Ma Kwai Pak v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 689 of 1970

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Coram: Rigby, C.J., Huggins, and Pickering, JJ.

Date of Judgment: 28 September 1971

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JUDGMENT

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Pickering; J.:

This appeal has been referred to the Full Court by a single judge under the provisions of s.118(1)(d) of the Magistrates Ordinance.

2. On the afternoon of the 10th September, 1970 the appellant, Madam CHUNG Shuk-kuen, was the only passenger in a private car driven by a Mr. MA Kwai-pak. Upon the termination of their mutual journey, police officers witnessed an event which led to Mr. Ma being charged with the offences of driving a private car for hire or reward and driving a private car without third party insurance.

3. Upon Mr. Ma's trial at Western Magistracy on these charges, the appellant was the first witness for the prosecution and an application that she be treated as a hostile witness was acceded to by the learned magistrate who, upon the conclusion of her evidence, intimated to her that it was his intention to call upon her to show cause under s.100(b) of the Magistrates Ordinance as to why she should not be dealt with for having wilfully given false testimony. At this stage the learned magistrate released the witness upon her entering into a recognizance in the sum of $200 to appear at 2.30 p.m. on the next day. In the event, the appellant was not so called upon under s.100(b) of the Magistrates Ordinance until the 26th of October when she applied for an adjournment in order to engage counsel. The adjournment was granted and when the matter was eventually dealt with on the 11th November, 1970, the appellant was represented by Miss Fung of counsel. The learned magistrate found that the appellant had in fact willully given false testimony and fined her $350. It is against that finding and sentence that the appellant now appeals.

4. Upon the hearing of the appeal we found it necessary to complain that the additional grounds of appeal had been filed with the court only upon the previous evening and had come into the hands of the members of the court only upon the morning of the appeal. Whilst counsel for the appellant assumed sole responsibility for this state of affairs and apologised to the court for having set aside the papers in July without initiating any action to have the Notice of additional grounds of appeal filed, we think it right to allude to this matter in order that counsel and solicitors in general may be aware - if they are not already aware - that grounds of appeal which reach the members of the court at the very last moment are inevitably of less value to the court, to counsel and to his clients, both professional and lay, than are grounds which have been filed timeously and to which the members of the court have had an opportunity of applying their minds before the hearing.

5. The evidence of the appellant in the court below was to the effect that upon leaving Sandy Bay Hospital in the rain on the afternoon of the 10th September, 1970, she was unable to find a bus or a taxi and that as she approached Victoria Road, Mr. Ma, with whom she had some slight acquaintance, called to her from a private car. In reply to his query as to why she was standing there, she told him that she was waiting for a vehicle in order to get back to Wah Fu Estate, whereupon he answered that he was going to Cadogan Street in Western District and that, if she wished, she could get into his car and he would take her to Western District since it was along his route. Since it was raining she got into Mr. Ma's car with the intention, after having been driven in the opposite direction to Wah Fu Estate, of transferring in Western District to another vehicle bound for Wah Fu Estate.

6. The appellant's evidence continued that on alighting from the car she felt somewhat embarrassed and gave a ten dollar note to Mr. Ma who refused to accept it, whereupon she returned the note to her purse and, still feeling embarrassed, threw a dollar coin through the window of the car on to the rear seat, saying, "Mr. Ma, I stand you a cup of coffee." According to the appellant, Mr. Ma picked up the coin and saying, "Mrs. Lipp, take back this coin", threw it back to her, whereupon it fell to the ground and she walked away without recovering it. We would add in parenthesis that Mrs. Lipp is the name by which the appellant was apparently known to Mr. Ma, that being the surname of her husband.

7. At this stage of the proceedings the prosecuting Inspector asked that the witness be declared hostile and the court adjourned. Upon the resumed hearing, it was put to the witness that at about 4 p.m. on the 10th September, 1970, at the junction of Cadogan and Belcher Streets, after she had alighted from the car in question, she was stopped by a police inspector who asked her whether she had given any money to the driver of the car, Mr. Ma. The appellant's reply to this question, according to her, was that she had given Mr. Ma a dollar which he would not accept. This item of evidence was reiterated time and again by the witness. It differed, however, from the interpelated evidence of Inspector LEUNG Tat-yan, the Inspector in question, who said that the appellant's answer to his question about the passing of money was "I have given him one dollar coin." Upon being asked whether anything else had been said, the Inspector replied "That was the exact answer as far as I can remember." The witness was thereupon ruled "adverse".

8. After further evidence on the part of the appellant, during the course of which she repeatedly said that Mr. Ma had refused to accept the dollar coin, her evidence concluded and it was at this stage that the learned magistrate intimated his intention of calling upon her to show cause under s.100(b) of the Magistrates Ordinance as to why she should not be dealt with for having wilfully given false testimony.

9. The evidence of Inspector Leung was the only evidence, apart from that of the appellant, as to what passed between them in the conversation regarding the transfer of money from the appellant to Mr. Ma. Mr. Jackson-Lipkin, for the appellant, argued that the learned magistrate ought not to have found her guilty of wilfully having given false testimony solely by reason of the fact that her testimony was contrary to that of a single police officer; the more so since the appellant's testimony was not a flat denial of what the police officer alleged that she had said to him in the street but merely a qualification thereof, in that whilst she agreed that she had told him that she had given a one dollar coin to Mr. Ma, she had also added that she had told the inspector that the latter had refused to accept it.

10. Counsel further urged upon us that the power given by s.100 of the Magistrates Ordinance was one which should be exercised rarely and with circumspection and ought not to have been exercised in respect of a straight dispute between the appellant and a police officer as to the nature and content of an oral statement allegedly made to the police officer; and further, that the learned magistrate ought not to have found the appellant wilfully to have given false testimony without corroborative evidence.

11. Our initial reaction to the evidence of the Inspector in regard to the appellant's reply to him in the street is that that evidence is in itself qualified evidence, for, having testified that the appellant had told him that she gave Mr. Ma a dollar coin, the Inspector, upon being asked whether anything else was said, replied "That was the exact answer 'as far as I can remember'." Such a reply was by no means unreasonable for few honest witnesses would testify categorically as to the precise words of a conversation one month after that conversation took place. We can, however, only regard such qualified evidence as a weak foundation for bringing into play the powers conferred by s.100(b) of the Magistrates Ordinance and an even weaker base for a finding beyond reasonable doubt that the appellant's evidence in court to the effect that she had added that Mr. Ma had refused to take the dollar amounted to the wilful giving of false testimony.

12. Section 100 of the Magistrates Ordinance is an unusual provision in that under it the magistrate is both the accuser and the judge and we are indebted to Mr. Duckett, who appeared for the Cwown, for his research into the history of this section which first saw the light of day in s.10 of Ordinance No.6 of 1862. That section appears to have been original since no source is traceable either in the United Kingdom or in any of the provisions of the Indian Penal Code. An amendment to the section, unimportant for our purposes, was made by Ordinance No. 16 of 1875 and the section reappeared as s.91 of the Magistrates Ordinance of 1890 (No. 10 of 1890) in a form closer than thitherto to today's s.100 of the Magistrates Ordinance. Section 94(2) of the Magistrates Ordinance of 1932 (No. 41 of 1932) took the form of the present s.100, including the necessity of offering a person against whom the weight of the section was to be employed, the opportunity of an adjournment. In 1949 the maximum penalty under the section, which had previously been a fine of $50, was increased to one of $500.

13. It is apparent, therefore, that the power conferred by the existing s.100 of the Magistrates Ordinance has existed in the Colony for more than a century. The fact that this appears to be the first case in which its application has fallen for consideration by the Full Court is possibly mute evidence of the caution and circumspection with which, over that lengthy period of time, the section has been utilized and since we are going to speak of circumspection, it behoves us ourselves to employ circumspection in seeking to lay down, upon the flimsy basis of the only case involving s.100 known to have come before the Full Court, lines of guidance for magistrates in regard to the utilization of that section. In saying that the power is one which ought to be used with circumspection we are, we believe, preaching to the converted. The mere fact of the absence of any authority in this court regarding the interpretation or employment of the section suggests that the power is not one to which frequent resort has been made. In endorsing that cautious approach to the power conferred by the section we would not, however, wish to be construed as decrying its use in appropriate cases. Instances arise where a witness confesses in open court, either voluntarily or because he is compelled to the admission by cross-examination, that his earlier testimony has been wilfully false and such a circumstance would be an obvious case for the utilization of the section unless the implications of the witness's conduct were so grave as to cause the magistrate to consider that the proper procedure was to refer the papers to the Attorney General with a view to a prosecution under the Perjury Ordinance. Moreover, the circumstance in which a witness so incriminates himself as to walk into the open mouth of the section is not the only circumstance in which magistrates may find it appropriate to avail themselves of the section. Where very grave suspicion exists magistrates will always be entitled to invite a witness to show cause in accordance with the terms of the section, always bearing in mind that the maximum penalty available under the section is such that, in any particular case, a charge under the Perjury Ordinance may be the only course capable of leading, in the event of conviction, to an appropriate penalty.

14. It will be apparent, however, and we think that it is and has been apparent to magistrates, that the section is not one to be invoked lightly. The aspect to which we have referred, namely, that the section places the magistrate in the position both of accuser and judge, is one which may well be thought to render the employment of the section invidious except in the fairly obvious case.

15. In the present instance the learned magistrate was faced with an assertion by a Police Inspector which was qualified by the phrase "as far as I can remember". In opposition to this he had the evidence of the appellant, which was not a blank denial that money had passed between her and Mr. Ma, but a qualification of the Inspector's evidence in that whereas the Inspector had said that the appellant had told him simply that she had given a dollar coin to Mr. Ma, her evidence was that she told the Inspector that she had given Mr. Ma a dollar coin but that he had refused to accept it. This, as we see it, was the extent of the conflict in the evidence; for the conversation between the Inspector and the appellant was not overheard by anybody else, and the P.C. who was with the Inspector at the time was unable to assist the Court in this respect.

16. A conflict of evidence between a witness (more usually a defence witness) and a police officer as to what was said on a particular occasion is a daily or hourly occurence in the courts of the Colony and there is, we apprehend, some danger that if, where such a conflict arises, s.100 is lightly brought into play, witnesses will come to court not only without self-confidence but in some trepidation. That is not a situation which should be allowed to obtain, and it were better that the section be repealed rather than that witnesses should so feel inhibited. We do not suggest that the situation to which we have referred does, in fact, obtain but we merely point out a possible danger of a too ready application of the section under consideration.

17. We would not wish to be thought as recommending the repeal of the section. It exists; and within its limits and the limits which we consider magistrates should, and broadly do, impose upon their resort to the section, it fulfils a useful function.

18. Inasmuch as one ground of appeal was that the learned magistrate ought not to have found the appellant wilfully to have given false testimony without corroborative evidence, it may be useful to explore the issue of whether or not corroboration under the section is required. At Common Law there could be no conviction for perjury without corroboration and, when perjury was made a statutory offence in England under the Perjury Act 1911, s.13 of that Act also required corroboration, as does s.16 of our own Perjury Ordinance, Cap. 212 which Ordinance provides that the offence of perjury can be committed in connection with matters other than judicial proceedings (see s.6 to 10). Section 100 of the Magistrates Ordinance, however, contains no express reference to perjury and s.16 of the Perjury Ordinance cannot be imported into the former section so as to render corroboration necessary as a matter of law. That that is the deliberate intention of the legislature seems to be implicit from s.19(2) of the Perjury Ordinance which provides:

"Where the making of a false statement is made punishable by any other enactment, whether passed before or after the commencement of this Ordinance, proceedings may be taken either under such other enactment or under this Ordinance."

19. If, however, corroboration is not required as a matter of law under s.100 of the Magistrates Ordinance, is it competent for this Court to lay down that it is required as a matter of practice?

20. Corroboration is sometimes the creature of statute - as under the Perjury Act to which we have referred, in charges concerning the procuration of females for sexual purposes (Sexual Offences Act 1956 ss. 2, 3, 4, 22 and 23) and driving a motor vehicle in excess of a speed limit (Road Traffic Act 1960 s.4). In other instances, however, corroboration is required merely as a matter of practice, and although we use the term 'merely' that is a relative term for in the case of accomplices and sexual offences at least, if there is no warning of the danger of acting on uncorroborated evidence, any conviction will be set aside on appeal unless the proviso can be applied. We have considered whether or not this court should lay down as a rule of practice that corroboration should be required under s.100 of the Magistrates Ordinance before the conclusion is reached that a witness has wilfully given false testimony, but we consider that, especially in the light of the fact that this is the first occasion upon which the Full Court has had occasion to consider that section, we should be slow to lay down any such direction - a direction which would, as Mr. Duckett submitted, amount virtually to re-writing s.100.

21. We would not, however, wish to leave the matter there. The very facts of this case themselves highlight at least the desirability of a measure of corroboration where the conflict of evidence is a verbal conflict between one witness and another, and we consider that in such cases corroboration, though not essential, is highly desirable so that a magistrate employing the section should remind himself of this whilst not being debarred, provided he is convinced of the truth of the one side and of the falsity of the other, from making a finding as to that falsity in the absence of corroboration.

22. In the circumstances of the present case we think that the learned magistrate acted prematurely in warning the first witness for the prosecution, at the conclusion of her evidence, that he proposed to call upon her to show cause under s.100, and we consider also that the conclusion to which he came, on the basis of a qualified allegation by the inspector which was in turn not flatly contradicted but merely qualified by the evidence of the appellant, was unsafe. We leave for further consideration the question how far the learned magistrate was entitled to have relied upon evidence given in the case between the release of the appellant upon a bond and the time at which she was actually called upon to show cause. The appeal is allowed, the conviction quashed and the fine of $350 set aside.

Representation:

Jackson-Lipkin (Tso & Co.) for appellant

Duckett, S.C.C. for Crown.