Chim Tak-shing v. The Queen

CACC000555/1982

Retrial - cross-examination on statements made at first trial and reduced into writing on court record - proviso to section 14 Evidence Ordinance - discretion of magistrate or judge at second trial to look at record of first trial - use which he may make of it - purpose of proviso.

BETWEEN

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Coram: Hooper, J.

Date: 30 September 1982

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JUDGMENT

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1. This is an appeal by the appellant against a conviction of possession of a dangerous drug for the purpose of unlawful trafficking contrary to section 7(1) of the Dangerous Drugs Ordinance, Cap. 134. The appellant was arrested on the 18th of February 1981 outside No. 43-44, Block 20, Tsui Ping Road Estate Foon Yuen Restaurant, Kowloon. He was subsequently charged that on this date and at this place he had in his possession for the purpose of unlawful trafficking a dangerous drug namely one polythene bag containing 10 packets, each containing a mixture containing salts of esters of morphine.

2. On the 25th of August 1981 he appeared before Mr. R.N. Hawkes, a magistrate, when he was tried and convicted of the offence charged.

3. On the 25th of September the appellant, who was now represented by a different solicitor, made an application before the same magistrate for review of his decision. One of the grounds for making such application was that the appellant had new evidence. In the interest of justice the learned magistrate reviewed his decision and under Section 104 of the Magistrates Ordinance Cap. 227 ordered that the case be heard before another magistrate.

4. On the 17th of February 1982 the appellant appeared before a different magistrate, Mr. I. T, Heath, and his second trial commenced. It continued throughout the 17th, again on the 3rd of March and again on the 9th of March, when the solicitor for the defendant commenced his final submission. This submission continued on the 12th of March 1982 when the magistrate reserved his judgment to the 16th of March.

5. Finally on the 16th of March the learned magistrate gave a judgment in the following terms -

"This case was a rehearing of any trial conducted in August last. The Court has taken the view that the evidence currently before the Court is the evidence that matters. The Court has been reminded of discrepancies on the evidence as between the two trials. On careful examination the discrepancies are not of any great significance. The additional evidence called of the sister of defendant on the whole did more harm than good.

The Court finds the police evidence to be consistent and convincing and accordingly the defendant will be convicted.

Sd. I.T. Heath."

6. It is from this conviction that the appellant now appeals. On the 9th June the learned magistrate further set out his reasons for convicting the appellant in greater detail in paragraphs (1) to (9) of his "Statement of Findings" as follows :

7. The first ground of appeal is that the learned magistrate wrongly had regard to the record of the evidence given in the first trial of the appellant before Mr. R.N. Hawkes who had ordered that the whole case be retried before another magistrate. It was contended that this was a material irregularity and involved the magistrate taking into account matters outside the ambit of the evidence properly admitted before him. Also under the first Ground of Appeal it was contended that one of the bases for the conviction was that the learned magistrate found that the evidence given by the police officers in their evidence in the retrial was "consistent" with what they had said in the first trial. It was contended that the evidence of consistency was wholly irrelevant and inadmissible, and that the fact that their evidence was consistent with previous statements in evidence in an earlier trial was immaterial.

8. Mr. Huggins, who represented the appellant on this appeal, has referred in some detail to the evidence given by the witnesses at the second trial and has drawn attention to the fact that the first prosecution witness Sergeant Chiu was asked a number of questions in relation to what he had said at the first hearing. Mr. Huggins submits that it is clear from those questions that the solicitor representing the appellant wanted to draw attention to the fact that the evidence which the witness was now giving, was inconsistent to the evidence which he had given at the earlier trial.

9. The first of these questions appears at page 18 of the appeal papers as follows :

10. If, says Mr. Huggins, the witness had disagreed, then the cross-examiner could have pursued the matter if he wished by introducing and showing to the witness the previous statement and giving the witness the opportunity of dealing with it. In this case, however, that was not necessary because the witness had said that he agreed. What particularly disturbs Mr. Huggins is that according to the record the magistrate then tools a look at pages 14 and 25 of the original magistrate's transcript, despite the fact that the solicitor who was defending the appellant had chosen not to take the matter any further.

11. Mr. Huggins drew the court's attention to a number of questions put to the witness by the solicitor for the appellant. In some cases the witness admitted that he made a statement of the sort which was being put to him at an earlier trial, in some cases he did not answer the question. However, at no stage during the second trial did the appellant's solicitor pursue the matter any further by seeking to have the previous inconsistent statement formally proved. The effect of this, argues Mr. Huggins, is that the magistrate could only look at the answers to the questions which were put to the witness during cross-examination. It was permissible, therefore, to look at prior inconsistent statements which the witness admitted in cross-examination having made on an earlier occasion but not at earlier statements which the witness had not admitted making on an earlier occasion.

12. On the subject of consistency, Mr. Huggins argues that when the magistrate said that the evidence of the police officers was consistent, he did not only mean that they were consistent with one another at the trial before him; he was referring to the evidence before him as compared to the evidence at the previous trial. Mr. Huggins argues that it is clear from the judgment that consistency was a matter which "accordingly" led him to convict the appellant. This, says Mr. Huggins, the magistrate should not have done, since this was not one of those exceptional circumstances where for example an allegation had been made of recent fabrication, when evidence of consistency would have been relevant to rebut such an allegation such as in the case of Oyesiku ⁽¹⁾.

13. Mr. Jenkyn-Jones for the Crown (respondent) does not dispute that the magistrate did have regard to the record of the previous trial, but argues that he was perfectly entitled to do so under the provisions of section 14 of the Evidence Ordinance, Cap. 8. This reads:

"A witness in any proceedings may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the proceedings, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:

Provided always that it shall be competent for the court, at any time during the trial or hearing of the proceedings, to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purposes of the trial or hearing as it may think fit."

14. Mr. Jenkyn-Jones argues that for the protection of the witnesses in the present case, it was perfectly proper for the judge to make such use of the record of the proceedings in the earlier trial as he thought fits. It was a method to test the witness in the circumstances. He argues that the judge was required to give a preliminary ruling as to whether it was or was not consistent and whether any value should be or should not be attached to it. He limits the use which the magistrate can make of the previous statement to determining the question of whether the witness is credible or not. He further argues that the magistrate is not limited to that part of the witness' previous evidence which was referred to in the question of the cross-examiner, but maintains that the magistrate could look at the entire record of the witness in the previous trial. He claims that the magistrate could do this because it had been put to the police officer in effect that his evidence differed from his evidence at the previous trial and "had been organized in collusion”.

15. Mr. Jenkyn-Jones argues that there was no indication that the magistrate had looked at the entire record and in the circumstances he submitted that he must have looked at it when necessary to determine the limited issue of credibility and consistency. With regard to the matter of consistency, he argues that on the limited issue of credibility, the consistency of the witness was relevant.

16. Attractive though Mr. Huggin's arguments on this first Ground of Appeal appear initially, I do not feel that they would justify an interference with the magistrate's finding of guilt. It appears to me that the solicitor, defending the appellant at the second trial went beyond merely asking the witness if he had or had not said something at the earlier trial; he quite clearly intended to contradict both witnesses by the record at the first trial. This is clear from the phraseology of his questions.

17. In relation to PW1

"In August you said ....... Do you remember saying that?"

"You said in August ........."

"Did you forget to tell Court in August last....."

"Did you forget to tell Court in August ......"

"I put it to you in passage quoted ........

"In August you said ........."

"In August you told Court that ....... "

"Put it to you better evidence in August than today"

"Evidence in August .... (Quotes from it) "

"Why not mention them in August?'

"I put it to you evidence differs from August and has been organised in collusion."

In relation to PW2

"I put it to you that in August you said ......"

18. The form of these questions can mean only one thing and that is that the solicitor for the appellant not only intended to contradict both witnesses by the record of what they had said at the earlier trial, but he was actually challenging their evidence with reference to parts of the record which he had not formally proved.

19. I agree with Mr. Jenkyn-Jones that this was a situation in which the magistrate was entitled to call for the record under Section 14 of the Evidence Ordinance and to examine it in relation to the evidence of the particular witness concerned to see if there were indeed discrepancies on anything but minor points both in relation to those parts which the witness had admitted saying and any other parts. It is my view that the words of the proviso make it clear that the discretion of the court to require production of the writing for the court's inspection is not dependant upon formal proof of the writing, but may be exercised at any time during the trial when a witness is being cross-examined as to a previous statement or statements in writing. Furthermore the court is not confined in its inspection to those parts of the writing which have been touched upon by counsel but may examine the whole of the writing or writings. Of course it would be wrong to compare what one witness had said at the earlier trial with what the other had said at the second trial. The inspection must be limited to the statement reduced into writing of the particular witness being cross-examined. That is too basic for me to have any doubt that the magistrate erred in this respect.

20. I hold that the magistrate was perfectly entitled to call for the writing and to inspect it and make such use of it for the purposes of the trial as he thought fit. This means that he was entitled to compare the writing with the witness' evidence before him to see to what extent there were discrepancies or to what extent there was uniformity. As Channell B put it in R v Riley & Another ⁽²⁾ "..... the general result of comparison may be rather confirmation than contradiction ". In R v Wrinwright ⁽³⁾ the Lord Chief Justice, referring to the difficulty in recording a witness's exact words said "too much importance should not therefore to be attached to such variations, and if there were a substantial agreement between the evidence at the preliminary inquiry and that adduced at the trial, that was sufficient.

21. It seems clear that the whole purpose of the exercise is that the judge takes a supervisory role to see that the cross-examination is fair. Having compared the writing and the evidence he reached the conclusion that the writing was not very helpful. Such discrepancies as did appear "were not of any great significance" .

22. It is therefore difficult to see that an exercise which had such a negative effect on him could possibly have caused him to come to a wrong positive conclusion. He clearly took the view that it was the evidence before him that mattered. I do not think there that there is anything in this first ground of appeal.

23. The second ground of appeal is that the learned magistrate misdirected himself as to the burden of proof and/or in his approach to assessing the evidence.

24. Objection is taken to the following words of the magistrate in his Statement of Findings:-

in paragraph 3 :

"........... in the event such discrepancies as did appear were not such as to strike at the basis of the prosecution evidence";

in paragraph 7 :

'so that the cause of the defence was not advanced by this new evidence' ",

in paragraph 8 :

"The only other new evidence was some photographs which were not properly produced but were taken onto the file for what they were worth. Their worth fell far short of disproving the police account of events ...........".

25. Mr. Huggins suggests that these three phrases taken cumulatively show that the magistrate thought that there was a burden on the defence. He relied on the case of Derek Aplin & others ⁽⁵⁾ where the Full Court allowed an appeal from the decision of a District Judge.

26. Mr. Jenkyn-Jones counters this argument by drawing attention to the complexity of the issues before the District Judge in that case, which involved a hearing of a conspiracy charge at the same time as offences under the Prevention of Bribery Ordinance and the operation of the presumption in Section 25 of the Ordinance. He points out that it was only with great reluctance that the court quashed the conviction because they felt confident that the District Judge was aware of the proper burden. He distinguishes this case on the ground that it is not a complicated case.

27. It is my view that there was a clear indication in Derek Aplin's case that the District Judge had intimated at the close of the prosecution case that there was a burden on the accused to disprove the Crown case. That is not the situation here. Furthermore the issues were not difficult in this case. Unfortunate though the magistrate's choice of words was I do not consider that it indicates such a fundamental error as to render the conviction unsafe. He the clearly was aware of the general onus of proof. He averted to it in paragraph 9 of his Statement of Findings. Of course if the photographs were not properly before the magistrate, he should not have looked at them in any event, and it matters not what value he would have placed on them But even assuming that he was perfectly entitled to look at them it is difficult to see that they would have caused him to have any doubt about the credibility of the evidence of the prosecution witnesses. His findings on their credibility mere absolutely crucial to this case The defence case was diametrically opposed to their evidence. On their evidence the appellant was caught red handed with a white plastic bag (containing the 10 packets of drugs) in his possession custody and control. On the appellant's evidence it was a frame up and he only saw the packets of drugs for the first time at the police station. If the magistrate was satisfied that the prosecution witnesses were truthful witnesses it is difficult to see that he could have come to any other conclusion but that the appellant was guilty. Their evidence established that the plastic white bag containing the 10 packets of drugs were in appellant's possession custody and control. There was conclusive evidence that those packets contained the drugs referred to in the charge. It is implicit from the magistrate's findings that he was satisfied beyond reasonable doubt that the plastic bag containing the packets of D.D. were in the appellant's possession. The presumptions in Sections 46 & 47 would thus arise. Since the magistrate clearly disbelieved the appellant, and there was nothing in the evidence to rebut the presumption, the Crown case had been established beyond reasonable doubt. Indeed the prosecution evidence to the effect that the appellant had said "Give me a chance. These things do not belong to me. I'm just helping another person to sell these things," went the other way.

28. It is convenient to deal with the next two grounds of appeal together.

29. The 3rd ground of appeal is

"The learned magistrate appears to have regarded as material the fact that the alleged conduct of the appellant took place "in a 'black spot for drugs' [par. 4 of Statement of Findings]. This was wrong because the fact that previous offences involving dangerous drugs had occurred in that spot could not have been relevant in determining whether the particular offence alleged had been committed there by the appellant.''

30. The 4th ground of appeal is

"The reason given in paragraph (5) [of Statement of Findings] for believing that the appellant had concealed dangerous drugs under the restaurant table was a manifestly unsound ones."

31. Mr. Haggins concedes that these two grounds are insignificant compared with the first two grounds, but appears to rely upon them as a make weight. Although Mr. Jenkyn-Jones has attempted to argue differently I think it is fair to say that the magistrate did place some significance on the fact that the police officer described the place as a black spot and also placed some reliance on the findings in paragraph (5). Nevertheless it does appear to me that neither of these grounds would be sufficient to raise a doubt as to the correctness of the magistrate's finding on credibility.

32. This was a strong case based on the evidence of two police officers both of whom saw the white plastic bag in the appellant's hands and whose evidence had been closely scrutinised in relation to one another and found to be consistent and in each case the magistrate had taken, the added precaution of comparing what each witness had said in evidence with what he had said on an earlier occasion.

33. I have not had the opportunity of seeing these witnesses and am not prepared to say from an examination of the record and findings that the magistrate was wrong in his finding on credibility.

34. For these reasons, this appeal against conviction is dismissed.

(1)    56 Cr. App. R. 240

(2)    (1866) 4 F&F 964

(3)    (1875) 13 Cox 171

(5)    Crim. App. 707/76

Representation:

Mr. Adrian Huggins (John Ip & Co.) for Appellant

Mr. Jenkyn-Jones, counsel for Crown/Respondent