Lam Tin-chung v. The Queen

CACC000715/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 715 OF 1969

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Coram: Full Court: Rigby, C.J., Mills-Owens, Huggins, JJ.

Date of Judgment: 16 February 1970

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JUDGMENT

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Mills-Owens J.

1. In this appeal to the Full Court from the verdict of conviction by a District Judge in a criminal case there is raised, not by any means for the first time, the question how far or to what extent the District Judge must make it apparent in his 'Reasons' that he has evaluated the evidence, in all its salient implications. Counsel for the Crown on the appeal, Mr. Lucas, has, as is not infrequently done, invited us to accept that as the District Court is a professional tribunal it is to be assumed to know its duty in this respect, and to have duly carried it out notwithstanding that it is not made apparent in the Reasons that all salient features of the evidence were duly weighed before verdict. We wish to make it clear that we deprecate any presentation of a case on appeal which seeks to avoid the Court enquiring whether a verdict may properly stand. Obviously, a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less. Certainly there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes. That, however, is not the type of case we have in mind.

2. In the present case the appellant was charged with robbery. Substantially the only witness to prove the fact was the complainant. He gave evidence that at 2 p.m. on a certain day the appellant came to his hut at Aberdeen as he lay asleep in his cubicle; that the appellant banged a triangular file on a glass-topped desk smashing the glass, and demanded $2,000; that a conversation ensued in which the complainant said he did not have the money and the appellant asked how then could he have given money to one of his (the complainant's) nephews; that the appellant then told him to be careful or he might be hurt and proceeded to open a drawer of the desk, taking out and appropriating $800, but leaving a few $10 notes.

3. Cross-examination of the Complainant by the appellant in person foreshadowed a very different possible state of affairs. It became apparent that the complainant and the appellant were known to one another and that the appellant was alleging that the complainant owed him $1,000 for money lent in 1966, that the complainant voluntarily gave him $600 and promised to pay the balance of $400 later. The complainant denied that the appellant was accompanied by two friends (being two of the witnesses for the defence, one Lam Loy Man and one Lam Sum). Here it is pertinent to observe that the learned District Judge expressly held that it was highly probable that the appellant was accompanied by those two friends when he went to the complainant's hut at 2 p.m. that day, and that they might well have entered the hut with him. The appellant's cross-examination of the complainent also brought out the not insignificant point that the complainant made no complaint to the police until 8 p.m. that evening. In this respect the complainant said that he first made a journey to Sun Po Kong to consult a clansman as to what he should do and that although he had lived in Hong Kong for more than 20 years, never having been to a Police Station or having been involved in a quarrel with anyone, he did not know how to make a report of a robbery. The complainant denied that he was playing mahjong with other persons at the time of the appellant's visit.

4. Two police officers then gave evidence of arrest of the appellant, as a result of the complaint made at 8 p.m. The first officer, a detective corporal, said that the appellant on being arrested agreed that he had been to Aberdeen that day, that he was then cautioned whereupon the appellant said he did not wish to make any written statement. In cross-examination by the appellant however, the detective corporal admitted that the appellant told him that the complainant owed him $1,000 and that he had obtained $600 from the complainant on this account. The detective corporal admitted also that he had asked the witness Lam Loy Man to come to see him and that he had obtained a statement from Lam Loy Man through another officer; a statement which was not produced, nor, apparently, made available to the defence.

5. Upon this evidence, the defence was called upon; no doubt there was a case to answer. During the prosecution case the appellant had made it clear that he wished Lam Loy Man and Lam Sum to be found and brought to Court as his witnesses. In the event another man Wong Lai Sze was also brought to Court and examined by the appellant as his witness. The appellant himself first gave evidence. He gave a circumstantial account of making a loan of $1,000 to the complainant in 1966, of his efforts subsequently to trace the complainant, of his being unable (because he was in prison) to make a request for repayment earlier, of the complainant putting him off, and finally of the incidents of the day in question, when, he said, having learnt the complainant's address in Aberdeen, he went with Lam Loy Man and Lam Sum first for a swim and then, with them, to the complainant's hut for the purpose of obtaining repayment of the loan. When they got there, he said, the complainant was playing mahjong, several persons being present including the man Wong Lai Sze. The complainant, he said, took him into his cubicle, and, he said, his two friends followed. There the complainant paid him $600, offering him some watches instead of the balance of $400; the appellant refusing the watches and the complainant promising to pay the $400 later. In a detailed cross-examination by Crown counsel, Mr. Soh, further relevant facts, if to be believed, emerged. The appellant said that Lam Loy Man actually witnessed the making of the loan in 1966. When Lam Loy Man came to give evidence he gave detailed corroboration of the fact of the loan. Further, both Lam Loy Man and Lam Sum gave evidence that the appellant had told them on the visit to the complainant's hut that his purpose was to obtain repayment of the loan. This evidence clearly shows, at least, consistency of the appellant; it is also a matter of consistency that this was the reason given by the appellant to the detective corporal on his arrest as the purpose of the visit. The appellant further said in evidence that although he and the complainant were clansmen, he, the complainant, might have a motive to invent a story of robbery because the complainant's nephew had accidentally been killed in a struggle with him (the appellant) some few weeks before the alleged robbery. Wong Lai Sze, he said, was a partner of the complainant in mahjong games conducted by the complainant at his hut.

6. We have already referred to some of the evidence of Lam Loy Man. He confirmed that there were persons playing mahjong in the complainant's hut at the time, including Wong Lai Sze. But, he said, he was not a witness to the handing over of the $600 by the complainant to the appellant. Although in the hut and watching the mahjong he had not accompanied the complainant when he got up from the mahjong table and, accompanied by the appellant, went into the complainant's cubicle. He and Lam Sum stayed outside still watching the other mahjong players. Then, he said, the two of them the complainant and appellant came out, and he and the appellant and Lam Sum left together. He said that the complainant then invited them to come again when they had time; but he did not hear him invite them to a meal as the appellant had alleged. As an incidental point this witness gave the date of the loan as the 4th March, 1966, whereas the appellant had said it was the 4th day of the 3rd Moon in 1966. The appellant, he said, told him he had received $600 from the complainant. It was correct that he had made a statement to the police. It was correct also that one of the complainant's nephews had been killed in a quarrel with the appellant; he himself was present at the time.

7. Lam Sum gave evidence corroborating the visit of the appellant, himself and Lam Loy Man to the complainant's hut and of finding the complainant and others, including Wong Lai Sze, playing mahjong there at the time. He confirmed also the evidence of the appellant and Lam Loy Man that the complainant left the mahjong table to take the appellant into the cubicle. But he said, as Lam Loy Man had also said in evidence, he and Lam Loy Man did not enter the cubicle. However he confirmed the evidence of the appellant that on leaving they were offered something to eat. In answer to Crown counsel, Mr. Soh, he said that the appellant afterwards told him that he had obtained $600 from the complainant.

8. Clearly, the appellant and his two witnesses, Lam Loy Man and Lam Sum, had made a substantial case that the complainant owed the appellant $1,000 and that the purpose of the visit was to obtain repayment. And, although these two witnesses failed to support the appellant's version that they had actually accompanied him into the cubicle with the complainant where the $600 was, as the appellant said, voluntarily handed over, nevertheless their evidence was in direct contradiction to the story given by the complainant in that they corroborate the appellant's version that the complainant was playing mahjong, not asleep in his cubicle as he the complainant had said, and that the atmosphere on their leaving the hut was one of amity.

9. The witness Wong Lai Sze agreed that he knew both the appellant and Lam Loy Man by sight. On the day in question at 2 p.m. he was busy in his shop, not playing mahjong in the complainant's hut which was behind his shop. He was unaware, he said, that mahjong was played in the complainant's hut. Sometime in the morning, he said, the complainant had told him someone had taken $800 from him. He was busy in his shop that afternoon and he did not know whether he had then seen the appellant and Lam Loy Man, although he had seen them from time to time in his shop. It was true that when he had time he played mahjong with the complainant. He then said he was doing his business and did not want to get into trouble, and on this note insisted he had not played mahjong that day.

10. The learned District Judge gave judgment forthwith, making only a passing reference to the appellant's version of money given him voluntarily in part-repayment of a loan. He considered that both Lam Loy Man and Lam Sum, up to a point, strongly corroborated the appellant's story; he thought it highly probable that they all did go for a swim that afternoon and afterwards to the complainant's hut. But, he said, he was satisfied no mahjong game was in progress and accepted Wong Lai Sze's evidence in that respect. He pointed to the categorical denials of Lam Loy Man and Lam Sum of the appellant's evidence that they had accompanied him into the cubicle. Finally, he said that the evidence as to what actually occurred when they entered the hut had been fabricated by the accused, Lam Loy Man and Lam Sun and that he was satisfied that the complainant's version as to what occurred in the cubicle was correct, wherefore he was satisfied that the appellant took the $800 by putting the complainant in fear and against his will, and was therefore guilty as charged.

11. It is clear that no finding was made either way whether the complainant owed the appellant $1,000, though it might be possible to treat the judge's passing reference thereto as indicating disbelief. The appeal is, therefore, brought on the basis that the learned judge failed to consider whether the appellant had a defence of bona fide claim of right, which, if believed, would have afforded a complete defence in accordance with the decision in R. v. Skivington (1967) 1 All E.R. 483. Crown counsel on the appeal, Mr. Lucas, concedes that, for this reason, if the judgment had been a summing-up to a jury, the conviction could not stand. But, he argues, the conviction nevertheless may stand because the appellant, according to the complainant, demanded $2,000; not the $1,000 alleged to be owed him. This we cannot accept; the appellant did not on any version 'steal' $2,000 but at most $800. Alternatively, Crown counsel argues that the appellant ought, by being given the benefit of a defence of bona fide claim of right, be convicted of the lesser offence of common assault; in the further alternative, there ought to be a new trial.

12. There are a number of features in the case which must weigh in the appellant's favour. His evidence of a loan was circumstantial and strongly corroborated by Lam Loy Man. Why should he, as the complainant said, demand a specific sum of $2,000 if he was there simply as a robber? Why also should he also leave several $10 notes behind? Why should there have been a discussion between the complainant, as he says, and the appellant as to the complainant having given money to one of his nephews, if the appellant was there simply as a robber? If Lam Loy Man and Lam Sum were parties to a fabricated story why should they stop short of corroborating the appellant's version of amicable repayment of part of the loan, the obvious point on which the defence rested? There was considerable consistency in the appellant's version of the case as a hole. There was a basis for the complainant bearing the appellant a grudge according to the appellant, corroborated as he was in this respect also. Clearly, also, these persons were known to one another. We have already referred to the complainant's delay in making a report of robbery, and to the fact that the learned judge disbelieved the complainant's version that the appellant was alone when he visited the hut. The evidence of the witness Wong Lai Sze, impresses one as that of a witness not wishing to get involved. Why should the appellant and his witnesses invent an unnecessary story of mahjong being played? There was no corroboration of the prosecution case, and, in fact, no reference by the detective corporal to the appellant's immediate reply on his arrest that he was owed $1,000 and had received $600 in part repayment. On the record there was a strong case forthe defence and a wholly uncorroborated case for the prosecution. In these circumstances the appellant, in our view, may justly complain that justice has not manifestly been seen to have been done. The suggestion for the Crown on the appeal is that, although the judgment or 'Reasons' would clearly have been open to attack - successful attack - if it had been in form of a summing-up to a jury, the District Court is to be presumed to avoid all such pitfalls as non-direction or misdirection. Surely it is a common feature in these courts, as elsewhere, that non-direction and misdirection does occur in jury trials. We see no basis for imputing infallibility in these respects to a tribunal which consists of judge alone. As was said in the Full Court case of R. v. Lam Kau (1962) H.K.L.R.234 at p.245, - on an appeal - "It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction". See also R. v. Sher Bahadur Khan (1961) H.K.L.R. 357, at pp.368-9 where the learned appellate judge said:

"As to the findings of fact by the magistrate that the appellant knew the entries to be false I appreciate to the full the position of judge of appeal reviewing a finding offact by a judge or magistrate of first instance who has seen the witnesses and has had an opportunity of considering their veracity. But the question remains whether the magistrate properly assessed the evidence ....."

Both cases were on appeal from the magistrate's court, but the principle is the same.

13. There is a distinction to be drawn between a civil case and a criminal case. In a civil case the onus of proving misdirection is on the appellant. Where it is doubtful whether there has been misdirection the benefit of the doubt, so to speak, may be given to the judge: see per Lord Greene, M.R. in Norman v. King (1946) 1 All E.R. 339, 341. In a criminal case the benefit of any real doubt must be given to the accused: Reg. v. Newbould (1962) 1 All E.R. 693, 694. Where what is alleged is non-direction rather than misdirection the same rule applies and in applying that rule this court has held that a judge need not expressly direct himself that the burden of proof is on the prosecution or that the standard of proof is proof beyond reasonable doubt, these being matters upon which experience shows that judges are unlikely to go wrong. On the other hand he must make it plain in his judgment that the risk of convicting a prisoner on the uncorroborated evidence of a co-accused was present to his mind: Chiu Nang-hong v. Public Prosecutor (1964) 1 W.J.R.1279. Without attempting to set any precise limits on what is required in a criminal case we would say that the closer a judgment comes to what would be expected in a summing-up the less danger is there that an appellate court will find itself compelled to interfere.

14. It would be wholly unsafe to allow the conviction in the present case to stand, and unfair to direct a new trial. Accordingly the appeal is allowed, the conviction quashed, and the appellant discharged.

16th February, 1970.

Representation:

M. Lee (C.C. Lee & Co.) assigned for appellant.

Lucas, Senior Crown Counsel for Crown/Respondent.