Wong Kam-tong and Others v. The Queen
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CACC000666/1981 Appeal - trial by judge without jury - challenge to judge's note of evidence - court more willing to admit other evidence of proceedings where case is criminal in nature than where it is civil - alleged discrepancies must nevertheless be significant. Criminal law - Reasons for Verdict - judge seeking corroboration although not required by law or practice - no duty to state what evidence he regards as corroboration - unnecessary to mention all defects in prosecution evidence provided that he shows he has evaluated evidence and dealt with major inconsistencies - court will assume, in absence of contrary indication, that judge considered all the evidence and had a grasp of the case presented to him.
BETWEEN
________ Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A. Dates of hearing: 23, 24 and 25 February 1982 Date of Judgment handed down on: 12 March 1982 _______________ J U D G M E N T _______________ Sir Alan Huggins, V.-P. : 1. The three Appellants were serving police officers. They were charged with conspiracy to pervert the course of public justice by arresting a man named SHUM Wai-ming on a charge of unlawful possession of an offensive weapon which they knew to be false. They appealed against convictions and sentences. 2. Shum was a person of known bad character and the burden of the defence was that he, on his part, was falsely accusing the Defendants of trying to frame him. His evidence was that the 1st Defendant was demanding that he act as a police informer on pain of being falsely accused himself if he did not: that he (Shum), at the instigation of his friend LEUNG Yat-chan, went with Leung to report the conspiracy to the Complaints Against Police Officers (CAPO) office: that he was there searched and found to have no offensive weapon on him: that he was conducted to a restaurant where he believed an offensive weapon would be planted on him by the 1st Defendant: that he there met the three Defendants who were members of the same police team and was told by the 1st Defendant in the presence of the others that as he had failed to assist in the bringing of a charge against anyone else a weapon would be planted on him: that he was then arrested and taken down to the street, where he and the three Defendants boarded a taxi: that they went in the taxi to a place in Wanchai and there alighted: that the 2nd Defendant went away and returned with a knife: that they all then went in a taxi to the Wanchai Police Station, where he was taken to the Action Souad Room and the 2nd Defendant began to write a report, which was incomplete when the CAPO officers arrived. The CAPO officers confirmed that Shum made a report to them, that he was searched and conducted to the restaurant, that he there talked with the Defendants, that they then left with him in a taxi and that they found him under arrest at Wanchai police station. The 1st and 2nd Defendants did not give evidence, but the 3rd Defendant testified that they had not left the vicinity of the restaurant in a taxi with Shum but, having gone separately, had seen him in the street, had inadvertently discovered that he had a knife tucked in his waistband and had thereupon arrested him and taken him to the police station. The defence suggested that Shum, knowing where the Defendants were planning to go, deliberately had himself arrested with the knife in his possessior as part of his scheme to discredit the Defendants. 3. At the outset counsel for the Appellants sought to argue that the appeal should be allowed on the ground that the judge's notes of the evidence were inadequate and in some respects inaccurate. That of itself would not be a good ground of appeal unless it were shown that the omissions and inaccuracies were material and such as could have affected the outcome of the trial. What is said in the event is that, had the judge had before him a full and accurate note of the evidence, he could not have come to the verdicts that he did, and the point is, therefore, merely the foundation of the other grounds of appeal. 4. We had previously adjourned this appeal when the record was challenged, so that an approach could be made to the trial judge for his approval of what was said to be a full and correct record. It has now been confirmed that two letters were sent to, and received by, the judge's clerk. In the first it was said that the suggested amendments were sent "as a matter of courtesy and no specific request was made for the judge's comments. In the second papers were forwarded for consideration. Unfortunately the judge was never informed that the Court of Appeal had adjourned so that his comments could be obtained and he was never asked. "Yea or Nay" whether he approved the proposed amendments. No reply of any kind was received to these letters - not even the courtesy of the acknowledgment which was in fact requested and which ought to have been made even without request. We stood the case out again in order that further inouiries could be made by telephone and we are now informed that the judge was aware that the inquiries emanated from this court and was further aware of the proposed application to amend. Nevertheless he declined to make any comment and gave no reasons for his refusal. We are bound to say that this indicates a regrettably unhelpful attitude. It may be that he cannot now recall the evidence sufficiently clearly to say whether any of the amendments is justified, but if that be the position he could and should have said so. 5. We have had occasion before to make observations on the keeping of a note of evidence. The importance of such a note where appeals are by way of rehearing upon the papers cannot be over-emphasized. At the same time we have recognised the difficulty of taking a full note and that it is enough that the substance of the evidence should be recorded. Here the parts under question were recorded in question and answer form and we have said that where a note is taken in that form this court should be entitled to assume that the ipsissima verba of the witness have been taken down. We have some doubt whether either the original or the suggested version of the record does in truth represent the ipsissima verba. Nevertheless, as the judge has not seen fit to express dissent, and as we have the assurance of two counsel who were present at the trial that the proposed amendments are justified, we have been prepared to allow them to be made. In so doing we have not considered whether they substantially alter the sense of the evidence. 6. Where no shorthand note of the evidence is taken, the danger of inaccuracy in the record is inevitably increased. Despite that, in a civil case we might be slow to allow amendments not approved by the judge unless they were agreed by counsel for the parties. In a criminal case we are more ready to allow amendment, but even then applications should be restricted to matters of real significance and the proposed amendments should be tendered to the judge and to the court in the form of an amended record, or part thereof, following the same pagination as closely as possible with the alterations or additions marked in red, so that the nature of the amendment can be readily appreciated. 7. The first two and the fourth grounds of appeal complain that the judge, having decided to treat Shum as an accomplice whose evidence required corroboration - which he was not -, decided that his evidence was sufficiently worthy of credit to be capable of corroboration and failed to indicate what evidence he thought to be corroborative. We think that it was very proper for the judge to look for corroboration of the evidence of a witness of the reputation which Shum had. We will come back to some of the criticisms of his evidence, but it is enough at this stage to say that we are not persuaded that his evidence was so manifestly unworthy of belief that it failed of its own inanition. The question then arises whether there was evidence capable of corroborating the guilt of the Defendants. If there was such evidence, we do not think that it was necessary for the judge to say expressly what he regarded as corroboration: we are entitled to assume that he correctly directed himself, unless there is some indication of mis-direction. Where corroboration is required as a matter of law or practice, a judge should indicate the evidence which he regards as capable fo constituting corroboration, but this is not to be expected where corroboration is not so required. It is argued that there was no evidence capable of constituting corroboration, but we cannot accept that. There was evidence, contested by the defence, that Shum was seen to leave the vicinity of the restaurant with the three Defendants. This was not, of course, conclusive of the Defendants' guilt, but it did (if believed) tend to confirm that Shum's story was true. 8. The judge said:
9. It is possible to take that passage as indicating that he would have convicted even without corroboration, but we consider that it would be safer to assume that he would not have done so. The third ground of appeal suggested that in so far as the judge may have been willing to convict without corroboration of Shum's evidence he would have been wrong to do so. This is really a repetition of the contention that Shum was totally uncreditworthy, which we are not prepared to accept. 10. Ground 4 was based upon inconsistencies and other weaknesses in the evidence of Shum, each of which, in the event, counsel was forced to concede was not of sufficient importance to justify interference by this court. The result is that we have a general submission that the evidence as a whole was such as to make the verdicts unsafe and unsatisfactory (Ground 12). Mr. Eddis treated us to a nice analysis of the evidence of Shum and the other prosecution witnesses and at the end of it we were left not merely with no doubt that there was evidence upon which the judge could properly convict but with no feeling of surprise that he did convict. It was suggested that, because he did not mention many of the defects in the case for the prosecution, the judge did not adequately consider them - the more especially because, the note of evidence not being as full as it could have been, the record did not disclose the weaknesses. Whilst a judge must show in his Reasons for Verdict that he has evaluated the evidence and must, therefore, deal with any major discrepancies, that does not mean that he must deal with all the inconsistencies relating to peripheral matters. Equally it must not be assumed that he overlooked or ignored such inconsistencies. It has been said that it is wrong to treat a jury, which is expected to absorb highly complex evidence, as being totally incapable of retaining points of importance and thus as needing reminder not only in the closing speech for the defence but also by the judge in his summing-up. What applies to a jury applies no less to a judge sitting alone and we are entitled to assume, in the absence of indication to the contrary, that the judge had a grasp of the case presented to him. If a jury is expected to retain the significant points in the evidence without the benefit of notes, the fact that a judge's note omits part of the evidence is not to be taken as proving that he has ignored that evidence, particularly where the points made appear in the record of counsel's submissions. 11. We shall not deal individually with all the points taken before us. The judge was not blind to the seriousness of the charges or to the dangers inherent in a case of this kind. Some of the weaknesses in the evidence he did mention and he gave reasons for concluding that they were not fatal. It must be assumed that those weaknesses which he did not mention were, in his opinion, no greater barrier to his accepting the substance of the prosecution case. We are quite unable to say he was wrong. The contention is that the weaknesses were of more consequence than the trial judge thought and that there were so many of them that there must remain a doubt as to the guilt of the defendants. We are not persuaded that any of the points was of real substance, and however many times one adds nothing to nothing, the total is still nothing. Thus it was argued that there were discrepancies between the witnesses, and between the evidence given by the same witness at different times, as to the spot where Shum and the three Defendants were alleged to have boarded the taxi. This was a peripheral matter. The places indicated could not have been more than 80 to 100 yards apart and at the first trial no photographs were shown to the witnesses. There was no evidence whatever that the taxi driver was tailoring his evidence at the second trial to bring his evidence more into a line with that of the investigating officers and the judge was fully entitled both to accept his explanation and to treat Shum's previous evidence on the point as an error of recollection on a matter of no importance. Then Inspector Lau was criticised for his obstinacy in maintaining his assertion that he received information in the Report Room of Wanchai Police Station about Shum's arrest at a time when, it is submitted, no report had been made there. We are not satisfied that it was proved that news of the arrest could not have reached the Report Room, and if a witness persists in holding to evidence which he believes to be true that can hardly be described as obstinacy. These are just instances of the arguments advanced. They were points properly taken before the trial judge, but, once rejected by him, it is difficult to see how they could be expected to succeed before an appellate court. 12. In Ground 7 it was alleged that the judge mis-directed himself in saying that the 2nd Defendant accused Shum of concocting evidence against him. Whether that be so or not, the facts remain that the 2nd Defendant did not give evidence and that his case necessarily involved an allegation that Shum was concocting evidence against him. There is no substance in this point. Ground 8 is similarly answered. 13. The only other matter to which we need refer is Ground 10, which draws attention to the fact that the Defendants made similar statements to the police after arrest at a time when, it is said, they had had no opportunity for prior consultation. The judge expressly mentioned this in his judgment and did not attach weight to it because he thought the Defendants had agreed beforehand on the story they would tell at the trial of Shum for the offence of which they were intending to accuse him. 14. In the event we have no doubt that the evidence supported convictions and that the judge gave proper consideration to all the issues before him. 12th March 1982. Representation: F. Eddis (D.L.A.) for all appellants. Mason-Parker for Crown/Respondent. |
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