The Attorney General v. Li Nai-ho and Others
Read the full judgment text of CACC 753/1980 on BabelCite. This Court of Appeal judgment.
1. This is a case stated by Judge Daniell, upon the application of the Attorney General, under section 84 of the District Court Ordinance.
Cited by 4 cases
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CACC000753/1980
Coram: Roberts, C.J., McMullin, J.A. & Li, J.A. Date of Judgment: 20th October, 1980 ----------------- CASE STATED ----------------- Roberts, C.J.: Preliminary 1. This is a case stated by Judge Daniell, upon the application of the Attorney General, under section 84 of the District Court Ordinance. 2. There were originally eleven defendants. Two were called as Crown witnesses. The other nine were charged with conspiring to aid and abet other persons to land in Hong Kong without the permission of an immigration officer. 3. At the conclusion of the evidence for the Crown, the judge ruled that none of the nine defendants had a case to answer. 4. The Crown has not appealed in relation to two of those defendants. Of the seven defendants who are the subject of this case stated, five did not appear before us today. We earlier decided that it would not be proper to proceed in relation to them. We were not satisfied that adequate efforts had been made to effect service upon them of the notice of appeal and supporting documents. Preparation of Case Stated 5. The way in which a case stated should be presented to this court was dealt with in the Attorney General v. Leung Chi-kin(1). The general rule is that a case stated should be complete in itself and neither the judgment nor the record should be annexed to it. 6. This was an example of the unusual case in which the attachment of the record was necessary, since the finding which gave rise to the appeal was that the Judge had wrongly acceded to a submission of no case to answer. The validity of such a submission could only be assessed if a record of the evidence were attached. However, the annexure of the record in this appeal should not be thought to derogate from the general rule that the records should not be attached to a case stated. Submission of No Case to Answer 7. The proper approach by a court to a submission of no case to answer was set out in the following Practice Direction, issued by Lord Parker, C.J. in 1962, to be found in 1962 1 W.L.R. p.227:-
8. In Attorney General v. Yau ka-Ping(2), Huggins, J. said -
9. At page 81 of the same report, Pickering, J. added -
10. At the conclusion of the Crown case in the court below, the judge examined the evidence of the two main Crown witnesses, HUI Chui Chuk (PW1) and LI Chan (PW15) and reached a finding as to their credibility. He described HUI Chui Chuk as "a confused and hopelessly unreliable witness" and LI Chan as "not merely confused but a deliberate liar, on whose evidence it would be wholly unsafe to rely." 11. In so doing, the trial judge was pursuing the course which Mr. Justice Pickering said should not be followed. 12. We interpret the second limb of Lord Parker's Practice Direction as meaning that a court should accept a submission of no case to answer when the whole of the evidence, taken together, is so confused or discredited as to make it unsafe for a tribunal to convict upon it. It does not mean that it is right for the court to dissect the evidence of each individual witness and to reach, at that stage, a conclusion as to the credibility of that witness, based upon inconsistencies which may occur within his evidence. See R. v. Barker(3) in which the Court of Appeal (Criminal Division) stated that it was not the task of a judge to weigh the evidence, decide who was telling the truth and stop the case merely because he thought a witness was lying; to do that would be to usurp the function of the jury. 13. The judge should have done no more than consider, at the close of the Crown case, whether the evidence of the prosecution witnesses, as a whole, contained material upon which a jury, properly directed, might have convicted the defendants. Sixth Defendant 14. With regard to CHEUNG Shing (D6), counsel for the Crown drew our attention to evidence in the record which, if accepted, would amount to sufficient material on which a jury could reasonably convict. Counsel for the respondents himself conceded that, if we found the judge's approach was wrong, there was evidence which could reasonably have entitled a jury to convict. 15. We are satisfied that the trial judge was wrong in ruling that D6 had no case to answer. Tenth Defendant 16. CHAN Shun-cheung (D10) was a ship-repairer. There is evidence from one of the prosecution witnesses that he undertook the repairs to the "Shing Cheong", the vessel which was used to fetch refugees from Vietnam. 17. D10 made a statement to the police, which was admitted by the judge as a voluntary one. When a statement is so admitted, it becomes a matter for the jury to decide what weight should be given to that statement. The judge, therefore, should not, at the stage of a submission of no case to answer, have decided what weight he should attach to the statement which he had previously admitted in evidence. That was a jury matter which he should have left until the end of the trial when he should have considered it in his capacity of jury. 18. The contents of this statement, however, do not seem to us to be sufficient to leave to a jury. D.10 was engaged, at a negotiated price of $80,000, to conduct extensive repairs to the "Shing Cheung". According to this statement, his task was to make it seaworthy. There is nothing in his statement to suggest that at that stage he had any knowledge of the use to which the vessel was to be put or the destination to which it was to go. 19. According to his statement, D1 and D8 spoke to him before the repairs to the vessel had been finished. They still owed him $30,000. out of the total price of $80,000 which had been agreed. They asked him to join them in a partnership. D10 asked them what the business was, which suggests that he did not know this previously. D1 informed him that it was to go to Vietnam in the boat to convey some refugees, to which D10 replied that he did not want to take part. D8 then said that he owed D10 $30,000, but would give him double if they succeeded in conveying the refugees. 20. Only at that stage, according to D10, did he learn that the boat was to go to Vietnam to collect refugees. 21. There is nothing in his statement to show that he knew what was to happen to the refugees after they had been collected from Vietnam, or that he took any part whatsoever in the expedition or that he did anything more to further its aims or purposes. 22. In our view, no reasonable jury, properly directed, could have convicted D10 on the basis of that statement, which is the sole evidence of any significance against him. 23. We therefore conclude that the judge reached the correct conclusion in relation to D10, even though he reached it by the wrong road. 24. We now address ourselves to the particular questions that were put to us in the case stated. In answering them, we are of course limiting ourselves to D6 and D10.
Representation: Chandler for the Crown/Appellant Sparrow (Walter Woo & Co. ) for R4 & R7 R1, R2, R3, R5, & R6 not appearing (1) (1974) H.K.L.R. 269. (2) (1979) H.K.L.R. 76 at p.78. (3) The Times, November 13, 1975 |
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