Chan Chiu Ming v. The Queen
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CACC000603/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 603 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 31st October, 1972. ----------------- JUDGMENT ----------------- 1. This is a type of case which has always caused me the greatest anxiety. The Appellant was charged on two charges, one of driving a private motor-car and carrying passengers for hire or reward and the second, which no doubt arises as a result of that, of driving without third party insurance. He was convicted on both charges, fined $150 on the first charge and fined $200 and disqualified from holding or obtaining a licence for fifteen months on the second charge. 2. The evidence was of the kind which is common in this sort of case - where police officers said that they were standing by the road; that a driver hailed them and asked if they wanted to go anywhere; that when they said they wanted to go to St. Teresa's Hospital and asked how much the driver replied "$2"; that they got in and went to the hospital; that there (or so one of them said) the request for money was repeated, two dollars were handed over and at that point the trap was sprung and the driver was arrested. 3. That is the general tenor of the evidence, but the evidence was given by two police officers in this case, one of whom was sitting in the front seat next to the driver and the other who was sitting in the back, and, as everybody can see, there were serious discrepancies in their evidence - discrepancies as to the request for money, as to the length of time the vehicle was stationary at the hospital before it proceeded to the Police Station and, thirdly, as to the place where the money was actually taken from the driver. The first witness said that it was taken from him at the Police Station and not before, whereas the second witness seems to me to have said it was both at St. Teresa's Hospital and at the Police Station, but the record may perhaps be ambiguous on this point. Mr. Wong, who appears now for the Appellant, has submitted that when the witness said that his colleague had seized the coins from the Appellant's hand as an exhibit, the following question
was intended to ascertain beyond doubt where the coins were seized. It is clear that the words used - and it must be remembered that the Appellant was represented by a solicitor - were not such as to clear up that particular point: it was the identity of the coins, rather than the place where they were taken, to which the question appears to have been addressed. 4. However, as I say, there were very serious discrepancies in the evidence of these two witnesses, a matter which was quite apparent and which the learned magistrate fully appreciated. He saw that this was not only a serious matter because the police witnesses were not agreed, but that it ran to the very root of the case, as the request for money and the hanging over of money were essential to a conviction. The learned magistrate, having considered the evidence, came to the conclusion that the second witness was not telling the truth and at the same time he came to the conclusion that the first witness was telling the truth. That, of course, he was perfectly entitled to do, and it is part of the function of a judge sitting alone - just as it is part of the function of a jury - to decide which evidence he believes. But my difficulty in this case arises in part from the way in which the learned magistrate disposed of the evidence of the second witness. He said:
Now it is submitted - and I think submitted with some justification - that the rejection of the witness's evidence appears to be related to a large extent to the fact that the learned magistrate thought he had deposed to matters of which he could have had no direct knowledge, and the only meaning which, it has been suggested, could be given to those words is a reference to the fact that the second witness was sitting at the back of the car and the first witness at the front. They were in company throughout the events which concern this case and I find it very difficult to accept that there was anything to which the second witness deposed as having been done by his colleague of which it would have been a physical impossibility for him to have direct knowledge. Whether in fact he did have direct knowledge of everything that took place is another matter, but the learned magistrate has used the words "can have had no direct knowledge". If it was on that basis that he rejected the second witness's evidence then I find it a little difficult to say that these convictions can stand. 5. The discrepancies here were, as I said, of a very serious nature, going to the root of the case. Either of the stories told by these two Prosecution witnesses - or neither - may have been true. The learned magistrate was, no doubt, in some measure led to accept the evidence of the first witness because he was satisfied that the evidence of the second witness was untrue. That, therefore, meant that the alternative was no longer in existence. But his reason for rejecting that alternative seems to me to be open to question. Also I confess to some anxiety about the inherent probability of that part of the first witness's evidence in which he says that the Appellant held the $2 coins in his hand from the moment that they were paid over until they reached the Police Station, which was a period, on the minimum estimate, of something like ten minutes to fifteen minutes, and, as the solicitor for the Appellant in the court below said, one can be very sceptical when it is suggested that this man was allowed to hold the coins in his hand throughout this period. 6. I am extremely reluctant to say that a decision on fact by the learned magistrate ought not to stand. However, having given this matter the most anxious consideration I cannot in conscience say that I believe it is safe to allow these convictions to stand. I therefore have no alternative but to quash the convictions and to set aside the sentences. That being so it is unnecessary for me to say anything upon the matters which have been argued in relation to the sentence. 31st October, 1972. Representation: |