Chau Man v. The Queen
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CACC000591/1979
----------------- Coram: Roberts, C.J., Trainor and Cons, JJ. Date of Judgment: 24 September 1979 ----------------- JUDGMENT ----------------- Cons, J. gave the judgment of the Court: 1. The appellant was convicted in the District Court of robbing a taxi driver and was sentenced to imprisonment for five years. He applies now for leave to appeal against both conviction and sentence. 2. Three grounds are put forward in respect of the conviction. The first is that three detective constables were present when the appellant was arrested but only one was called as witness for the Crown. There is no substance in this argument. That was settled in Reg. v. Yip Choi-hoi(1), a decision with which we respectfully agree. 3. The second ground attacks the credibility of the police by reference to a small bottle of medicine which was said to have been found on the appellant at the time of his arrest but was not produced at the trial. We do not propose to go into the details of the argument. It is highly contrived and of little substance. Even if it had been advanced at the hearing it could not possibly have affected the judge's opinion of the witnesses. 4. The third ground is that the police witnesses had changed their evidence from what they said at an earlier trial. This ground took us completely by surprise, for the records supplied to us make no reference of any kind to an earlier trial. However, counsel for the Crown agreed that there had been an earlier trial, which proved abortive and we, therefore, thought it right to adjourn the hearing until today in order to obtain copies of that earlier record. These show that the original trial judge stopped the case on the second day of hearing and after eight witnesses had given evidence for the Crown. At that stage the appellant was giving evidence on a voir dire. The judge took the view that the appellant was departing from the case that his solicitor had put to the Crown witnesses in cross-examination. The judge's note reads thus:
We understand also from a note taken at the time by counsel who then appeared for the Crown that the judge directed that no mention of the first trial should be made in the re-trial. 5. It is well settled that a High Court Judge has discretionary power to discharge a jury during the course of a trial: Reg. v. Lewis(2). We accept that by analogy a District Court Judge has a similar discretionary power to stop a trial before himself alone and order it to be retried by another judge. We doubt, incidentally, if he has authority to say that no reference to the original trial shall be made in the re-trial. Nevertheless, it is a power that should be sparingly exercised and only for very strong reason. With respect to the learned judge, we do not think any strong reason existed in this case. It is not uncommon for a defendant to give evidence at variance with that suggested in the cross-examination of Crown witnesses. The proper course then is for the judge to allow the Crown to call or recall witnesses in rebuttal, if he thinks it necessary. There is no justification for the delay and expense of a second trial. 6. We have had the opportunity to compare the two records. As the appellant points out, there are some discrepancies. But they are all so trivial in nature that we see no reason to doubt the integrity of the officers. 7. The appellant has twice before been convicted of robbery. On each occasion he was sentenced to a lengthy term of imprisonment. He has three convictions for other offences. Taxi drivers are, by the very nature of their work, in a vulnerable position especially late at night. We do not think a sentence of five years in this instance was excessive. 8. For these reasons leave to appeal against both conviction and sentence is refused. Representation: Appellant in person. M.M. Sinclair, counsel for the Crown/respondent. (1) (unreported) Crim. App. 1972 No. 167 (2) [1909] 2 Crim. App. R. 180 |