kam-shui, Wan Kam Lap, Chan Man-chak and Lai Sang at present detained in Lai Chi Kok Prison pursuant to orders made by a magistrate under s.10 of the Extradition Act 1870, for their extradition to Panama to face the charge of murder of Mak Kwun-fo. There was evidence led before the learned magistrate that the applicants and Mak Kwun-fo were members of the crew of the Panamanian registered vessel "Tasman Career" sailing from Jeddah to Aden, in the course of a voyage that originated in China that there had been some quarrels between members of the crew regarding the alleged theft of cargo, leading to an incident on the evening of 4th February 1979 about 19.30 hours when a number of members of the crew, including the applicants, seized Mak Kwun-fo and threw him overboard when the vessel was in shark infested seas some ten miles from land. The vessel shortly thereafter turned back and a search was made but no trace of him was found.

2. The grounds on which the applicants apply for the writs may be summarised under three headings.

3. There was evidence that at a meeting attended by all the applicants in one of the cabins of the ship, the applicant Chan Man-chak said that the problems among the crew would not be solved by Mak Kwun-fo being dismissed from the ship, as he could still cause trouble by making a report ashore, and that it would be better if he were killed and thrown overboard. Shortly thereafter Mak came into, or was pushed into the cabin, was set upon and disarmed, taken from the cabin and thrown overboard. There was evidence pointing towards his having been stabbed or cut before being put overboard. The vessel was then 10.4 miles from the closest coast and the sea was rough with a wind velocity or force 6. The waters were shark infested. The vessel turned round at 21.30 hours and carried out a search but found no sing of Mak. It appears to us that from that evidence a jury would be entitled to find the death of Mak established beyond reasonable doubt. Defence counsel referred us to a Canadian case R. v. King (1995) 9 C.C.C. 426 for the authority that the fact of death must always be established by direct proof not by circumstantial evidence. We do not accept that as correctly stating the law. On a murder charge the fact of death can be proved by circumstantial evidence, We do not accept that as correctly stating the law. On a murder charge the fact of death can be proved by circumstantial evidence, R. v. Onufrejezyk 1955 1 All E.R. 247, The People (A.G.) v. Thomas 1954 Irish Repcrts 319, R. v. Horry (1952) N.Z.L.R. 111, Peacock v. R. (1912) 13 C.L.R. 619, R. v. Camb. (1949) Notable British Trials. In R. v. Onufrejezyk, Lord Goddard was in error in saying that there was no reported case in English law where there was a conviction of murder in the absence of any trace of the body. Such cases are the Warwickshire Case (3 Co. Inst. C.104, page 232), the Staffordshire Case (2 Hale Pleas of the Crown 290), Perry's Case (1660, 14 St. Tr. 1312), R. v. Hindmarsh (1792, 2 Leach 569), R. v. Armstrong (1875, 13 Cox C.C. 184), R. v. Camb (1949) Notable British Trials and see R. v. Davidson (1934) 25 Cr. App. R. 21. The Hindmarsh, Armstrong, and Camb cases arose out of bodies missing at sea. The alleged victims in the Warwickshire case, the Staffordshire case and Perry's case were later found to be still alive.

4. There was evidence which if accepted by a jury would warrant a finding that each of the applicants was a participant in the murder of Mak. We do not consider it necessary to recite such evidence. Mr. Pirie attacks the evidence on the ground that it contains inconsistencies which are of such a nature as to render it unreliable. He took us through the inconsistencies which, in part arose out of detailed cross examination of the witnesses. It appears to as that the inconsistencies are of the type that commonly arise in trials and are frequently made the subject of comment by counsel to the jury. They are not of such a quantity or quality as would warrant a finding of no case. The principal witness was Chan Kam-tong a seaman on the vessel. It would appear that he is an accomplice, and we are therefore pressed to say that the magistrate ought to have rejected his evidence unless it were corroborated. The answer to that is firstly, that there is on the face of it sufficient evidence of corroboration to be found in the evidence of a witness Chan Koon-sui, another sailor, who does not appear to be an accomplice and in fact it seems to us that his evidence alone, if believed, would warrant findings of guilt against each of the applicants. Secondly, whether or not there is corroborative evidence is not conclusive of the duty of the magistrate see R. v. Meunier (1894 2 Q.B. 415) In re Lui Shun Ha (M.P. 402 & 403/77). The duty of the magistrate is to commit if there is evidence which would justify the committal of the prisoner for trial, if the crime had been committed in Hong Kong. (see s.10 Extaradition Act 1870 and Article 11 of the Extradition Treaty with Panama). It is the duty of a magistrate to commit a person for trial if the evidence is such that a properly directed jury could be satisfied beyond reasonable doubt of guilt. It is not the duty of a magistrate, in committal or extradition proceedings, to decide what conclusion he would come to in respect of guilt if he were the jury. His decision whether or not to commit is not a decision of fact, but a decision of law that there is sufficient evidence to warrant conviction. A magistrate would not be entitled to commit if there was no evidence to establish an ingredient of the charge. He would also be entitled to refuse to commit if though there was evidence which would, if believed, establish the charge, the evidence is so manifestly unrealiable or discredited that no jury could reasonably be satisfied as to guilt. We consider A.G. v. Yau Ka-ping (1977 H.K.L.R. 76) to be in point, it deals with a rather similar issue. It is only within those narrow limits that a magistrate on committal proceedings should weigh the evidence. We are satisfied that in the cases of the applicants the magistrate was correct in finding there was sufficient evidence upon which they should be committed for trial if the offence had occurred in Hong Kong.

5. This ground arises in regard to the applicants Lai Sang and Wan Kam Lap. Before the magistrate there was led evidence of confessions made by those two applicants and the applicant Cheng Kam-shui. The magistrate tried the issue of admissibility under what is known as "the alternative procedure" and in the course of the hearing he ruled inadmissible that of Cheng Kam-shui. We made no express ruling an to the other confessions but counsel seem to be agreed that they were accepted in evidence, and we think that is correct. We consider that when there is a question of admissibility of evidence a magistrate should give a clear ruling so that the parties are aware what evidence he is considering on the ultimate issue. We were not addressed on whether or not the issue of admissibility of a confession ought to be tried on committal or extradition proceedings. The weight of authority is that it ought to be tried, see the following cases some of which are only indirect authority. In re Lui Shun-ha (M.P. 402 and 403/77), Reg. v. Ho Sui Fei 1976 H.K.L.R. 190, Gasparini's case, R. v. Gagvey (1888) 6 N.Z.L.R. 604, R. v. Treacey [1944] 2 All E.R.229 at 236 a-b, R. v. Pearson (1957) 117 C.C.C. 249, R. v. Nergren (1974 15 C.C.C. (2d) 30 and on further appeal (1976) 27 C.C.C. (2d) 488, in re Poitras, Shaw and Long and the Queen (1977) 88 C.C.C. (2d) 184 at 187, in re Rerina and Commissio (No. 2) (1977) 35 C.C.C. (2d) 237, Clarke on Extradition 4th Ed. 251. The contrary view was taken in R. v. Thibodeau (1956) 23 C.E. 285 at 293. See also Beese v. Governor of Ashford Remand Centre [1973] 3 All E.R. 689. We proceed on the basis that the magistrate was correct in trying the issue. Counsel has submitted to us that having tried the issue the magistrate ought to have rejected the confessions on the ground that it was not established that they were voluntary. We consider it was open to the magistrate, on the evidence, to be satisfied that the confessions were voluntary. We do not consider it necessary for us to set out the evidence or reasons why we come to that conclusion, as we are firmly of the opinion that opinion that even in the absence of the confessions, the learned magistrate would have made his order in respect of each applicant, see In re Lui Shun-ha (M.P. 402 and 403/77). We consider he would have been perverse if he had not done so.

6. These applications are dismissed.

Representation:

Nicholas F.F. Pirie (Edmund Cheung & Co.) for the applicants.

G.J. Plowman, Crown Counsel, for the Crown/respondent.