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CACC000498/1978
| IN THE SUPREME COURT |
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Criminal Appeal |
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1978 No. 498 |
| BETWEEN |
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WONG WING-CHUN |
Appellant |
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THE QUEEN |
Respondent |
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Coram: Yang, J.
Date of Judgment: 30th June, 1978.
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JUDGMENT
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1. This is the appellant's appeal against his conviction for bookmaking.
2. The facts are simple. At about 5.45 p.m. on the 18th March 1978 the police raided the Chung Kee Store at 43A, Hoi Pa Village, Tsuen Wan. The appellant admitted that he was the proprietor of the store. Between the time that the police arrived and 7.25 p.m. some seven men came into the store. Five of these men were arrested by the police and each was found to have betting slips and money on his person. Three of those arrested made statements under caution and in the presence and hearing of the appellant, to the effect that they had come to place bets with the appellant. Though the learned trial magistrate made no finding of this fact, it is significant to note that, according to the evidence as shown in the record of proceedings, at the time these cautioned statements were made the appellant himself appeared to have been under caution also. Apart from those three statements, there was another statement, said to have been made by one of the seven men who entered the store ( - it is not clear whether the maker of that statement was one of the five arrested). This man, on his entry into the store, said to the appellant, "Uncle Chung, place this for me". Then he was arrested when he was about to take something out of his pocket, in which were found some cash and pieces of paper.
3. Mr. Bleach on behalf of the appellant submitted that these four statements should have been excluded by the trial magistrate as being hearsay evidence.
4. It is clear that the first three statements were wrongly admitted. The only purpose for which these statements were tendered in evidence was to prove the truth of what was said. They could not be treated as forming part of the res gestae because they did not accompany, or were not made contemporaneously with, the fact in issue or a fact relevant to the fact in issue, namely, the fact of bookmaking. It would appear from the evidence that the appellant, on hearing those statements, did not make any attempt to contradict them. However as he had already been cautioned and told that he had the right to remain silent, it is difficult to see how, in the circumstances, his silence could conceivably be construed as acquiescence.
5. The fourth statement, i.e., "Uncle Chung, place this for me," presents a little difficulty. There is one Hong Kong authority in point, Ho Sheung-yin and Kwong Lap-tsang vs The Queen(1). In that case a police sergeant who raided the appellants' flat received a telephone call in the flat. The caller attempted to place a bet on a greyhound race. It was held that the evidence of what the caller said was properly given, not with the object of establishing the truth of what the sergeant heard but with that of establishing what was said to him.
6. Three Commonwealth authorities have been cited. The headnote of McGregor v. Stokes(2) reads:-
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"Upon a defendant being charged that being the occupier of a certain house he did use the same for the purpose of betting contrary to sec. 98 of the Police Offences Act 1928, the prosecution tendered in evidence statements made over the telephone to police on the said premises wherein the callers sought either to place bets or gave betting information. The defendant could not hear what the callers had to say. The evidence was rejected. |
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Held, that the hearsay rule had no application to the conversations tendered in evidence, and that they were admissible in evidence in proof of the offence charged." |
7. Herring, C.J. said (at pp. 350-351):-
"What the caller had to say in each case was an utterance that accompanied his act of calling, and also explained his purpose in calling. Without the words his act taken as a whole was incomplete. The fact that he has called on the telephone by itself tells you no more than that he has made the call and the making of the call unexplained is an equivocal act. Till you know what he has had to say, you cannot tell whether he has rung up to ask the occupant about a dog or to invite him to dinner or what his purpose was. And so it is in the case of so many things we do that our acts are partly conduct and partly utterance. A man walks into a shop for example, but the significance of his visit cannot be ascertained until he states his business."
8. The next case is Murtagle v. Paltos (3) where the police raided a dwelling house suspected of being unlawfully used for the purpose of betting. Evidence was admitted that some 26 inward calls were taken by the police in the house, a number of which constituted inquiries as to the price of horses running in races that day and others the placing of bets.
9. In Police v. Machirus (4), it was held that notwithstanding the general rule excluding hearsay evidence, the contents of a telephone call received by the police which constituted the placing of two bets were admissible in evidence as proof of the nature of the business being carried on at the premises. It matters not whether there be one or more telephone calls. The number of calls affects the weight of the evidence but not its relevance.
10. Woodhouse J. said (at p. 292):-
"The first step in deciding whether evidence is admissible must always be to consider whether it is relevant as tending to prove a fact in issue. In this case the issue is whether the appellant was in business as a bookmaker, holding himself out as ready and willing to accept bets on horses. It is obvious, I think, that a written record of an attempt to bet in the form of a letter or a telegram or an apparent physical attempt by somebody to pass across money in order to bet on a horse would be highly relevant to that issue. A description of the conduct of the person concerned or the production of the document would be admitted in evidence without further ado. But here the alleged attempt to bet was evidenced by what may be described as verbal conduct. It took the form of a telephone conversation and the question has been raised as to whether the description of what was said in that telephone conversation by the caller is to be excluded (despite its relevance) on the basis of the hearsay rule. It was submitted by Mr. Hearn that the words used by the caller should be regarded as hearsay because, as I understand it, the evidence was tendered to demonstrate that the caller had a real intention to place a bet. The true purpose of such a call no doubt could be debated, but if it were it could only be. I think, in terms of the weight to be attributed to the evidence. In my opinion, the words said to have been used by the caller in this particular instance were not tendered to prove the truth of any assertion but simply to indicate that there had been an apparent attempt to bet. For that general reason I do not think the hearsay rule has any application to the case."
11. The leading English case is Ratten v. The Queen (5).
12. The res gestae principle was restated by the Privy Council in Ratten v. The Queen. Although the opinion of the Board appears to have been obiter on this point, this appeal, from Australia, was heard by five Lords of Appeal. Their opinion, which reviews Scottish, Commonwealth and American as well as English decisions, may therefore be regarded as authoritative even for English courts. Lord Wilberforce said (at pp. 388-390):-
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"The expression 'res gestae', like many Latin phrases, is often used to cover situations insufficiently analysed in clear English terms. In the context of the law of evidence it may be used in at least three different ways: |
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1. When a situation of fact (e.g. a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife, without knowing in a broader sense, what was happening. Thus in O'Leary v. The King (1946) 73 C.L.R. 566 evidence was admitted of assaults, prior to a killing, committed by the accused during what was said to be a continuous orgy. As Dixon J. said at p. 577: |
'Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.'
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2. The evidence may be concerned with spoken words as such (apart from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, i.e., are the relevant facts or part of them. |
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3. A hearsay statement is made either by the victim of an attack or by a bystander - indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae. A classical instance of this is the much debated case of Reg. v. Bedingfield (1879) 14 Cox C.C. 341, and there are other instances of its application in reported cases. These tend to apply different standards, and some of them carry less than conviction. The reason, why this is so, is that concentration tends to be focused upon the opaque or at least imprecise Latin phrase rather than upon the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than evidence by persons who have been victims of assault or accident. The first matter goes to weight. The person testifying to the words used is liable to cross-examination: the accused person (as he could not at the time when earlier reported cases were decided) can give his own account if different. There is no such difference in kind or substance between evidence of what was said and evidence of what was done (for example between evidence of what the victim said as to an attack and evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other. |
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The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression 'res gestae' may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings." |
13. Phipson, after citing the Board's opinion in extenso, observed, in my view correctly (at p. 171):-
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"It seems clear that the Board regarded any statement admitted as part of the res gestae under their third category, and relied on as evidence of the truth of what was asserted as hearsay, and therefore the admission of such evidence for such a purpose to be an exception to the hearsay rule. This is important, for it would seem to follow that such statements would be caught by s. 1(1) of the Civil Evidence Act 1968 and would only be admissible in Civil proceedings if the other conditions for their admissibility in such proceedings were complied with (see para. 639 et seq., post). |
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Although the Board in their third category only refer to evidence 'indicating the identity of the attacker' (with which the instant case was concerned), it is clear from the cases cited by the Board in support of their opinion that they intended to include in this category other evidence relevant to the issues before the court. This third category, because it constitutes an exception to the hearsay rule is in practice the most important application of the res gestae principle. It is submitted that the opinion of the Board has clarified what was formerly an uncertain and perplexing part of the law of evidence." |
14. Indeed Professor Nokes, as early as 1952, in his Introduction to Evidence, already pointed out (at p. 77) that when the statement would not be explanatory unless it were prima facie true, it is some evidence of the truth of the matter stated, otherwise there would be no object in admitting evidence of the wellknown statements that Butcher was at the window (R. v. Fowkes (1856) - unreported, see Nokes at p. 74), or the helm was still a-starboard (The Schwalbe (1859) Swabey, 461, 521).
15. The statement now under consideration - "Uncle Chung, place this for me" - is in my judgment admissible as coming under the second category discussed in Ratten v. The Queen.(5) It was a verbal act. It formed part of the res gestae, and it accompanied and explained the speaker's equivocal acts of calling at the appellant's store and that of trying to take something out of his pocket. The statement was not admitted to prove the truth of it.
16. I now come to the next ground of appeal. Though it has been stated under three separate headings, the ground is essentially the usual one that there was no or no sufficient evidence whereon to found the said conviction. I need not deal with this matter at length, suffice it to say that in my view, stripped of the first three statement made to the police, there was still ample evidence left on which to find the appellant guilty. The evidence that five persons entered the appellant's store within a period of one hour and forty minutes, all with betting slips and cash found on them, coupled with the fourth statement, offered sufficient ground for the trial magistrate to convict.
17. On the authorities cited above, and for the reasons already given, the appeal is dismissed.
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(T.L. Yang) |
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Judge of the High Court |
Representation:
Mr. J. Bleach (Rowdget W. Young) for Appellant.
Mr. D. Marash, Crown Counsel for Respondent.
(1) Criminal Appeal No. 1247 of 1977 - unreported.
(2) (1952) V.L.R. 347.
(3) (1974) V.R. 768.
(4) (1977) 1 N.Z.L.R. 288.
(5) (1972) A.C. 378.
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