Mui Yuen v. The Queen

CACC001112/1978

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1112 OF 1978

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Coram: Addison, J.

Date of Judgment: 1st December, 1978

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JUDGMENT

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1. The appellant was convicted of theft contrary to section 9 of the Theft Ordinance and was sentenced to 18 months' imprisonment. He now appeals against conviction.

2. The case for the Crown was simple in the extreme. The victim was a passenger on an omnibus when he noticed the appellant remove money from his hip-pocket. He took hold of the appellant who was there and then arrested by a plain clothes officer who himself had witnessed the appellant's misdeed.

3. The learned magistrate who heard the case accepted that evidence and convicted the appellant.

4. There is only one matter giving concern in this appeal and this relates to the cross-examination as to the bad character of this appellant at the trial.

5. The magistrate's record at this point of the trial when the appellant was giving evidence is as follows:

"Cross-examination:

P.W.1 and P.W.2 are telling lies about me. At first they arrested both of us. Later they released him saying I had picked his pocket.

6. The complainant did say in his evidence that one of the plain clothes police officers thought initially he was the defendant's accomplice but the appellant in his testimony was not suggesting the complainant was himself the thief or connected with the theft. His allegation was simply that the complainant and the police officer were telling lies about him.

7. That allegation should not have led the learned magistrate to let in evidence as to the appellant's previous convictions.

8. There is nothing on the record to show that an application was made by the prosecutor to lead such evidence nor that the magistrate in the exercise of his discretion allowed it. I assume such occurred but in my judgment the learned magistrate erred in allowing any such application.

9. Section 54(1)(f)(ii) of the Criminal Procedure Ordinance is a re-enactment of section (1)(f)(ii) of the Criminal Evidence Act, 1898, and it applies to the Magistrates Courts by reason of section 58 of the Criminal Procedure Ordinance, Cap. 221.

10. Section 54(1)(f)(ii) is in these terms:

"A person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is a bad character unless -

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution."

11. The wording of this sub-section and the circumstances when it may be applied so as to permit cross-examination of an accused as to his previous convictions have been the subject of numerous cases in the law reports. Some of those cases are difficult to reconcile. It is unnecessary for me to descend into detail because the law now is that some latitude is afforded an accused without invoking the operation of the sub-section.

12. In R.v. Rouse⁽¹⁾, Darling J. said:

"Merely to deny a fact alleged by the prosecution is not necessarily to make an attack on the character of the prosecutor or his witnesses. Such a denial is necessary and inevitable in every case where a prisoner goes into the witness-box, and is nothing more than a traverse of the truth of an allegation made against him; to add in cross-examination that the prosecutor is a liar is merely an emphatic mode of denial, and does not affect its essential quality."

13. That case was cited by Goddard, Lord Chief Justice in the case of R.v. Clarke⁽²⁾ who at page 130 of the report said this:

"One may remember in these cases that it is always in the discretion of the judge to rule out a cross-examination and tell counsel for the prosecution that he is not going to allow a cross-examination on previous convictions, and so forth. For instance, supposing the prisoner, in giving his evidence, said: The police constable is a liar' or something of that sort. I do not want to make any joke about the matter or put it other-wise than perfectly seriously, but one knows well that police officers are regarded as fair game for cross-examination and attack. It is one thing to say: 'The police constable is not telling the truth,' and merely because that is said I do not believe any judge would allow a roving cross-examination into the prisoner's past. All he is doing is pleading Not Guilty with emphasis, or as Darling J. said in ROUSE (1904) 1 K.B. 184, at p. 187, that is 'merely an emphatic mode of denial.' It is quite another thing when a suggestion is made against police officers that they have been conspiring together to defeat the ends of justice. Mr. Simpson in the course of his argument put very forcibly this point: if we uphold cross-examination in this case, it simply means that a prisoner can never deny a statement. I would say that the answer to that is that, if a prisoner, having signed a statement to a police officer and having put his signature as is always done in two places, one at the end of the caution and one at the end of the statement, does take up the line of saying that the police have concocted the statement, he does so at the risk of having his character laid bare, if he has a character which it is his wish to conceal, because clearly, if such conduct is to be attributed to police officers, the jury is entitled to know the character of the man making the imputation and it is not to be thought that the man who is making the imputation, if he has a list of convictions, stands in the same position as an inspector of police or any other officer who must be a man of good character."

14. Both these cases were cited in the judgment delivered by Devlin J., as he then was, in R. v. Cook⁽¹⁾. In referring to section (1)(f)(ii) of the Criminal Evidence Act, he said:

"It is clear from the sub-section as a whole that it does not intended that the introduction of a prisoner's previous convictions should be other than exceptional. The difficulty about its phraseology is that unless it is given some restricted meaning, a prisoner's bad character, if he had one, would emerge almost as a matter of course. Counsel for the defence could not submit that a witness for the prosecution was untruthful without making an imputation upon his character; a prisoner charged with assault could not assert that the prosecutor struck first without imputing to him a similar crime. The authorities show that this court has endeavoured to surmount this difficulty in two ways. First, it has in a number of cases construed the words of the sub-section as benevolently as possible in favour of the accused. Secondly, it has laid down that, in cases which fall within the sub-section, the trial judge must not allow as a matter of course questions designed to show bad character; he must weigh the prejudicial effect of such questions against the damage done by the attack on the prosecution's witnesses, and must generally exercise his discretion so as to secure a trial that is fair both to the prosecution and to the defence.

The judgments in many of the earlier cases are based upon a limited construction of the statute. Thus, in Rex v. Rouse it was held that a statement by the prisoner in cross-examination that the prosecutor was a liar must be regarded only as an emphatic denial of the truth of the charge against him and did not enable the prosecution to put his character in issue."

And at page 347, in referring to the discretionary power of the trial judge, Devlin, J. added:

"In our opinion the difficulties created by this subsection are as a general rule best dealt with in accordance with the principle in Rex v. Hudson as applied in Rex v. Jenkins. The attempt to give the words a limited construction has led to decisions which it is difficult to reconcile; now that it is clearly established that the trial judge has a discretion and that he must exercise it so as to secure that the defence is not unfairly prejudiced, there is nothing to be gained by seeking to strain the words of the subsection in favour of the defence. We think, therefore, that the words should be given their natural and ordinary meaning and that the trial judge should, in his discretion, do what is necessary in the circumstances to protect the prisoner from an application of the subsection that would be too severe ....... In particular, no firm rule has been, or can be, laid down to govern the sort of circumstances we have to consider here where the defence involved a suggestion of impropriety against a police officer. The cases on this subject-matter - in particular Rex v. Preston, Rex v. Jones and Reg. v. Clark -indicated the factors to be borne in mind and the sort of question that a judge should ask himself. Is a deliberate attack being made upon the conduct of the police officer calculated to discredit him wholly as a witness? If there is, a judge might well feel that he must withdraw the protection which he would desire to extend as far as possible to an accused who was endeavouring only to develop a line of defence. If there is a real issue about the conduct of an important witness which the jury will inevitably have to settle in order to arrive at their verdict, then, as Singleton J. put it in Rex v. Jenkins and Lord Goddard C.J. repeated in Rex v. Clark, the jury is entitled to know the credit of the man on whose word the witness's character is being impugned."

15. The leading case on this matter is Selvey v. Director of Public Prosecutions⁽¹⁾, a decision of the House of Lords. Part of the headnote to that report reads as follows:

16. Viscount Dilhorne, having referred to the decision of the Court of Criminal Appeal in R.v. Rouse went on to say at page 456 of the report:

17. It is implicit from this extract that where what was said by the accused is nothing more than a forceful denial of the charge then cross-examination of the accused's previous convictions is impermissible.

18. Lord Hodson in his judgment at page 471 said:

19. Lord Guest in his judgment adverted to the discretion vested in the trial judge to prohibit cross-examination of an accused. The Crown sought to argue in the case there was no discretion exercisable. He said at page 482 of the report:

"If I had thought that there was no discretion in English law for a judge to disallow admissible evidence, as counsel for the Crown argued, I should have striven hard and long to give a benevolent construction to section 1(f)(ii), which would exclude such cases as Rouse 'liar,' Rappolt 'horrible liar,' Jones 'fabricated evidence,' Turner rape and other sexual offences, Brown 'self defence.' I cannot believe that Parliament can have intended that in such cases an accused could only put forward such a defence at peril of having his character put before the jury. This would be to defeat the benevolent purposes of the 1898 Act, which was for the first time to allow the accused to give evidence on his own behalf in all criminal cases. This would deprive the accused of the advantage of the Act. But I am not persuaded by the Crown's argument and I am satisfied upon a review of all the authorities that in English law such a discretion does exist. It was exercised for the first time in relation to this section in Watson. Discretion as such has the general blessing of Lord Moulton in Christie v. D.P.P. and thereafter it has been the uniform practice of judges to exercise it in this class of case ... In face of this long established practice it is, in my opinion, now too late to say that the judge has no discretion. While I leave to others more versed than I am in English criminal law and practice to discuss the origin of this discretion, I would assume that it springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused."

20. By implication Lord Guest was in fact approving the decision in R. v. Rouse which did not in fact require the exercise of any discretionary power to prevent injustice.

21. This case and the others cited earlier, are, I think, ample authority to hold that an accused does not lose the benefit of the section merely because he abuses a witness by calling him a liar. It is no more than an emphatic denial of the Crown's evidence. Unfortunately some defendants have not that roundness of phrase which would enable them to traverse the evidence other than by resorting to such vernacular.

22. It is when the accused goes further and alleges as in Clark's case that the police compelled him to write down a confession at their dictation, or, as in the case of R. v. Jones⁽¹⁾, where concoction of the statement by the inspector was advanced, that a judge may consider invoking the subsection. In this latter case, Lord Hewart, L.C.J. said at page 119:

"A clear line is drawn between words which are an emphatic denial of the evidence and words which attack the conduct or character of the witness. Applying that ratio decidendi to the present case, it appears to this Court that it comes within the line of saying what is forbidden. It was one thing for the appellant to deny that he had made a confession; but it is another thing to say that the whole thing was a deliberate and elaborate concoction on the part of the inspector; that seems to be an attack on the character of the witness."

23. The fact that in cases other than rape, the defence of the accused makes it imperative for him to resort to more serious imputations by going beyond a mere denial of guilt is neither here nor there. As was decided in Selvey's case there is nothing in the wording of the subsection suggesting that its application is affected by the existence or non-existence of circumstances of necessity. There is a safeguard against resulting injustice and this is in the overriding discretionary power vested in the court to exclude its operation where evidence of previous convictions would result in an unfair trial.

24. Speaking entirely for myself, I think the time has come in Hong Kong when courts should again more readily consider letting in evidence as to a defendant's bad character where by the nature or conduct of his defence he has cast imputations on the character of the police akin to those made in the Clark's and Jone's (1924) 17 Cr. App. R. 117 cases. Too frequently allegations are made against the police of brutality used by them in extracting confessions without the court or jury having any inkling of the defendant's character.

25. It is not a case, as some prosecutors view it, of "what is sauce for the goose is also sauce for the gander". It is evidence which enables the tribunal to weigh the likelihood of the allegation being true, as originating from a reliable or an unrealiable source. There is the in-built safeguard in the discretionary power residing in the trial judge. Always to exercise that power in favour of an accused is as likely to cause injustice as would the reverse situation. Where evidence of an accused's previous conviction is admitted it would still fall for the trial judge properly to direct the jury or himself (where he sits without one) as to the way in which such evidence must be treated.

26. The trial judge in R. v. Cook when addressing the jury told them:

"When allegations are made against ...... witnesses for the prosecution, you should consider the person who is making them, and for that purpose you are entitled to take into consideration that he admits he is a convicted criminal ... it does not make it any more likely that he committed this crime but it may mean that it is more unlikely that the allegations made against (the witness) are true than if they were made by a person of good character." (See Archbold 39th Edition, paragraph 567)

27. In the instant case, the magistrate went the other way. He immediately allowed cross-examination of the appellant based on his having accused the prosecution witnesses as liars.

28. What then is to be done in this appeal? The answer is to be found in the wording of section 119(d) of the Magistrates Ordinance, Cap. 227, and in the decision given by the Court of Criminal Appeal in Cook's case. Section 119(d) enacts that the judge on the appeal "may make such other order in the matter as he thinks just." As I see it, this wording is the approximate to the proviso to section 4(1) of the old Criminal Appeal Act, 1907.

29. The learned magistrate did have regard to the appellant's record in finding him guilty, but the evidence was such that even without it, there was over-whelming evidence as to his guilt.

30. As Devlin, J. pointed out in R. v. Cook at page 349 of the report:

"It is not often in this type of case that the proviso to section 4(1) of the Criminal Appeal Act, 1907, can properly be applied. But here, in our judgment, the case against the appellant is overwhelming. ...... we are satisfied that the only reasonable and proper verdict on the facts was one of guilty, and that there has been no miscarriage of justice."

That appeal was dismissed. Identical circumstances obtain in this case and it is for this reason that the appeal against conviction is likewise dismissed.

Representation:

(1) (1904) 1 King's Bench 184 at p. 187.

(2) (1955) 39, C.A.R. 120.

(1) (1959) 2 Queen's Bench Division 340, p. 344.

(1) (1968) 52 C.A.R. at p. 443.

(1) (1924) 17 Cr. App. R. 117