Lo Wing and Others v. The Queen
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CACC000747/1979
----------------- Coram: Roberts, C.J. Leonard & Li, JJ. A. Date of Judgment: 3 May 1980 ----------------- JUDGMENT ----------------- Leonard, J. A.: Introduction 1. Throughout this judgment we refer to each appellant by the number assigned to him as defendant in the court below. 2. D.1, D.3 and D.4 appealed against their convictions and sentences on the first charge; D.2 against conviction and sentence on the second charge; D.6, having pleaded guilty to the first charge, appealed against his sentence on the first charge and against his conviction and sentence on the third charge. D.5, D.7, D.8, D.9, D.10 and D.11, have pleaded guilty to the second charge, all appealed against their sentences. 3. On the 13th November 1979 the appeals of D.5, D.7, D.8, D.9 and D.10 were adjourned pending the determination of the appeals against conviction of D.1, D.2, D.3, D.4, and D.6. The appeal against sentence of D.11 was dealt with on 13th November and, for reasons then given, we allowed his appeal, reducing his sentence to such length as would secure his release on that day. 4. D.2 was acquitted by the trial judge on the first charge, on the ground that he might not have known of the plan that the Huey Fong would enter Hong Kong waters. He was nevertheless convicted on the second charge. Mr. Hidden attacked this conviction on the basis of a finding by the trial judge that it had not been proved that D.2 knew the refugees were ever to enter Hong Kong. He submitted that, in that case no offence against the laws of Hong Kong could have been in his contemplation. Mr. Duncan for the Crown conceded that he could find no answer to that submission. We therefore allowed D.2's appeal against conviction and he was discharged. 5. This judgment concerns itself solely with the appeals against conviction of D.1, D.3, D.4 and D.5. Early preparations 6. In October 1978 LO Wing (D.1) arrived in Hong Kong from Vietnam. He lived in a hotel in Kowloon, His son, Lo Kwok-wah (D.2) came to Hong Kong from Vietnam in 1972. CHENG Yat-ying (D.3) was an electrical contractor, a Hong Kong resident who used to do business in Vietnam. Towards the end of October, D.1 met KWOK Wah-leung (Kwok) and asked him whether he could arrange for a ship to bring refugees from Vietnam to Hong Kong for reward. 7. Kwok flew to Taiwan, where he contacted HUNG Yan-chun (Hung), who was named in the charges as a co-conspirator. Hung introduced Kwok to LEE Teay-shoun (D.5), Assistant Chief Engineer of a ship called the Huey Fong. Kwok and Hung discussed the chartering of the Huey Fong, and a suitable Venue for the picking up of refugees. A venue some 60 miles out from Vietnam was agreed upon and code-named "Samba". 8. Thereafter D.1, D.2 and D.3, in Hong Kong, were in contact by cable with Kwong Shuk (also named in the conspiracy charge) and SIT Kwok-luen (D.4) who were in Vietnam. Cables which were in a simple code and which were put in evidence, show that matters under discussion included the amount of gold each refugee should be required to pay and the number of them that could be carried. This was agreed at 2,500. About the 25th November 1978 Kwok left Hong Kong, purportedly for Bangkok but in fact for Taiwan. He took with him signals to identify the ship on its arrival at Samba but no note of instructions from D.3. Kwok returned to Hong Kong from Taiwan before the end of November, and explained to D.1, D.2 and D.3 that there were difficulties in Bangkok (where he had not yet been). 9. On the 4th December 1978 Kwok left for Bangkok, where he held a meeting with Hung, D.5, and the Captain (D.6), the Chief Engineer (D.7) and the Chief Radio Operator (D.8) of the Huey Fong Sailing of the Huey Fong 10. The ship sailed from Bangkok, with Kwok on board, on the 8th December, At sea, the more junior ships officers (D.9, D.10 and D.11) were informed by D.6 of the purpose of the voyage and promised that they would share in a large quantity of gold for the carrying of this human cargo. 11. When the Huey Fong arrived at Samba, on 11th December the expected small boats carrying refugees, did not arrive. Therefore, Kwok, through D.8, cabled his employee, Miss Yeung, in Bangkok, telling her to inform D.1 of what had happened. She did so and D.1 cabled Kwong Shuk (Kwong). On 13th December, after the Huey Fong had moved closer to the coast, a boast bearing D.4 arrived. D.6 was persuaded to take the Huey Fong to shore, in return for a promise to pay him and the crew an extra 300 taels of gold in addition to the 1,200 taels already promised to them. 12. Between 15th and 18th December 3,318 refugees were taken aboard and on the morning of 18th December, the Huey Fong sailed for Hong Kong. 13. The number of refugees placed on board the vessel far exceeded the number which the Captain had agreed to carry. After the first 2,000 had embarked, he (D.6) said that he would carry no more, unless the refugees were instructed to tell the Hong Kong authorities, on arrival, that they had been rescued at sea by the Huey Fong from sinking boats. These instructions were given to the refugees by the officers of the Huey Fong, while it was en route to Hong Kong. 14. On the 18th December 1978 the Marine Department received the following cable from the Huey Fong -
It will be noted that the number given was "more than 2000" and that this number was not broken down into groups. The actual number on board was 3,318. In a further cable, following enquiry from the Marine Department, the number given was "about 2,700" divided into "old people 700 adults 1,000 and children 1,000." Entry into Hong Kong was refused because Hong Kong was not the vessel's next scheduled port of call, that being Kaohsiung. 15. The Huey Fong arrived off Po Toi Island on 23rd December and anchored 500 yards outside Hong Kong waters. Here it remained until 19th January 1979 when it sailed in and anchored. 16. When first questioned the Captain and members of the crew maintained the story told in the cable quoted above, as did Kwok. However, police enquiries soon revealed that they were telling lies and further investigations revealed the coded cables between D.1 and Vietnam and false entries in the ship's log and the radio log. The conspiracies 17. There can be no doubt that conspiracies of the kind described in the first and second charges were kind described in the first established. D.6 pleaded guilty to the first charge and D.5 and D.7 - 11 pleaded guilty to the second charge. 18. The only substantial evidence against D.1, D.2 and D.3 was that of Kwok, supported by such inferences as might arise from the fact that it was agreed by them that 2,500 refugees should be carried. The only evidence against D.4 was that of Kwok supported by such inferences as might be drawn from his presence on the Huey Fong. 19. The first charge, of which D.1, d.3 and D.4 were found guilty, was drawn in narrow terms. It alleged a conspiracy to defraud officers of the Hong Kong Government by the making of false statements and representations and other dishonest means as to the circumstances in and under which (the refugees) were carried on board with the intention thereby that (the refugees) might be permitted to stay in Hong Kong. D.2 was found not guilty of that charge but guilty of the conspiracy alleged in the second charge i.e. "to carry on a ship an excess number of passengers and to make false statements and representations contrary to the Laws of Hongkong." 20. The Crown's case was that the Judge should consider four questions:-
21. The facts detailed above show that there was a substantial change of plans after the Huey Fong sailed from Bangkok on 8th December, The important question which the Judge had to decide therefore, was whether D.1, D.2 and D.3 agreed to a plan which involved deceit of the nature alleged in the charge? Or did they agree to something which did not involve such deceit? Evidence of Kwok 22. As has been indicated, Kwok's evidence is of paramount importance. The main argument advanced by counsel for the appellants was that the judge was wrong in accepting Kwok's evidence and that without it there was insufficient evidence to sustain the charges against D,1, 2, and D.3. 23. Kwok was (apart from the cables passing between D.4 and D.4's father in Bangkok on the one hand and D.1, D.2 and D.3 in Hong Kong on the other) the only evidential link between the named conspirators. His evidence can be summarized as follows -
Assessment of Kwok 24. These above paragraphs contain contradictions and inherent improbabilities. The general "feel" of the record, coupled with them, causes us to have gravest doubt as to the existence of the note. Indeed we have come to consider that, on the balance of probabilities, it did not exist. Without the note, Kwok's evidence might still have involved D.1 but not D.2 to D.11. 25. There are other reasons for doubting Kwok's veracity. He had been granted immunity provided he told the truth and had himself sought such immunity. To him "truth" appears to have been synonymous with adherence to a statement he had made involving D.1, D.2, D.3 and D.4 in the conspiracy charged. He makes several references to it. 26. There were other matters, revealed by the record, which stigmatise him as an unsatisfactory witness. Not the least of these was his refusal to answer questions in cross-examination and his tendency to answer awkward questions with questions. It may well have been naive of counsel to permit him to do so, but it was a course of conduct which enabled him somewhat transparently, to evade difficulties. Many of these shortcomings were recognised by the trial judge, who warned himself on several occasions of the dangers of convicting on Kwok's evidence. Undoubtedly the conspiracy existed and all who participated in the sending of the cable of 18th December, or who told the lies agreed on arrival in Hong Kong were guilty of it. Those who pleased guilty undoubtedly were and in this respect we do not distinguish between the first and second charges since both involved deceit. Conclusion 27. There were three possible ways of getting the refugees ashore in Hong Kong which were canvassed at different times by various actors in the events -
(a) is what Hung believed to be the plan, under and until Kwok told him on 4th December that (c) was to be adopted. (b) is what D.1, D.2, D.3 and D.4 thought was to be adopted, according to Kwok, until the meeting at which the note was drawn up by D.3. (c) is the scheme eventually adopted and explained to the ship's officers on/8th December 28. If the note goes, as we think it must, it seems to us to follow that we cannot accept that D.1, D.2, D.3 and D.4 must have known of plan (c) before Kwok left Hong Kong. Without this note, they remain implicated in a conspiracy to bring the refugees to Hong Kong; but they do not remain part of the conspiracy alleged in the charges, because those are based on deceit, not on bribery. 29. Therefore these four defendants must be acquitted of charges 1 and 2 unless there is other evidence which compels the inference that they must have foreseen that the refugees could only be landed in Hong Kong if lies were told on their arrival. 30. So far as D.1, D.2 and D.3 are concerned, there was no such evidence, and they must therefore be acquitted. Case against D.4 31. D.4 was in a different position. He joined the expedition only in Vietnam and accompanied the refugees to Hong Kong. Does the evidence establish that he joined the conspiracy alleged? 32. We find the inference that D.4 knew, by the 18th December at the latest, of the intention of D.6 that the Huey Fong would sail into Hong Kong and that lies would be told to the Hong Kong authorities, irresistible. 33. D.4 was an active participant and organizer in the overall agreement to carry refugees from Vietnam and unquestionably knew their ultimate destination was Hong Kong. He could not but have become aware in the course of the journey from Vietnam of the intention to deceive. Even if it be accepted as unproven that he drafted the vital cables from the ship to the Marine Department, there can be no doubt but that he knew of the intention to deceive and participated in it. 34. It appears from his statements made to the police that he is an educated and intelligent man, a computer programme analyst with a knowledge of both Chinese and English. His wife was one of the refugees on board. He was a man of property and able to bring with him 600 taels of gold - his own savings. His statement establishes that he was one of the organisers, of the overall agreement and that he set out to sea from Vietnam, in order to contact with the Huey Fong and negotiated with D.6 in an attempt to persuade him to bring the Huey alongside in Vietnam. He returned form the Huey Fong to Saigon and picked up 1,500 taels of gold for the payment to the Captain and crew. He, his wife and two young sisters stayed in the Captain's quarters until the Huey Fong reached Hong Kong and his food was supplied by the Captain. He was at the heart of the conspiracy and must have taken part in any and every change of plan. 35. Two answers given by him in the course of his statement taken together clearly indicate participation in the plan to use the sort of deceit actually used. The first reads :
36. The second answer was given when he was describing events which took place while the vessel was immediately outside Hong Kong waters at Po Toi. Having described the setting up of a committee to organise the refugees he said that the committee
37. All these facts drive us to the conclusion that he was a participant in the plan to use the sort of deceit actually used and that he was rightly convicted. 38. D.6, HSJ Wen-hsin, the Captain of the Huey Fong appeals against his conviction on the third charge, in which he is alleged to have acted contrary to section 34(2) of the Merchant Shipping Ordinance (Cap. 281). The Particulars alleged that he
Section 34 reads:
It was conceded at the trial by the Crown that section 34(1) has no application to this case, though we wonder why. The issue before us was whether D.6 was rightly convicted under section 34(2), which makes it an offence to carry passengers on a "passenger ship" unless the provisions of Part VI, which require a passenger ship to be surveyed, are complied with. 39. It was not disputed that the Huey Fong was a freighter and had left Bangkok laden with cargo. Part VI of the Ordinance, in which section 34 is to be found, is headed "Survey of Passenger And Other Ships And Certificates Thereof". In section 23 "Passenger ship" is defined for the purposes of Part VI as:
40. Mr. Stone contended that the sense of this definition required the insertion of some such word as "habitually" or "usually" before the word "carries". We see no reason to read the section in this way, since it reads entirely sensibly without any such addition. Therefore we are of the opinion that, when the Huey Fong was within the waters of the Colony carrying over 3,300 passengers it was a passenger ship for the purposes of Part VI. 41. The difficulty faced by the Crown arises rather from the introductory words of subsection (2):
42. Section 24 requires every passenger ship which carries more than 12 passengers to be surveyed once at least in each year. The Huey Fong at the time of its arrival had not been so surveyed. Nor did it fall within any of the classes of vessel exempted from the operation of section 24(1). 43. Section 25 prohibits passenger ships which carry more than 12 passengers from clearing outwards or proceeding on any voyage from the Colony unless the master has certificates as to survey "in force and applicable to the voyage on which the ship is about to proceed". The section authorises the detention of any passenger ship attempting to go to sea until such certificates are produced. 44. There is however no provision in Part VI which requires incoming passenger ships to hold a passenger certificate. By section 28 the owner, agent or master of every passenger ship is obliged to cause it to be surveyed. The surveyor is thereupon obliged, if satisfied that it can properly be done, to complete a declaration of survey. The section lays down what the declaration of survey should state and requires that such a declaration:
By subsection 4 -
45. Section 31 deals with the period for which a certificate shall be held to be in force. There is a proviso to section 31 which reads as follows -
46. The only provision in Part VI which requires a passenger ship to be surveyed and to have a passenger certificate is section 25, which prevents a passengers ship clearing outwards or proceeding on any voyage from the Colony without both. That being so, the Huey Fong was not required to have a passenger certificate, and the third charge must therefore fail and the appeal of D.6 against conviction on that charge must succeed. 47. It remains for us to hear representations by counsel as to the sentences imposed on D.4 and D.6 on the first charge and on D.5, D.7, D.8, D.9 and D.10 on the second charge. Representation: Mr. Hidden, Q.C. and Mr. John Bleach (Samuel Soo & Co.) for 7th, 8th and 10th appellants. Mr. Mohan Bharwaney (Director of Legal Aid) assigned for 9th appellant. Mr. William Stone (Johnson, Stokes & Master) for 1st to 5th and 11th appellants. Mr. P.N. Duncan counsel for Crown/respondent.
Coram: Roberts, C.J., Leonard & Li, JJ.A. Date of Judgment: 16th May, 1980. ----------------- JUDGMENT ----------------- Pickering; J.: This appeal has been referred to the Full Court by a single judge under the provisions of s.118(1)(d) of the Magistrates Ordinance. 2. On the afternoon of the 10th September, 1970 the appellant, Madam CHUNG Shuk-kuen, was the only passenger in a private car driven by a Mr. MA Kwai-pak. Upon the termination of their mutual journey, police officers witnessed an event which led to Mr. Ma being charged with the offences of driving a private car for hire or reward and driving a private car without third party insurance. 3. Upon Mr. Ma's trial at Western Magistracy on these charges, the appellant was the first witness for the prosecution and an application that she be treated as a hostile witness was acceded to by the learned magistrate who, upon the conclusion of her evidence, intimated to her that it was his intention to call upon her to show cause under s.100(b) of the Magistrates Ordinance as to why she should not be dealt with for having wilfully given false testimony. At this stage the learned magistrate released the witness upon her entering into a recognizance in the sum of $200 to appear at 2.30 p.m. on the next day. In the event, the appellant was not so called upon under s.100(b) of the Magistrates Ordinance until the 26th of October when she applied for an adjournment in order to engage counsel. The adjournment was granted and when the matter was eventually dealt with on the 11th November, 1970, the appellant was represented by Miss Fung of counsel. The learned magistrate found that the appellant had in fact willully given false testimony and fined her $350. It is against that finding and sentence that the appellant now appeals. 4. Upon the hearing of the appeal we found it necessary to complain that the additional grounds of appeal had been filed with the court only upon the previous evening and had come into the hands of the members of the court only upon the morning of the appeal. Whilst counsel for the appellant assumed sole responsibility for this state of affairs and apologised to the court for having set aside the papers in July without initiating any action to have the Notice of additional grounds of appeal filed, we think it right to allude to this matter in order that counsel and solicitors in general may be aware - if they are not already aware - that grounds of appeal which reach the members of the court at the very last moment are inevitably of less value to the court, to counsel and to his clients, both professional and lay, than are grounds which have been filed timeously and to which the members of the court have had an opportunity of applying their minds before the hearing. 5. The evidence of the appellant in the court below was to the effect that upon leaving Sandy Bay Hospital in the rain on the afternoon of the 10th September, 1970, she was unable to find a bus or a taxi and that as she approached Victoria Road, Mr. Ma, with whom she had some slight acquaintance, called to her from a private car. In reply to his query as to why she was standing there, she told him that she was waiting for a vehicle in order to get back to Wah Fu Estate, whereupon he answered that he was going to Cadogan Street in Western District and that, if she wished, she could get into his car and he would take her to Western District since it was along his route. Since it was raining she got into Mr. Ma's car with the intention, after having been driven in the opposite direction to Wah Fu Estate, of transferring in Western District to another vehicle bound for Wah Fu Estate. 6. The appellant's evidence continued that on alighting from the car she felt somewhat embarrassed and gave a ten dollar note to Mr. Ma who refused to accept it, whereupon she returned the note to her purse and, still feeling embarrassed, threw a dollar coin through the window of the car on to the rear seat, saying, "Mr. Ma, I stand you a cup of coffee." According to the appellant, Mr. Ma picked up the coin and saying, "Mrs. Lipp, take back this coin", threw it back to her, whereupon it fell to the ground and she walked away without recovering it. We would add in parenthesis that Mrs. Lipp is the name by which the appellant was apparently known to Mr. Ma, that being the surname of her husband. 7. At this stage of the proceedings the prosecuting Inspector asked that the witness be declared hostile and the court adjourned. Upon the resumed hearing, it was put to the witness that at about 4 p.m. on the 10th September, 1970, at the junction of Cadogan and Belcher Streets, after she had alighted from the car in question, she was stopped by a police inspector who asked her whether she had given any money to the driver of the car, Mr. Ma. The appellant's reply to this question, according to her, was that she had given Mr. Ma a dollar which he would not accept. This item of evidence was reiterated time and again by the witness. It differed, however, from the interpelated evidence of Inspector LEUNG Tat-yan, the Inspector in question, who said that the appellant's answer to his question about the passing of money was "I have given him one dollar coin." Upon being asked whether anything else had been said, the Inspector replied "That was the exact answer as far as I can remember." The witness was thereupon ruled "adverse". 8. After further evidence on the part of the appellant, during the course of which she repeatedly said that Mr. Ma had refused to accept the dollar coin, her evidence concluded and it was at this stage that the learned magistrate intimated his intention of calling upon her to show cause under s.100(b) of the Magistrates Ordinance as to why she should not be dealt with for having wilfully given false testimony. 9. The evidence of Inspector Leung was the only evidence, apart from that of the appellant, as to what passed between them in the conversation regarding the transfer of money from the appellant to Mr. Ma. Mr. Jackson-Lipkin, for the appellant, argued that the learned magistrate ought not to have found her guilty of wilfully having given false testimony solely by reason of the fact that her testimony was contrary to that of a single police officer; the more so since the appellant's testimony was not a flat denial of what the police officer alleged that she had said to him in the street but merely a qualification thereof, in that whilst she agreed that she had told him that she had given a one dollar coin to Mr. Ma, she had also added that she had told the inspector that the latter had refused to accept it. 10. Counsel further urged upon us that the power given by s.100 of the Magistrates Ordinance was one which should be exercised rarely and with circumspection and ought not to have been exercised in respect of a straight dispute between the appellant and a police officer as to the nature and content of an oral statement allegedly made to the police officer; and further, that the learned magistrate ought not to have found the appellant wilfully to have given false testimony without corroborative evidence. 11. Our initial reaction to the evidence of the Inspector in regard to the appellant's reply to him in the street is that that evidence is in itself qualified evidence, for, having testified that the appellant had told him that she gave Mr. Ma a dollar coin, the Inspector, upon being asked whether anything else was said, replied "That was the exact answer 'as far as I can remember'." Such a reply was by no means unreasonable for few honest witnesses would testify categorically as to the precise words of a conversation one month after that conversation took place. We can, however, only regard such qualified evidence as a weak foundation for bringing into play the powers conferred by s.100(b) of the Magistrates Ordinance and an even weaker base for a finding beyond reasonable doubt that the appellant's evidence in court to the effect that she had added that Mr. Ma had refused to take the dollar amounted to the wilful giving of false testimony. 12. Section 100 of the Magistrates Ordinance is an unusual provision in that under it the magistrate is both the accuser and the judge and we are indebted to Mr. Duckett, who appeared for the Cwown, for his research into the history of this section which first saw the light of day in s.10 of Ordinance No.6 of 1862. That section appears to have been original since no source is traceable either in the United Kingdom or in any of the provisions of the Indian Penal Code. An amendment to the section, unimportant for our purposes, was made by Ordinance No. 16 of 1875 and the section reappeared as s.91 of the Magistrates Ordinance of 1890 (No. 10 of 1890) in a form closer than thitherto to today's s.100 of the Magistrates Ordinance. Section 94(2) of the Magistrates Ordinance of 1932 (No. 41 of 1932) took the form of the present s.100, including the necessity of offering a person against whom the weight of the section was to be employed, the opportunity of an adjournment. In 1949 the maximum penalty under the section, which had previously been a fine of $50, was increased to one of $500. 13. It is apparent, therefore, that the power conferred by the existing s.100 of the Magistrates Ordinance has existed in the Colony for more than a century. The fact that this appears to be the first case in which its application has fallen for consideration by the Full Court is possibly mute evidence of the caution and circumspection with which, over that lengthy period of time, the section has been utilized and since we are going to speak of circumspection, it behoves us ourselves to employ circumspection in seeking to lay down, upon the flimsy basis of the only case involving s.100 known to have come before the Full Court, lines of guidance for magistrates in regard to the utilization of that section. In saying that the power is one which ought to be used with circumspection we are, we believe, preaching to the converted. The mere fact of the absence of any authority in this court regarding the interpretation or employment of the section suggests that the power is not one to which frequent resort has been made. In endorsing that cautious approach to the power conferred by the section we would not, however, wish to be construed as decrying its use in appropriate cases. Instances arise where a witness confesses in open court, either voluntarily or because he is compelled to the admission by cross-examination, that his earlier testimony has been wilfully false and such a circumstance would be an obvious case for the utilization of the section unless the implications of the witness's conduct were so grave as to cause the magistrate to consider that the proper procedure was to refer the papers to the Attorney General with a view to a prosecution under the Perjury Ordinance. Moreover, the circumstance in which a witness so incriminates himself as to walk into the open mouth of the section is not the only circumstance in which magistrates may find it appropriate to avail themselves of the section. Where very grave suspicion exists magistrates will always be entitled to invite a witness to show cause in accordance with the terms of the section, always bearing in mind that the maximum penalty available under the section is such that, in any particular case, a charge under the Perjury Ordinance may be the only course capable of leading, in the event of conviction, to an appropriate penalty. 14. It will be apparent, however, and we think that it is and has been apparent to magistrates, that the section is not one to be invoked lightly. The aspect to which we have referred, namely, that the section places the magistrate in the position both of accuser and judge, is one which may well be thought to render the employment of the section invidious except in the fairly obvious case. 15. In the present instance the learned magistrate was faced with an assertion by a Police Inspector which was qualified by the phrase "as far as I can remember". In opposition to this he had the evidence of the appellant, which was not a blank denial that money had passed between her and Mr. Ma, but a qualification of the Inspector's evidence in that whereas the Inspector had said that the appellant had told him simply that she had given a dollar coin to Mr. Ma, her evidence was that she told the Inspector that she had given Mr. Ma a dollar coin but that he had refused to accept it. This, as we see it, was the extent of the conflict in the evidence; for the conversation between the Inspector and the appellant was not overheard by anybody else, and the P.C. who was with the Inspector at the time was unable to assist the Court in this respect. 16. A conflict of evidence between a witness (more usually a defence witness) and a police officer as to what was said on a particular occasion is a daily or hourly occurence in the courts of the Colony and there is, we apprehend, some danger that if, where such a conflict arises, s.100 is lightly brought into play, witnesses will come to court not only without self-confidence but in some trepidation. That is not a situation which should be allowed to obtain, and it were better that the section be repealed rather than that witnesses should so feel inhibited. We do not suggest that the situation to which we have referred does, in fact, obtain but we merely point out a possible danger of a too ready application of the section under consideration. 17. We would not wish to be thought as recommending the repeal of the section. It exists; and within its limits and the limits which we consider magistrates should, and broadly do, impose upon their resort to the section, it fulfils a useful function. 18. Inasmuch as one ground of appeal was that the learned magistrate ought not to have found the appellant wilfully to have given false testimony without corroborative evidence, it may be useful to explore the issue of whether or not corroboration under the section is required. At Common Law there could be no conviction for perjury without corroboration and, when perjury was made a statutory offence in England under the Perjury Act 1911, s.13 of that Act also required corroboration, as does s.16 of our own Perjury Ordinance, Cap. 212 which Ordinance provides that the offence of perjury can be committed in connection with matters other than judicial proceedings (see s.6 to 10). Section 100 of the Magistrates Ordinance, however, contains no express reference to perjury and s.16 of the Perjury Ordinance cannot be imported into the former section so as to render corroboration necessary as a matter of law. That that is the deliberate intention of the legislature seems to be implicit from s.19(2) of the Perjury Ordinance which provides:
19. If, however, corroboration is not required as a matter of law under s.100 of the Magistrates Ordinance, is it competent for this Court to lay down that it is required as a matter of practice? 20. Corroboration is sometimes the creature of statute - as under the Perjury Act to which we have referred, in charges concerning the procuration of females for sexual purposes (Sexual Offences Act 1956 ss. 2, 3, 4, 22 and 23) and driving a motor vehicle in excess of a speed limit (Road Traffic Act 1960 s.4). In other instances, however, corroboration is required merely as a matter of practice, and although we use the term 'merely' that is a relative term for in the case of accomplices and sexual offences at least, if there is no warning of the danger of acting on uncorroborated evidence, any conviction will be set aside on appeal unless the proviso can be applied. We have considered whether or not this court should lay down as a rule of practice that corroboration should be required under s.100 of the Magistrates Ordinance before the conclusion is reached that a witness has wilfully given false testimony, but we consider that, especially in the light of the fact that this is the first occasion upon which the Full Court has had occasion to consider that section, we should be slow to lay down any such direction - a direction which would, as Mr. Duckett submitted, amount virtually to re-writing s.100. 21. We would not, however, wish to leave the matter there. The very facts of this case themselves highlight at least the desirability of a measure of corroboration where the conflict of evidence is a verbal conflict between one witness and another, and we consider that in such cases corroboration, though not essential, is highly desirable so that a magistrate employing the section should remind himself of this whilst not being debarred, provided he is convinced of the truth of the one side and of the falsity of the other, from making a finding as to that falsity in the absence of corroboration. 22. In the circumstances of the present case we think that the learned magistrate acted prematurely in warning the first witness for the prosecution, at the conclusion of her evidence, that he proposed to call upon her to show cause under s.100, and we consider also that the conclusion to which he came, on the basis of a qualified allegation by the inspector which was in turn not flatly contradicted but merely qualified by the evidence of the appellant, was unsafe. We leave for further consideration the question how far the learned magistrate was entitled to have relied upon evidence given in the case between the release of the appellant upon a bond and the time at which she was actually called upon to show cause. The appeal is allowed, the conviction quashed and the fine of $350 set aside. Representation: |