Li Tak Cheung v. The Queen

CACC000418/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 418 OF 1971

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Coram: Pickering, J.

Date of Judgment: 10th September, 1971.

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JUDGMENT

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1. The appellant appeared before a Magistrate together with another man. Between the two accused three charges of robbery were involved; the first charge being against the other man only, the second against both of them and the third against the appellant only.

2. The facts were that the two were ambushed by the police and cautioned in respect of the first charge, which offence the appellant denied having committed whereas the other man admitted the allegation. Whilst in custody both admitted the second offence charged and took detectives to the location where the robbery had been committed and later to a pawn shop where a watch, part of the proceeds of the robbery, was recovered. When the appellant was searched, another wrist watch was found in his trouser pocket, and he admitted that he had robbed an unknown man of this watch - which admission led to the third charge, against the appellant only.

3. Before the Magistrate, the other man (to whom, for reasons which will become apparent, I will refer as "the witness") pleaded guilty to the first and second charges, and was thereupon convicted and sentenced. Immediately afterwards and whilst the witness was still in court, the appellant pleaded not guilty to the second and third charges and was remanded for five days for trial, whereupon the witness immediately applied to give evidence for the appellant upon his trial. Accordingly, the Magistrate ordered that a body order returnable on the trial date issue in respect of the witness.

4. Upon the hearing of the charges against the appellant, after the prosecution case had concluded the appellant gave evidence and, upon the conclusion of his evidence, called the witness who came to the witness-box and affirmed. That concluded his attempt to testify because immediately after having affirmed, he was warned by the Magistrate of the consequences of perjury and then asked if he wished to give evidence, which he then declined to do despite having previously volunteered to testify for the appellant. The witness was allowed to leave the witness-box without the appellant having the opportunity of addressing a single question to him. The learned Magistrate then immediately convicted the appellant upon the second and third charges, that is both the charges alleged against him and sentenced him to 12 months imprisonment upon each charge, such sentences to be concurrent. He now appeals against the convictions.

5. With great respect to the learned Magistrate his action in virtually frightening off a defence witness and withdrawing from the appellant all opportunity of examining that witness in the appellant's defence, was both untypical and unfortunate. Its effect was to deny the appellant access to a part of his own defence and to leave the Court itself in ignorance of that part of the defence and therefore impotent to form any judgment upon it. Whether the evidence which, but for magisterial interference, the appellant would have adduced from the witness would have assisted the appellant's case or not, is immaterial. He was simply not allowed to adduce it and to that extent the trial was not a fair trial. Moreover the impression cannot be suppressed that the evidence so stifled might have had a significant bearing on the appellant's defence for the witness himself had volunteered to the Court to give evidence for the appellant. Whilst the witness's enthusiasm for giving evidence on behalf of the appellant might have been the product of collusion between the two (and the learned Magistrate appeared to think that it must have been) it is at least equally possible that it stemmed from a genuine desire to put before the Court matters known to the witness which would assist the appellant either to disprove one or both of the charges against him or at any rate to present his conduct in a more favourable light.

6. What evidence the witness would have given had he not been deterred from his original intention of testifying, nobody knows. On the facts of the two charges as presented by the prosecution it appears probable that such testimony would have related to the joint charge and unlikely that it would have touched upon the offence levelled against the appellant alone. But even that cannot be stated with any certainty. Unexpected evidence is a commonplace and not all of it is the product of perjury.

7. In the result the verdicts cannot stand and the convictions are set aside.

8. In the case of LAM Woon-nang and The Queen (Criminal Appeal 138/1971) the Full Court said:

"          Without attempting to delimit the type of case in which a new trial ought to be granted, whether as opposed to applying the proviso or otherwise, we take the view that, notwithstanding that the conviction is quashed otherwise than by reason of any fault on the part of the prosecution, a new trial ought not to be granted in any case in which the evidence is so weak as virtually to render it a matter of chance whether the accused will be convicted or acquitted on the new trial. In such a case it would be unjust to subject the accused to the considerable ordeal of a second trial."

9. In the present case I am unable to say that the evidence is so weak as to render it a matter of chance whether the accused will be convicted or acquitted on the new trial. If however he is to be convicted on either or both of these charges, he is entitled first to be allowed to put the whole of his defence before the Court.

10. I order a new trial in respect of both charges at which no doubt, if the appellant still wishes to call the witness, arrangements will be made for the attendance of the latter.

11. Since the learned Magisgrate in the original trial has clearly formed an adverse view as to the likely veracity of the witness, I am sure that he would be the first to agree that the new trial should be before another magistrate.

12. The appellant will be remanded in gaol custody pending his retrial which should take place with the greatest possible expedition.

Representation:

D. Cheng (on instruction of Gunston & Chow) for appellant

Winter, C.C. for Crown.