Pau Wing Shing v. The Queen
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CACC000759/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 759 OF 1969 -----------------
Coram: Rigby, S.P.J., Briggs, J. and Huggins, J. Date of Judgment: 22 December 1969 ----------------- JUDGMENT ----------------- Rigby, S.P.J.: 1. We allowed this appeal, quashing the conviction and setting aside the sentence and intimated that we would give our reasons for so doing in writing. We now do so. 2. The appellant, a young man age 22, was convicted in the Magistrate's court of the charge preferred against him of corruptly soliciting a bribe. Upon conviction he was sentenced to 12 months imprisonment. He appealed against both conviction and sentence. 3. The appellant, at the material time, was employed as a Resettlement Officer and was concerned in dealing with matters relating to the Chai Wan Resettlement Estate. In July, 1968, a man called Mak, then living at the Resettlement Estate, wished to transfer the premises occupied by him to another man called Lam. In August, Lam wrote a letter to the Resettlement authorities asking for the room to be transferred to him. There appears to have been some delay in dealing with the application and on the 14th October Mak went to see the appellant at the offices of the Resettlement Estate. He met the appellant at the entrance to the office and, according to Mak, the appellant asked him to go for a walk with him. During the course of the walk, the appellant point-blank asked Mak for the sum of $300 as "tea money". There was some bargaining as to the amount to be paid and the appellant finally agreed to accept $250. The money was clearly intended to be a bribe as a condition for the appellant expediting the arrangements for the transfer of the room from Mak to Lam. Mak went home and mentioned the matter to Lam. Next day Lam went to see the appellant and, according to Lam's evidence, he asked him if he could reduce the quantum of the payment demanded. After some discussion it was apparently agreed that the sum of $200 would be paid. Lam went home and spoke to Mak. On the following day they both went to the Resettlement Estate office and signed the documents relating to the transfer. They were then taken in by the appellant to see Mr. Leung who was a more senior officer. Mr. Leung asked both Mak and Lam whether they had paid over any money to any official in connection with the transfer and they both answered him in the negative. However, two days later they thought better of it and went back and told Mr. Leung that the appellant had in fact asked them for tea money. The appellant was called in to Mr. Leung's office and Mr. Leung told him of the allegation made. The appellant at once denied the charge. The allegation made by Mak and Lam had apparently been reduced to writing by Mr. Leung and he invited them to sign the statement, but they both refused to do so. That was, in substance, the case for the prosecution. The appellant gave evidence categorically denying the allegation made against him. 4. There was undoubtedly some evidence, although somewhat thin, which, if believed, would support a conviction of the offence charged. However, certain passages in the Magistrate's judgment have caused us considerable concern. In the course of his judgment he said.
Later on he went on to say
5. The clear impression created by those passages is that the learned magistrate felt enjoined to believe one version of the evidence or the other and that having rejected the evidence of the appellant he accepted the testimony of Mak and Lam. Quite clearly that is not the proper way to approach a criminal charge. In the Malayan case of Moh'd Yatim Bin Abu Baker v. Public Prosecutor(1), Spenser-Wilkinson, J. said "It is not the correct approach to a decision in a criminal case to approach the question of the guilt or innocence of the accused on the basis of deciding which of two stories the Court should believe." That case, although only of persuasive and not binding authority, was applied by the Full Court in the case of Reg. v. Tsui Sheung and Others(2). 6. But the matter does not rest there. If the evidence of Mak and Lam is to be believed, it is apparent that in bargaining and subsequently agreeing to make a payment to the appellant they made themselves accomplices to such an unlawful agreement. It is elementary law that the evidence of one accomplice cannot corroborate the testimony of a fellow accomplice; yet it is apparent that the Magistrate has accepted the evidence of Lam as corroborating that of Mak and has expressly referred to it as corroborative evidence. Mr. Winter, Crown Counsel, has conceded that on this ground he finds himself unable to support the conviction. 7. Before parting from this case we regret that we should find it necessary to refer to the deplorably careless way in which the record of the court has been kept by the Magistrate in this case. It is, or should be common knowledge that before a witness gives evidence he should be sworn, or affirmed, according to what his religious convictions, if any, may be, and the record should show that this has been done. In this case it is not apparent from the record whether the witness Lam, an important prosecution witness, was either sworn or affirmed; no entry has been made. Similarly, when the case for the prosecution is concluded, the normal and required practice is that there should be some entry on the record to that effect. At the close of the case for the prosecution, the accused person should be informed of his rights as to whether or not he wishes to give sworn or unsworn testimony, or to say nothing. In this case there is no entry on the record to show that the case for the prosecution had been concluded. The record shows that the appellant simply gave evidence; whether or not he was sworn or affirmed is not shown upon the record. Mr. Winter, Crown Counsel sought to cure the defect as to Lam's testimony by putting in an affidavit under Section 118(1)(a) of the Magistrate's Ordinance, the effect of which was to show that Lam gave evidence on affirmation. With some hesitation, we acceded to that application and allowed the affidavit to be put in. We have no doubt that the better procedure, where it is sought to supplement a defect in the record taken by the magistrate, is that reference should first be made to the magistrate and, where possible, that the defect be cured by an amendment to the magistrate's record. Only if the record is not amended should resort be made to affidavit evidence. We were, however, still faced with the fact that it was not apparent from the record as to whether the appellant gave sworn or unsworn testimony. Mr. Winter, from the Bar, informed us that of those present in court none (except, perhaps, the appellant himself) could testify, as a positive fact, whether the appellant had in fact been sworn. It should not be necessary to say that where an accused person is tried on a serious criminal offence involving the liberty of the subject, it is necessary that the case should be carefully and properly tried. We regret to say that the record of this case does not appear to show that that was done. Representation: Basto, Q.C. & Willis (C.P. Lai & Co.) for Appellant. Winter, C.C. for Crown/Respondent. (1) (1950) 16 M.L.J. 57 (2) (1968) H.K.L.R. 164 |