Chan Chi v. The Queen
Read the full judgment text of CACC 667/1967 on BabelCite. This Court of Appeal judgment was delivered on 2 February 1968.
1. Some five grounds of appeal have been filed and argued in the present case, but we think it is necessary or desirable to reduce to writing our reasons for the decision on only one of them.
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CACC000667/1967 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 667 OF 1967 -----------------
Coram: Hogan, C.J., Rigby, S.P.J., Blair-Kerr, J. Date of Judgment: 2 February 1968 ----------------- JUDGMENT ----------------- 1. Some five grounds of appeal have been filed and argued in the present case, but we think it is necessary or desirable to reduce to writing our reasons for the decision on only one of them. 2. When the principal prosecution witness was put forward, the following note was made in the District Judge's record:-
3. In his judgment the District Judge said:-
4. The learned judge went on to refer to certain cases and mentioned that whilst he did not consider the witness to be of tender years he kept in mind his youth and the dangers of imagination etc. at that age. This witness was in fact the principal witness for the Crown. 5. Counsel for the appellant contends that the judge was wrong in dealing with the matter in this way and says that the judge should not have made this arbitrary decision about the competence of the witness to give evidence but, before deciding, should have made enquiries which would have ranged over the background of the potential witness with a view to ascertaining whether, possibly, a rural environment or other factors, such as mental development, would have brought him into the category of a child of tender years even though an individual of the same age, with a different background such as a more urbanised environment, might not be so classified. 6. Counsel also argued that the nature of the enquiries which would have followed, if the witness was held to be a child of tender years, i.e. the enquiries as to whether he understood the nature of an oath, as contemplated by Section 4 of the Hong Kong Evidence Ordinance, or whether, failing such understanding, his evidence could be taken in the circumstances contemplated by that Section, should be related back to the earlier question as to whether the witness was or was not of tender years. In this connection he referred us to the case of Tam Hoi v. The Queen(1), though more for the purpose of illustrating the various steps contemplated by the Section than on the ground that it directly supported his argument. 7. What is a 'child of tender years' for the purpose of giving evidence in a criminal case does not appear to have been authoritatively defined, and, as the learned District Judge has pointed out, it may not be necessary or desirable to attempt to do so and preferable merely to decide each case ad hoc as it arises. 8. There are decisions, such as the Indian decision in Krishnaswami Ayyar v. Chandravadana(2), mentioned in Roland Burrows' Words and Phrases(3), which suggests that the expression 'child' may extend to anyone under 21 years of age, but 'of tender years' would clearly imply a narrower limitation. 9. The question now before us was very carefully analysed by the Ontario Court of Appeal in the Canadian case of R. v. Horsburgh(4) where Evans J.A. divided infant witnesses into the following four categories:-
10. He then considered the argument that since the judge in the court below had questioned certain withnesses before permitting them to be swore and had thereby embarked on an enquiry to determine the competency of these withnesses and the questions and answers not having clearly demonstrated that competency, the evidence could not be received as sworn evidence, because it was not clearly disclosed that the withnesses had an appreciation of the nature and consequences of an oath. He said:-
11. This appears to be a very persuasive authority; adopting an approach that commends itself to us. When the Judge in the court below formed the view that the withness put before him was not a child of tender years, an impression which was strengthened by the reply that he was 14 years age, we think the Judge was entitled, without futher enquiry, to treat withness as competent, and to take sworn testimony from him. 12. Consequently, we think this ground of appeal fails.
2nd February 1968. Representation: Peter Chan (Stewart and Co.) assigned for Appellant. Duckett C.C. for Respondent. Oral judgment on 2.2.68 reduced into writting. (1) (1963) H.K.L.R. p.20. (2) (1913) I.L.R. 37 ...(illegible). 565. (3) Vol. ...(illegible), p.433 (4) (1966) 3 C.C.C. p.240. |
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