Tseng Ping Yee v. The Queen

CACC000662/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 662 OF 1968

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Coram: Blair-Kerr, J., Mills-Owens, J. and Huggins, J.

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JUDGMENT

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Blair-Kerr, J. :-

1. The appellant was convicted of using a motor vehicle registered as a dual purpose vehicle for use as a private car and goods vehicle on a road without third party insurance contrary to s. 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance 1951. He was fined $300.00 and disqualified for 12 months from holding a driving licence for private cars or dual purpose vehicles.

2. The case for the prosecution was that the appellant, who was the driver of a dual purpose vehicle, on the windscreen of which was a notice which read "Mongkok - Castle Peak Road", stopped his vehicle in Nathan Road and asked two police officers in plain clothes if they ...(illegible) desirous of being conveyed to Castle Peak Road; that the officers informed him that they were so desirous and boarded the vehicle that there were five other persons in the vehicle at the time; that when the officers said that they wished to alight at Un Chau Street, the appellant said: "one dollar"; and that the officers thereupon handed the appellant one dollar which he accepted.

3. The appellant did not challenge this evidence, and in cross-examination the solicitor appearing on his behalf elicited from one of the officers that at the police station the appellant, in response to a question, said that he did not have his certificate of insurance with him; that the appellant was requested to produce the certificate within a specified period; and that he had failed to do so.

4. The magistrate rejected a submission of no case to answer, whereupon the appellant's solicitor said that he was calling no evidence but that his client would make an unsworn statement and produce the policy of insurance in respect of the vehicle. The magistrate then informed the appellant's solicitor that he did not consider that in Hong Kong an accused person had any right to make an unsworn statement; whereupon the solicitor said that he did not wish to argue the matter because the appellant did not wish to say anything other than to produce the policy of insurance. The policy was in fact produced by another witness.

5. The first ground of appeal is that the magistrate was wrong in law in holding that the appellant had no right to make an unsworn statement. It is arguable that this question does not strictly arise because, according to the appellant's solicitor, his client did not wish to adduce any evidence other than to produce the policy of insurance. On the other hand the magistrate gave a definite ruling; and I cannot speculate on what the appellant might have said if he had felt free to elect to make an unsworn statement. Counsel on both sides are in agreement that the point does arise; and I am content to treat it as a valid ground of appeal.

6. Before dealing with Counsel's submissions, I think it is advisable to trace the history of the rule which now obtains in England whereby an accused person, although he elects not to give evidence on oath, may nevertheless make an unsworn statement. This will necessarily involve a cursory glance at the history of the rule which obtained in England until 1898 (and in Hong Kong until 1906) whereby an accused person was precluded from giving evidence in his own defence.

7. At one time interest in a suit was considered to disqualify a person from giving evidence; and at Common Law the parties were incompetent as witnesses in all cases. However, this rule was not followed in criminal matters. Indeed, until the Revolution of 1688, the interrogation of a prisoner upon arraignment formed an important part of his trial. In Stephen's History of the Criminal Law of England the learned author, writing in 1882, has this to say⁽¹⁾:-

"..... down to the Civil Wars ..... the interrogation of the prisoner on his arraignment formed the most important part of the trial. Under the Stuarts questions were still asked of the prisoner, though the extreme unpopularity of the ex officio oath, and of the Star Chamber procedure founded upon it had led to the assertion that the maxim 'nemo tenetur accusare seipsum' was part of the law of God and of nature .................................... Soon after the Revolution of 1688, the practice of questioning the prisoners died out, and as the rules of evidence passed from the civil to the criminal courts, the rule that a party was incompetent as a witness which ......... prevailed till 1853, was held to apply to criminal cases."

Clearly the object of the rule was to protect accused persons from judicial questioning. Whether the effect of the rule in those days was that accused persons were henceforth to keep silent is not entirely clear. They had no right to legal representation, at any rate in cases of felony; and persons not legally qualified do not draw any clear-cut distinction between an "address" to the jury on the evidence which has been adduced against them and giving their own version of the facts. Indeed, it is not apparent from the reports of some of the early cases that the courts were alive to any such distinction. At any rate, during the 18th century, when there were so many capital offences on the statute book, it is easy to visualise the dilemma in which the judges found themselves. As Mathers C.J. said in R. v. Krafchenko⁽²⁾:-

"..... it was manifest that a great injustice might often be done unless the story of the accused was allowed to get before the jury in some form. To meet that difficulty judges adopted the practice of permitting the prisoner to make an unsworn statement from the dock and to address the jury on his own behalf."

8. However, difficulties immediately occurred when the Prisoners Counsel Act was enacted in 1836. This Act gave prisoners charged with felony the right to make their full defence by counsel; and from a study of the decisions in R. v. Boucher⁽³⁾; R. v. Beard⁽⁴⁾; R. v. Malings⁽⁵⁾; R. v. Walkling⁽⁶⁾; R. v. Burrows⁽⁷⁾; R. v. Rider⁽⁸⁾; The Queen v. Dyer⁽⁹⁾; R. v. Williams⁽¹⁰⁾; R. v. Taylor⁽¹¹⁾; R. v. Weston⁽¹²⁾; R. v. Shimmin⁽¹³⁾; R. v. Millhouse⁽¹⁴⁾; and R. v. Doherty⁽¹⁵⁾; (all of which are summarised by Mathers C.J. in R. v. Krafchenko⁽²⁾) it is evident that from 1837 to 1898 there was a considerable measure of uncertainty as to the circumstances in which a prisoner who was defended by counsel might be permitted to give the jury his version of the facts and to comment on the evidence otherwise adduced. For example, in Boucher⁽³⁾, at the conclusion of the prosecution case, the prisoner's counsel addressed the jury. The prisoner then asked leave of the court to make a statement; and the judge (Coleridge J.) refused to allow him to do so saying; "..... your counsel has spoken for you. I cannot hear both"; and there is nothing in the report to indicate that the prisoner had been permitted to give his version of the facts before his counsel addressed the jury.

9. Certain counsel were of the opinion that they could inform the jury of facts which had been communicated to them by their clients, that is to say to give second-hand evidence not on oath from the bar. This was frowned upon by the judges; and in R. v. Beard⁽⁴⁾ Coleridge J. said:-

"I cannot permit a prisoner's counsel to tell the jury anything which he is not in a position to prove. If the prisoner does not employ counsel, he is at liberty to make a statement for himself and tell his own story; which is to have such weight with the jury, as in all the circumstances considered, it is entitled to; but if he employs counsel he must submit to the rules which have been established with respect to the conducting of cases by counsel."

Upon receiving this ruling, counsel for the prisoner then addressed the jury "on the facts already in evidence".

10. In R. v. Malings⁽⁵⁾, the prisoner's counsel in addressing the jury expressed regret that as the prisoner was defended by counsel he was not allowed to make his own statement. However, Alderson B. ruled as follows:-

"I see no objection in this case to his doing so; I have read the statement he made before the magistrate. I think it is right that a person should have the opportunity of stating such facts as he may think material, and that his counsel should be allowed to comment on that statement as one of the circumstances of the case."

11. In R. v. Walkling⁽⁶⁾, at the close of the case for the prosecution, counsel proposed that the prisoner should make his own statement before his counsel addressed the jury, citing Malings⁽⁵⁾ in support. Gurney B. is reported as having ruled as follows:-

"My brother Alderson informs me that he allowed it in the instance which has been referred to , which was a very peculiar case, and as it has been already permitted before at these assizes. I will not refuse to allow it in this instance, but I think that it ought not to be drawn into a precedent."

12. In R. v. Burrows⁽⁷⁾, Bosanquet J. refused to allow a prisoner defended by counsel to make a statement to the jury. The report of the submission of counsel for the prisoner reads:-

"..... after the evidence for the Crown was closed, he "(counsel)" stated that (his client) wished to make a statement of the facts to the jury, and that, afterwards, he should have a right to comment to the jury, as well on the statement made by (his client) as on the facts proved; ................ Before the alteration introduced by the Act which gave to prisoners the benefit of full defence by counsel, a prisoner was allowed to make his own statement of the facts; and, unless he were allowed to do so still, he would be put in a worse situation by being allowed a defence by counsel, whom his lordship would, probably, consider to be bound not to state facts of which he had no proof, and not to be allowed to make a statement of facts, merely as that given by the prisoner."

The learned judge ruled this :-

"..... I think that the recent statute, giving to prisoners the benefit of defence by counsel, could only be meant to put them in the same situation, in cases to which ...(illegible) applies" (namely felonies), "as they were in before, when defended by counsel, in questions of misdemeanours; and in those cases, certainly, a defendant could not be allowed the privilege of two statements, one by himself and another by counsel. .......... I think two speeches cannot be allowed".

13. In R. v. Rider⁽⁸⁾, the prisoner was charged with murder. His counsel asked that his client should be permitted to make a statement, to the jury before he addressed them, citing Malings⁽⁵⁾ and Walkling⁽⁶⁾. Patterson J. refused to allow this. He is reported as having said:-

"The general rule certainly ought to be that a prisoner defended by counsel should be entirely in the hands of his counsel ............ If the prisoner were allowed to make a statement and stated as a fact anything which could not be proved by evidence the jury should dismiss that statement from their minds; but if what the prisoner states is merely a comment on what is already in evidence his counsel can do that much better than he can."

14. A different view appears to have been taken by Alderson B. in The Queen v. Dyer⁽⁹⁾. Upon counsel for the prisoner remarking upon the hardship of his client's position in that he could not give evidence to contradict the statements of the witnesses against him, the learned judge, interrupting, said:-

"..... the prisoner might make his own statement in explanation or contradiction of the evidence against him."

Counsel replied:-

"There are contradictory decisions upon that. Some learned judges have refused to permit a prisoner who is represented by counsel to make a statement. In R. v. Malings⁽⁵⁾ ..... Patterson J. permitted the prisoner to do so, but only under special circumstances as it is expressly stated in the report."

Whereupon, Baron Alderson said:-

"I would never prevent a prisoner from making a statement though he has counsel. He may make any statement he pleases before his counsel addresses the jury, and then his counsel may comment upon that statement as part of the case. If it were otherwise the most monstrous injustice might result to prisoners. If the statement of the prisoner fits in with the evidence it would be very material and we should have no right to shut it out."

15. The next case in which the practice of permitting a prisoner to make an unsworn statement was discussed appears to be R. v. Williams⁽¹⁰⁾. Part of the report in Volume I of Cox's Criminal Cases reads:-

The report of R. v. Taylor⁽¹¹⁾ reads:-

"At the close of the case for the prosecution, the Counsel for the prisoner asked his Lordship's permission for the prisoner to be allowed to state his defence to the jury before he addressed them. There were cases in which, under peculiar circumstances, such a course had been permitted. Byles J. - Show me your authority."

The judge's attention was then drawn to Dyer⁽⁹⁾ and Malings;⁽⁵⁾ whereupon he ruled as follows:-

"I cannot receive as an authority the first case handed up, and as to the second, no special circumstances exist in this case. I cannot allow the course proposed to be pursued. I foresee to what it will lead: to prisoners being examined on their own behalf without the sanction of an oath, and then a speech commenting upon their statements; but I will allow the prisoner to exercise the option of either speaking for himself or of having his counsel to speak for him."

The report continues:-

"The prisoner then addressed the jury on his own behalf, and his Lordship refused to allow his Counsel afterwards to go to the jury."

16. In R. v. Krafchenko⁽²⁾, Mathers C.J., referring to a decision of Martin B. in 1860, says⁽²⁾:-

"In 1860 Martin B. after consulting Channell J. allowed a prisoner to make a statement before his counsel's speech on the authority of the Malings case (there called Martin), though he said he was entirely opposed to the practice of allowing prisoners to make any statement to the jury when the prisoner was defended by counsel, yet, as there was a precedent, he allowed it because of the importance of the case. He, however, considered it a bad practice."

17. In 1881, the English judges resolved as follows:-

"..... it is contrary to the administration and practice of the criminal law as hitherto allowed that counsel for prisoners should state to the jury, as alleged existing facts, matters which they have been told in their instructions on the authority of the prisoner but which they do not propose to prove in evidence."

18. It appears that this resolution was passed as a result of the procedure permitted by Lord Cockburn C.J. in R. v. Weston⁽¹²⁾. In that case, the prisoner was charged with murder and his counsel began his address to the jury by saying that he regretted that he could not give the prisoner's account of the matter; whereupon, Cockburn C.J. ruled that the prisoner might do so because:-

"..... as the prisoner's counsel was in place of the prisoner, and entitled to say anything which he might say, for which he would be entitled to consideration and credence if consistent with the rest of the evidence."

19. The ruling of Cave J. in R. v. Shimmin⁽¹³⁾ (so far as relevant) was given in these words:-

"Every prisoner was entitled to have an opportunity of making a statement and offering his explanation of the charges alleged against him .................... whether he is defended by counsel or not .......... at the conclusion of his counsel's speech, with this proviso, that which he states from the dock is subject to the right of reply on the part of the prosecution, as being in the nature of new matter laid before the jury. That was the rule he intended to follow, and it was one with which the other judges of the high Court concurred."

20. It appears, however, that the judges were not unanimous; and in R. v. Millhouse⁽¹⁴⁾ Lord Coleridge C.J. refused to extend this rule to cases in which the prisoner proposed to call witnesses. Having said that he did not agree with the ruling of the majority of the judges that a prisoner could make a statement at the conclusion of his counsel's speech, Lord Coleridge said:-

21. In 1898 the Criminal Evidence Act was passed. Section I of that Act declared that every person charged with an offence shall be a competent witness for the defence. However, para. (h) thereof reads:-

"Nothing in this act shall affect .................................. any right of the person charged to make a statement without being sworn."

22. In 1906, the Criminal Evidence Ordinance was enacted in Hong Kong. Section 2 of that Ordinance appears to be an exact copy of s.1 of the 1898 Act with one significant exception: para (h) of section 1 of the 1898 Act was omitted; and the Hong Kong provision has remained on the statute book in substantially the same form for the last 62 years. It now appears as s.54 of the Criminal Procedure Ordinance.

23. Counsel for the Appellant submitted that in England by 1906 the practice of permitting a prisoner to make an unsworn statement in lieu of giving evidence on oath had become well-established; that the Courts of the Colony were obliged to follow this practice as enjoined by s.10 of Ord. 9 of 1899; that the existence of s.10 of Ord. 9 of 1899 rendered the enactment in Hong Kong of a provision in terms similar to para (h) of s.1 of the Criminal Evidence Act 1898 unnecessary; and that this court should conclude that para (h) was omitted from the local Ordinance for that reason.

24. Crown counsel submitted that prior to 1898 in England the only reason why the judges, with some hesitation, permitted a prisoner to make an unsworn statement was the fact that the prisoner was debarred by law from giving evidence on oath; that when the right to give evidence on oath was granted to prisoners in 1898, the whole basis on which the courts had permitted them to make unsworn statements disappeared; that henceforth prisoners would have had no right to make such statements but for para (h) of s.1 of the 1898 Act; that the reason para (h) was omitted from the Hong Kong ordinance was because the Legislature intended that whatever the practice had been in the Hong Kong courts during the 19th century, accused persons should no longer be entitled to make unsworn statements; that s.10 of Ord. 9 of 1899 which required the Hong Kong Courts to follow the practice of the English courts had therefore no application of the Hong Kong courts as from 1906 should be governed by s.2 of the Criminal Evidence Ordinance, and this Ordinance intentionally made no provision for the continuance of the practice whereby accused persons were entitled to make unsworn statements.

25. By the end of the 19th century in England, the practice of permitting prisoners who were not defended by counsel to make unsworn statements appears to have been well-established; but if a prisoner was defended by counsel, it is doubtful whether it can be said that there was any settled practice in all cases even as late as 1898. The ruling of Stephen J. in Doherty⁽¹⁵⁾ appears to have settled the practice in cases where the prisoner called no witnesses. But Lord Coleridge's ruling in Millhouse⁽¹⁴⁾ does not appear to have been considered by the judges; and the practice of the courts cannot be said to have been finally settled in cases where the prisoner was defended by counsel and called witnesses.

26. The only right conferred upon a prisoner by the 1898 Act was the right to give evidence on oath; and it is perhaps noteworthy that para. (h) does not refer to the right of a person charged to make an unsworn statement but to any right. It may be that parliament was not clear as to whether there was any uniform practice in the courts, and intended to leave it in the hands of the courts to say whether accused persons should henceforth have a right to make an unsworn statement.

27. Be that as it may, the first case to come before the English courts after the passing of the 1898 Act was R. v. Pope⁽¹⁶⁾. This case was tried before Mr. Justice Phillimore at the Lewes Assises in July 1902. The learned judge appears to have been unaware of the existence of para (h); and, that being so, his reaction to a request by the prisoner that he be permitted to make an unsworn statement to the jury from the dock, is not without significance. He is reported to have said:

"Now that the prisoner is entitled to give evidence on his own behalf under the Criminal Evidence Act 1898, is not his right to make a statement gone?"

It was only when his attention was drawn to para. (h) that he permitted the prisoner to make an unsworn statement; and in England the practice has continued to this day.

28. The question we are now considering has come up for consideration in a number of Canadian cases. It appears from the judgment of Mathers C.J. in R. v. Krafchenko⁽²⁾ that in Canada prisoners were not permitted to give evidence on oath till this right was conferred upon them by the Canada Evidence Act 1893 i.e. five years before the corresponding enactment in England. At page 250, the learned Chief Justice says:-

29. This decision was approved by the British Columbia Court of Appeal in R. v. McNab⁽¹⁷⁾. At p. 587, O'Halloran ...(illegible) said:

"It ought to be made clear that the passage of the Canada Evidence Act 1893 brought to an end the right of an adult accused to make a statement not under oath."

30. The Canada Evidence Act 1893 is not available in Hong Kong; but it would appear that this Act was substantially to the same effect as the 1898 Act in England, except that it made no mention of any right of an accused person to make an unsworn statement. I do not know whether there was any provision in the statute law of Canada comparable to s.9(3) of the Criminal Procedure Ordinance. If there had been any such provision, one might have expected some reference to have been made to it in the judgments of the Canadian Courts although this does necessarily follow. It depends upon the view one takes of enactments such as the Canada Evidence Act 1893 the 1898 Act in England and the 1906 Ordinance in Hong Kong.

31. One of the earliest local enactments applying the practice of the English courts to the courts of the Colony was Ordinance No. 6 of 1845, s.4 of which, so far as applicable, reads:

Section 8 of Ord. 12 of 1873 was to the same effect. That section read:-

32. The first comprehensive enactment dealing specifically with criminal procedure was the Criminal Procedure Ordinance No. 9 of 1899. Section 10 of that Ordinance provided that:

"Subject to the provisions of this Ordinance and of any other statute for the time being in force, the practice and procedure of the Court shall be, as nearly as possible, the same as the practice and procedure for the time being in force in criminal causes and matters in the High Court of Justice and the Courts of Assize in England."

33. It is clear that from the time Hong Kong became a Colony, the intention of the Legislature was that the courts of the Colony should follow the English practice except in so far as local legislation provided otherwise.

34. Information concerning the practice of the courts of the Colony during the 19th Century is scanty; and it is not possible for us to say to what extent the judges of the Colony permitted accused persons to make unsworn statements. But, assuming that such a practice had to some extent grown up, what was the intention of the Legislature in omitting from s.2 of the 1906 Ordinance a provision in terms similar to para (h) of s.1 of the 1898 Act?

35. I am clearly of the opinion that the intention was to abolish any practice of permitting accused persons to make unsworn statements if such practice existed. I entirely agree that the Legislature could have expressed itself more clearly. The Ordinance could have said expressly that any existing right to make an unsworn statement is abolished. But the fact that the Legislature could have expressed itself better does not preclude this court from endeavouring to ascertain what was the intention behind the enactment.

36. If, in conferring a right to give evidence on oath it was the intention that the discretion of the courts to continue or discontinue any existing practice of permitting unsworn statements, should not be fettered in any way, why copy s.1 of the 1898 Act word for word but deliberately omit para (h).? I do not think para (h) was omitted because the intention was to permit the courts to follow whatever practice the English courts might choose to adopt by an application of s.10 of Ord. 9 of 1899 (now s.9(3) of the Criminal Procedure Ordinance). In my view the intention was to prescribe the manner in which an accused person should henceforth be permitted to testify before a court of law. The section says that accused persons may henceforth testify on oath. The section does not contemplate any other method of giving evidence; and I find the common sense approach of the Canadian courts in this matter of the greatest assistance. In my view, what was granted to accused persons prior to 1898 in England, prior to 1893 in Canada, and prior to 1906 in Hong Kong, was a concession or privilege, that is to say the privilege in certain circumstances of making unsworn statements because they were debarred from giving evidence on oath. The practice would never have been permitted at all if prisoners had been allowed to testify; and if para. (h) had not been inserted in the 1898 Act, in all probability the practice of permitting prisoners to make unsworn statements in English courts of law would have ceased.

37. I feel that I ought to say now that I have looked at the speech of the Attorney General, Sir H.S. Berkeley, (as reported in the "Hong Kong  Hansard") when he moved the second reading of the Bill to amend the Law of Criminal Evidence in 1906. On this occasion, he is reported as having said:-

"There can be no doubt that in many cases if a person had been allowed to make his statement on oath, and had then been cross-examined by prosecuting counsel, he would not have been able to exculpate himself. For many years judges have allowed prisoners to make statements. There is no authority in law for that, but prisoners have been in the habit of making statements. The Bill we now have before us permits a prisoner to give evidence on his own behalf. It does not compel him to go into the box, but if he does, he is liable to be cross-examined."

Of course, courts are not permitted to take account of Parliamentary proceedings when endeavouring to interpret an enactment. Courts may only look at the language of the enactment; and I hope that I have not been influenced in any way by the speech of the Attorney General. Nevertheless, having reached my conclusion, it is of some interest to read what the draftsman had to say as to his intentions in presenting his Bill to the Legislature.

38. Counsel for the appellant submitted, in the alternative, that although it may well have been open to the courts at one time to take the view that the intention of the 1906 Ordinance was that the courts should no longer permit accused persons to make unsworn statements, as the practice has been allowed to continue for 62 years, it has become so deeply entrenched in our criminal procedure that it should be left to the Legislature to say whether the practice should now be discontinued.

39. The magistrate deals with this argument in this way:-

"I do not consider it is a case where a practice has grown up that must be followed or that the maxim 'communis error facit jus' applies. That maxim is usually applied because people have acted on the law as it was thought to be and managed their affairs accordingly and that it would therefore be now unjust to declare the law to be otherwise. It is more commonly applied to rights of property and principles of liablility, see Hickman v. Potts (1940) 1 KB at pp. 44 and 45. No one has acquired rights or I presume acted on the basis that if prosecuted they would be entitled to make an unsworn statement. Even if they had, such belief would have no merit."

I agree. If it was wrong to permit accused persons to make unsworn statements subsequent to 1906, the sooner the practice is discontinued the better. In my view, there is no logical reason today for allowing it to continue. I see no reason why are accused person should be placed in a privileged position when testifying before a court of law. If the evidence of all other witnesses is liable to be tested by cross-examination, so should statements made by an accused person upon his trial be so tested. In my view unsworn statements made by an accused upon his trial are in an entirely different position from any statement which he may have made at the conclusion of committal proceedings. The latter may be proved at his trial as indeed may any statement which he may have made to the police. The point surely is that at the trial no jury should be asked to weigh evidence on oath and tested by cross-examination against unsworn statements by the accused which have not been so tested.

40. If, as my Brothers feel, the Legislature has not used language sufficiently apt to abolish the practice of permitting accused persons to make unsworn statements, I hope that the earliest opportunity will be taken to introduce further legislation to achieve this result.

41. Speaking for myself, I feel indebted to the learned magistrate for raising this point.

Representation:

(1) Volume I - p. 440.

(2) (1914) 17 D.L.R. at p.245

(3) (1837) 8 C. & P. 141; 173 E.R. 433

(4) (1837) 8 C. & P. 142; 173 E.R. 434

(5) (1838) 7 C. & P. 242; 173 E.R. 478

(6) (1838) 8 C. & P. 243; 173 E.R. 479

(7) (1838) 2 Mo. & Rob.124; 174 E.R. 236

(8) (1838) 8 C. & P. 539; 173 E.R. 609

(9) (1844) 1 Cox 113

(10) (1846) 1 Cox 363

(11) (1859) 1 F. & F. 535; 175 E.R. 841

(12) (1879) 14 Cox 346

(13) (1882) 15 Cox 122

(14) (1885) 15 Cox 622

(15) (1887) 16 Cox 306

(16) (1902) 18 T.L.R. 717

(17) (1945) 1 D.L.R. 583.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 662 OF 1968

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Coram: Blair-Kerr, J., Mills-Owens, J. and Huggins, J.

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JUDGMENT

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Mills-Owens, J. :

42. Section 1(1) of the Criminal Evidence Act, 1898 (of England) gave an accused person the right to testify on oath in his own defence. Para. (h) of the subsection provided that - "Nothing in this Act shall affect ....... any right of the person charged to make a statement without being sworn". The matter of accused persons being rendered competent to give evidence on a charge of accused persons being rendered competent to give evidence on a charge of felony had, of course, been debated for many years. Between 1872 and 1897 some twenty-five Acts rendered the accused and his wife competent witnesses in respect of certain offences (see Allen's "Criminal Evidence Act, 1898", published on the passing of the Act, at pp.xix and 56); the Act of 1898 was the first to make general provision.

43. Before the Prisoners Counsel Act, 1836 (of England) enabled persons accused of felony to be defended by counsel the judges had mitigated the severity of the common law by permitting them to make unsworn statements, on which they could not be cross-examined; acting on the principle that no man should be condemned unheard. The reason why at common law the accused was not allowed to testify an oath remains, perhaps, in doubt. With the passing of the Act of 1836 the position as to unsworn statements became, for a time, uncertain; some judges considered that now that the accused had counsel to speak for him, the right to make an unsworn statement was gone; other judges took a different view. Allen (ibid. p.12) says:-

In the case of Doherty⁽¹⁾, referred to by Allen, the eminent Stephen, J. in his address to the jury, explained his views as follows:-

"The Prisoners' Counsel Act was passed in 1837, and this declared that a person had a right to make a full defence by counsel, and accordingly that has since been done. It has been considered by some of the judges that the effect of this Act is to take away from the prisoner any right to make any statement on his own account. I do not think that that is the effect of the Act, and I think so for various reasons, but there is one to which I attach much importance. This reason is, that in trials for high treason prisoners were not allowed to be defended by counsel, and it was only by an Act passed in the reign of Will. III., afterwards supplemented by an Act passed in the beginning of the reign of Queen Anne, that prisoners were allowed to be defended by counsel in cases of high treason. .................................................... But it was certainly the practice in England down to the Cato Street conspiracy trial, that prisoners were allowed in cases of high treason, to make statements, and I cannot see why the Act of 1837, the Prisoners' Counsel Act, should be regarded as taking from prisoners the right to make a statement in cases of felony, while a similar Act does not take away the right in cases of high treason. That was one of the principal reasons which influenced me in taking the course I did yesterday in this trial, in allowing the prisoner to make the statement he made to you."

44. Sir Carleton Allen (59 L.Q.R. 22) refers to the practice of allowing a prisoner to make an unsworn statement as "an interesting example of law made purely by judicial practice".

45. I would hold that the right to make an unsworn statement was firmly established, in England, as a practice amounting to a rule of law at the time of the passing of the Act of 1898. This, I think, is exemplified by the number of British territories into whose codes of criminal procedure the right was expressly embodied at various dates.

46. As Dr. Glanville Williams says in his "Proof of Guilt" (2nd Edn. at p.71) the Act of 1898 'somewhat anomalously preserved the compromise arrangement' of allowing the prisoner to make an unsworn statement upon which he could not be cross-examined. This, of course, refers to para. (h) of section 1(1) of the Act.

47. The argument before us, raised by the magistrate himself who decided it in favour of the prosecution, is that since para. (h) was omitted from the Hong Kong equivalent of the Act of 1898, namely the Criminal Evidence Ordinance 1906 (now s.54 of the Criminal Procedure Ordinance (Cap. 221)) the right to make an unsworn statement was thereby abrogated. The argument is based on the judgment of Mathers, C.J. in the Canadian case of R. v. Krafchenko⁽²⁾ when he said that he regarded it as:-

"extremely probable that had it not been for the saving clause in the Imperial Evidence Act 1898, it would have been there held that the privilege of making an unsworn statement was abrogated by that Act. The privilege was granted to prisoners because they were debarred from giving evidence on oath and for that reason alone. When the law was changed and the right accorded to them to tell their story on oath as any other witness the reason for making an unsworn statement was rmoved."

In other words, 'cessante ratione legis, cessat ipsa lex'. The relevant Act in Canada was the Criminal Evidence Act, 1893 - passed, as has been observed, some five years before the English Act. (There were similar enactments in India, the United States and Australia before the 1898 Act ("Proof of Guilt" p.48)). The case of Krafchenko⁽²⁾ was heard some 21 years after the enactment of the Canadian Act, but there had been earlier debate; in R. v. Aho⁽³⁾, in 1904, the majority of the then Canadian Court for Crown Cases Reserved appeared to consider, arguendo, that the right to make an unsworn statement remained (see R. v. Frederick⁽⁴⁾).

48. The Canadian view has not been followed elsewhere. In Queensland the Court of Criminal Appeal, in R. v. McKenna⁽⁵⁾, made no comment on the decision of Mansfield, S.P.J. that the prisoner was entitled to make an unsworn statement (see Cowan & Carter's Essays on the law of Evidence" at p.208). In the New Zealand case of Kerr v. R.⁽⁶⁾ before a strong Court of Appeal, the only question finally argued was whether the accused should make his statement before his witnesses were called. The court said:-

"          In the result, therefore, the position in Queensland can be said to be only to some extent uncertain. In New Zealand, we have no authority in point. The nearest approach is R. v. Perry and Pledger ((1920) N.Z.L.R. 21), in which the practice of allowing an accused person to make an unsworn statement as part of his defence was recognized. In the judgment of the Court, the making of such a statement is described as 'a right or privilege'. It is to be observed, however, that s.5 of the Evidence Act, 1908, which first appeared in a somewhat different form as s.398 of the Criminal Code Act, 1893, contains no proviso such as appears in para. (h) of s.1 of the Criminal Evidence Act, 1898 (Eng.), which reads:

It would appear that, but for this provision, Phillimore, J., in R. v. Pope ((1902) 18 T.L.R. 717), might have been disposed to hold that the right to make an unsworn statement was revoked by the statutory right to give evidence. It is a view which has much to commend it, and has won specific acceptance in at least one of the superior Courts of Canada: see R. v. Krafchenko ((1914) 17 D.L.R. 244). That question, however, does not arise before us, because counsel for the Crown did not submit that the right or privilege no longer exists. It may perhaps be that in future proceedings the existence of that right or privilege will be challenged. Meantime, however, the right or privilege must be recognised by this Court, ...".

The court went on to deal with another point.

49. As it appears to me, the Canadian case of Krafchenko⁽²⁾ is not of compelling authority in Hong Kong. It is clear from R. v. Aho⁽³⁾ that it was very early after the Canadian Act of 1893 that the matter was raised of the accused having the right to make an unsworn statement as an alternative to exercising the right to give evidence conferred by the Act; but the issue appears to have remained a live issue in Canada as late as 1931 (see R. v. Frederick⁽⁴⁾) In Hong Kong, so far as we are made aware, the present case is the first occasion since the Criminal Evidence Ordinance, 1906 was passed that the right to make an unsworn statement has been challenged. We have not been referred to any case in the Hong Kong Law Reports, commencing in 1905, throwing doubt upon the right. On the contrary Mr. Justice Huggins has been able to refer to the case of R. v. Kwok Leung⁽⁷⁾ decided in the Full Court of Hong Kong in 1909, expressly recognising the right.

50. Decisions in other jurisdictions are, of course, to be applied, if at all, subject to local enactments and circumstances. In the case of Hong Kong, at the time the Ordinance of 1906 was passed there existed the provisions of s.10(3) of the Criminal Procedure Ordinance 1899 (re-enacting earlier similar legislation, and now being s.9(3) of the Criminal Procedure Ordinance (Cap.221)). These provisions read as follows:-

"          (3) Subject to the provisions of this Ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters (including trials for treason or misprision of treason) shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England."

In my view, it is perfectly feasible that, following the Ordinance of 1906, the view came to be held by the courts of Hong Kong that s.10(3) of the 1889 Ordinance preserved the right of making an unsworn statement - whatever the intentions of the sponsors of the Ordinance of 1906. It is evident that there was no positive enactment abrogating the right. The argument that it was abrogated rests entirely on implication, arising from the absence from the Ordinance of 1906 of a provision similar to para. (h) of s.1(1) of the English Act of 1898; that is to say, the argument is that the Ordinance of 1906 in conferring a right, the right to testify on oath, took away a right, the right to make an unsworn statement, impliedly and not by positive enactment, although at the same time leaving English practice and procedure to govern the conduct of criminal trials. I can well understand that the courts were not prepared to take that view.

51. The omission of para. (h), therefore, is wholly acceptable of explanation on the ground that it was unnecessary by reason of the provisions of the Ordinance of 1899 applying the English practice and procedure. Obviously, at this period, and so it had been for many years, Hong Kong was closely following English law and practice; the judges in Hong Kong can hardly have been unaware of the position in England, both before and after the Act of 1898. It could hardly have escaped their notice that the Criminal Procedure Ordinance of 1899 applied English practice and procedure as "from time to time and for the time being". It is not as if the provision applying the English practice and procedure and the provision conferring the right to testify an oath were contained in the same enactment. The earlier enactment was the Ordinance of 1899 applying the English practice and procedure, and that I think included the right to make an unsworn statement, as a matter of practice amounting to a rule of law. Moreover, in my view, the matter has crystallised in the ensuing years. Today, as I think, it is no longer possible to hold that the long-standing, and much exercised, right of making an unsworn statement vanished in 1906. If the right grew out of the practice of the judges in England before 1898, equally it has grown out of practice in Hong Kong since 1906, if, indeed, it was ever abrogated by implication in 1906 as is suggested. But, as I have said, I doubt that it was ever so abrogated. As Lord Halsbury said in McLaughlin v. Westgarth⁽⁸⁾, a 'great many things are put into a statute ex abundanti cautela'; and this may well have been the view taken by the courts in Hong Kong in respect of the omission of paragraph (h) from the Ordinance of 1906.

52. The courts of Hong Kong have been ready to give consider scope to the provisions applying the English practice and procedure in criminal cases. Thus, for example, it has been held that on a charge of murder a plea of guilty of manslaughter may be accepted, although the laws of Hong Kong contain no specific provision such as that contained in section 39 of the Criminal Justice Administration Act, 1914. In the latest edition of the laws prepared in the Legal Department there is included among the enactments stated to be applicable to Hong Kong (by virtue of section 9(3) of Cap. 221) the Criminal Procedure (Right of Reply) Act, 1964. The Judges' Rules are followed; trials on voire dire are held; accomplices' evidence is required to be corroborated; and so on. It is difficult to think of any rule of English practice or procedure which is not followed in Hong Kong. On the contrary, it forms the basis of our criminal proceedings.

53. As to the argument that the right to make an unsworn statement was abrogated in 1906, by implication, I would refer to the dictum of Lord Devlin in National Assistance Board v. Wilkinson⁽⁹⁾ that it "is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words pointing unmistakably to that conclusion". (See also Leach v. R.⁽¹⁰⁾ and Levinger v. R.⁽¹¹⁾ "The statute being in the affirmative, leaves the common law unaffected"). The principle seems to be particularly apposite in the present case.

54. Summarising, I would hold that the right to make an unsworn statement was established in Hong Kong at the time the Criminal Evidence Ordinance, 1906 was passed; that Ordinance did not, by implication, affect the right; even if it did, the right has since become and remains firmly re-established as a practice amounting to a rule of law. It may be noted that the opposite conclusion would result in anomalies; in Courts-martial the right would continue unaffected, and in committal proceedings the accused person would retain the right to make an unsworn statement which would then be available before the jury (see s.82 of the Magistrates Ordinance (Cap.227) and s.56 of the Evidence Ordinance (Cap.8)). I do not, however, rest my conclusion on these anomalies, but mainly on the principle that fundamental rights are not to be taken away except by clear enactment.

55. I would therefore allow the appeal.

(1) (1887) 16 Cox C.C. 306.

(2) (1914) 17 D.L.R. 244.

(3) (1904) 8 Can. C.C. 453.

(4) (1931) 57 Can. C.C. 340.

(5) (1951) St. R. Qd. 299, 308.

(6) (1953) N.Z.L.R. 75.

(7) 4 H.K.L.R. 161, 163.

(8) (1906) 75 L.J.P.C. 117, 118.

(9) (1952) 2 Q.B. 648.

(10) (1912) A.C. 305, 309, 311.

(11) (1870) L.R. 3 Q.C. 282, 290.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 662 OF 1968

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Coram: Blair-Kerr, J., Mills-Owens, J. and Huggins, J.

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JUDGMENT

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Huggins, J:

56. Mr. Justice Blair-Kerr has given an exhaustive survey of the 19th century cases in England with a view to ascertaining whether at the date of the Criminal Evidence Act 1898 there was a right to make an unsworn statement. The draftsman of the Act appears to have considered it uncertain whether there was such a right, for in s.1(h) he referred to "any right" and not to "the right". The impression I get is that parliament was not sure whether a right did exist, was not prepared to decide the possibly explosive question whether it was desirable that such a right should exist and therefore sat on the fence, leaving it to the courts to decide whether a right existed or not. The survey of the cases discloses not merely wide differences of opinion but also a measure of confusion. In some of the cases phrases were used which leave one in doubt whether any distinction between making a statement of facts and making a speech (or a statement by way of comment upon the sworn evidence) was always thought to exist. Again, some of the cases turn not upon the question whether an unsworn statement of faces was permissible at all but upon the other question whether an unsworn statement was permissible at a particular stage in the proceedings.

57. This much is clear. An accused was not allowed to make a statement commenting upon the evidence if he was represented by counsel. There appears to have been a gradual movement towards allowing a statement of facts to be made, on the ground stated by Baron Alderson in Reg. v. Dyer⁽¹⁾, that "otherwise the most monstrous injustice might result to prisoners". Mr. Justice Byles in Reg. v. Taylor⁽²⁾ refused to receive that case as authority, but the reason for his refusal is not reported. The resolution of the judges in 1881, which was cited by Chief Justice Mathers in R. v. Krafchenko⁽³⁾, suggests that at that date anyway there was no settled right for an accused to make an unsworn statement of facts: if such a right had existed even where the prisoner was represented by counsel there would have been no great temptation for counsel to state, as alleged existing facts, matters which he had been told in his instructions on the authority of the prisoner, but which he did not propose to prove in evidence, because the prisoner could have stated them himself. The observations of Mr. Justice Cave in the following year in Reg. v. Shimmin⁽⁴⁾, however, were to the effect that the judges were agreed that there was a right to make an unsworn statement of facts and, remarkably enough, that it should be made after his counsel's speech. As I read the report this refers to his counsel's final speech and that seems to have been the understanding of Lord Chief Justice Coleridge: see Reg. v. Millhouse⁽⁵⁾. To our ears it is strange that it should be said to be proper to introduce new matter before the jury at the conclusion of the closing speech of counsel for the defence but it must be remembered that prior to 1898 the accused could not himself give evidence and it may have been thought that there was less danger of an unsworn statement's being regarded as being on the same plane as sworn evidence if it was introduced at this stage. Mr. Justice Stephen in Reg. v. Doherty⁽⁶⁾ stated the practice upon a trial for treason formerly to have been "to ask a prisoner, after his counsel had addressed the jury on his behalf, whether he wished to say anything himself" (the italics are mine). He regarded the continuence of the right of a prisoner charged with treason to make an unsworn statement even when he became entitled to be, and was in fact, represented by counsel as indicating that the conferring of a right to counsel in cases of felony likewise does not abrogate the prisoner's right to make an unsworn statement. At 15 Cox C.C. 124 it is said that in another case at the same assize as that in which Reg. v. Shimmin⁽⁴⁾ was tried Mr. Justice Cave said

"it was important that the Profession generally should be made acquainted with the rule of practice intended to be followed in future. A prisoner, though defended by counsel, may, if he chooses, himself make his statement to the jury. He ought to be heard in his defence, and have the opportunity of making his explanation of the circumstances proved against him. True his statement was not made on oath, and that he was not liable to be cross-examined by the prosecuting counsel, and what he said was therefore still not entitled to the same weight as sworn testimony. Still it was entitled to such consideration as the jury might think it deserved, and if the prisoner chose to make such a statement he was entitled to do so: ......"

It is significant that the judge used the word "entitled", which normally connotes the existence of a right. In Reg. v. Millhouse⁽⁵⁾ Lord Chief Justice Coleridge alluded to his dissent from "the resolution of the majority of the judges" (by which I understand him to have meant the resolution which led to Mr. Justice Cave's observations in Reg. v. shimmin⁽⁴⁾ although a footnote at 15 Cox C.C. 124 says that the Chief Justice had approved of a prisoner's making a statement after his counsel's address) and he declined to apply the resolution to a case where witnesses were called by the defence, because to allow a prisoner to make a statement after witnesses had been called on his behalf would enable him to supply facts without the sanction of an oath and without his statement's being tested by cross-examination. I confess I would have thought that that objection would have applied equally to a case where no witnesses were called for the defence. The last word prior to the Evidence Act 1898 appears to have been delivered by Mr. Justice Stephen in Reg. v. Doherty⁽⁶⁾, when he said the prisoner was "at lit to make a statement, subject to two conditions which are relevant only as showing the nature of the right and not its existence, (1) that the statement be made before the prisoner's counsel addressed the court, and (2) that counsel for the Crown should have a right to reply. In that case no witnesses were called for the defence.

58. The first reported case which throws light on the matter after the passing of the 1898 Act was R. v. Pope⁽⁷⁾. Mr. Justice Phillimore was there persuaded that the privilege of making an unsworn statement had crystallized into a "right", which was saved by para. (h), and he seems to have considered it unnecessary to enquire whether the time for the exercise of that right had been before or after the speech of the accused's counsel. The right which he recognized must of necessity have been the basis of the undisputed practice in England at the present day to allow an accused to make an unsworn statement of facts even if he is represented by counsel. For my part I would not doubt that if para. (h) had not been inserted in the English Act unsworn statements would probably have been disallowed after the passing of the 1898 Act. In Hong Kong also it is apparent that the judges did recoganize the existence of an accused's right to make an unsworn statement after the passing of the Criminal Evidence Ordinance 1906, even when he was defended by counsel: see R. v. Kwok Leung⁽⁸⁾.

59. The conclusion I have reached is that there was in England in 1898, and has continued since that date, such a right as that now contended for by the appellant and that a like right formerly existed in favour of accused persons in Hong Kong. It remains to decide whether on the true construction of the local legislation that right still subsists. Interesting as it has been to see the approach of the Canadian courts I do not think their decisions are of any assistance to us, because they do not appear to have been bedevilled by any such provision as s.10(3) of the Criminal Procedure Ordinance, 1899, which was the precursor of s.9(3) of the present Criminal Procedure Ordinance. That subsection reads:

"Subject to the provisions of this ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters (including trials for treason or misprision of treason) shall be, as nearly as possible, the same as the practice and procedure from time and for the time being in force for similar cases in England."

There can be no doubt but that the existence or otherwise of a right to make an unsworn statement is a matter of practice and procedure. The question therefore comes down to this, is s.54 of the Ordinance a provision which makes the practice in England (whereby the accused his a right to make an unsworn statement) inapplicable in Hong Kong? It does not say that the right has been abrogated but counsel for the Crown has submitted that by necessary implication the Legislature intended to abrogate that right; that it has done so by copying s.1 of the English Act save that it has omitted (and one must assume that it has deliberately and intentionally omitted) para. (h). This is an attractive argument but it seems to me far from clear that such an intention can fairly be inferred from the language used. There is, it seems to me, considerable danger in applying to the situation which arises here the canon of construction that the omission in a later statute of words which occurred in an earlier one must be presumed to have been intended to produce a different result unless the omitted words of the earlier enactment were surplusage. Had para. (h) been found in an earlier Hong Kong Ordinance or even in an Imperial enactment which was applicable to Hong Kong and had it been omitted in the Criminal Evidence Ordinance 1906 the intention would have been manifest. But the Act of 1898 was not a statute passed by the Hong Kong Legislature and it is possible to explain the omission of para. (h) by reference to the precursor of s.9(3) unless it can be said that the Ordinance as enacted in Hong Kong was a "code", in the sense that it was clearly intended to include an exhaustive statement of all the rights of an accused person in relation to the statement of matters of fact. In my opinion such an intention is by no means clear. The whole purpose of a code is to make a systematic collection in one place of all the rules appertaining to a particular subject. Having regard to the adoption of the greater part of the English section word for word it cannot be said that the Legislature was not cognisant of the terms of para. (h) and of the matter with which it was concerned. Obviously it could have included para. (h) or it could have said expressly that any right to make an unsworn statement was abolished. I share with Mr. Justice Mills-Owens (and indeed I have expressed it more than once before) the view that it is the duty of the Legislature to legislate in unequivocal language, especially where an established right is to be taken away or altered. It is not without significance that the courts have continued to recognize this right of accused persons for ever 60 years since the passing of the ordinance of 1906 without protest from the Crown. This is the more remarkable when one notes that the Attorney General of the day publicly declared the intention of Her Majesty's Government to be to abrogate the right by that Ordinance. I am driven to the conclusion that it was early recognized that the declared intention had not been sufficiently expressed in the statute.

60. For my part I would have been happy to come to a different conclusion for I think there is much good sense in the view that once accused persons had been granted the right to give evidence on their own behalf the foundation upon which the right to make an unsworn statement had been built was gone. Nevertheless I think it must be left to the Legislature to effect this desirable reform. I think the learned magistrate was wrong in denying to the appellant the right to make an unsworn statement and would allow the appeal.

(1) (1844) 1 Cox C.C. 113

(2) (1859) 1 F. & F. 535

(3) (1914) 17 D.C.R.244, 248.

(4) (1882) 15 Cox C.C. 122

(5) (1885) 15 Cox C.C. 622

(6) (1887) 16 Cox C.C. 306, 310

(7) (1902) 18 T.L.R. 717.

(8) (1909) 4 H.K.L.R. 161, 163.