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Yeung Sau Shing v. The Queen

Case No.CACC 80/1981
Court
Court of Appeal
Date04 May 1981
Judge—
Case Document
100%

CACC000080/1981

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 80 OF 1981

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BETWEEN    
  YEUNG SAU SHING Appellant
  and  
  THE QUEEN Respondent

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Coram: Power, J. in Court.

Date of Judgment: 4th May, 1981.

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JUDGMENT

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1. This appeal lies against a conviction recorded against the Appellant, Yeung Sau-shing, on a charge that he did between the 21st day of February 1979 and the 28th day of February 1979, in this Colony, attempted to pervert the course of public justice by inciting Wai Kin-bong to give false evidence at a contemplated prosecution of Tony Cruz for assaulting the said Wai Kin-bong on the 10th day of February 1979.

2. Mr. Mathew, Q.C., who appeared with Mr. Rodway for the Appellant, set out the background to the laying of the charge as follows:

  On the 10th February 1979 there was an altercation in the carpark in Shatin Race Course during which the Complainant, Wai Kin-bong, referred to hereafter as Mr. Wai, was injured and rendered unconscious. (The evidence in the trial as to this altercation came from Mr. Wai who said that he had been "assaulted by Mr. Tony Cruz, his elder brother and 2 others unknown to me"). In consequence of the altercation Mr. Wai was taken unconscious to Queen Elizabeth Hospital. On the following day he made a verbal statement to a police officer and he was then, apart from a short break, in hospital until the 28th of February 1979. On the 14th February 1979 he was visited by five persons who included the Appellant, Mr. Alan Lau, Tony Cruz, Mr. Cruz Sr. and the brother of Tony Cruz. On the 15th February 1979 a letter of apology (Ex. D3) was prepared by Mr. Cruz Sr. and was later given to the Complainant, Mr. Wai. At a further visit by Mr. Cruz Sr. he offered to pay the hospital and medical expenses of the Complainant. The visits which led to the laying of this charge occurred on the 22nd of February and the 27th of February. On the first of these visits the Appellant was accompanied by Tony Cruz and his girl friend and on the second visit he was accompanied by Tony Cruz.  
  It was the Crown case that the incitement to give false evidence was made on the first visit and that the matter was pursued by the Appellant on the second visit.  
  Mr. Wai was released from hospital on the 28th of February and went, in answer to a police request, on the 8th of March 1979 to the Shatin Police Station. Mr. Wai claimed to have made complaints about the occurrences on the visits of the 22nd and the 27th to the police on the occasion of the visit.  
  Apart from the Appellant, who was the only witness for the defence, evidence came from:  
  Mr. Wai Kin-bong (P.W.1) the person alleged to have been incited by the Appellant;  
  Mrs. Wai, formerly Lau Wai-lan, (P.W.3) the wife of Mr. Wai who was his girl friend at the time of the incidents;  
  Daniel Lee (P.W.2) the I.C.A.C. officer in charge of the case;  
  Leung Hang (P.W.4) a police photographer who was a patient at Queen Elizabeth Hospital from 17th February to 28th February 1979;  
  Alan Lau Tin-chou (P.W.5) a newspaper publisher who was the employer of Mr. Wai and who visited him in hospital;  
  David Eaton (P.W.6) who was a patient with Mr. Wai from 25th February to 28th February 1979.  

3. The initial attack by the Appellant was upon the adequacy of the Statement of Findings of the Learned Magistrate. A number of authorities were cited which it was argued established that it was the duty of a magistrate to give reasons why he accepted the evidence of Crown witnesses rather than that of the witnesses called by the Defence in circumstances such as existed in the present prosecution. This duty is, in my view, best set out in the words of Mills-Owens, J. in Lam Tin-chung v. The Queen 1970 H.K.L.R. 105 at 106 where he said:

"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 simply 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 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."

4. I was also referred to the words of McMullin, J. in Yeung Chu v. The Queen, Criminal Appeal No. 1043 of 1975 in which the Learned Judge said:

"But where the body of evidence upon which the Crown relies in a criminal case shows on the face of it difficulties and incoherences of a substantial sort then I think in any such case it must always be the duty of a magistrate or a judge, in giving reasons for deciding which body of testimony he believes to discuss these difficulties and to give some reasonable indication of the manner in which he has disposed of them." Later in that judgment the Learned Judge went on to say: "I would not wish to say anything which would seem to imply a necessity for an elaborate casuistical, discussion of the facts put before a busy magistrate when he comes to record his findings. I can only say, in line with the authority already quoted, that where there is anything so questionable in the evidence laid in support of a criminal charge as to raise a doubt about the reliability of the witness giving that evidence it is desirable that the magistrate should say enough to disclose that he is aware of the difficulty and to indicate the grounds on which he is disposed to disregard it."

5. The Appellant submitted in this regard that, on the face of the record, there must be doubt as to the reliability of the principal Crown witnesses and that the magistrate had failed to show that he was aware of the existence of the matters giving rise to such doubt and to indicate how he disposed of them. I feel I should say, in fairness both to the Learned Magistrate and to the argument of Mr. Mathew, Q.C., that it transpired, as the argument unfolded, that the real complaint was not so much that the Learned Magistrate was not aware of evidence which suggested the possibility that the witnesses might be unreliable, for he indicated as much in his Statement of Findings, as that he failed to give a specific indication both of the areas out of which the possible unreliability arose and of the way in which he disposed of it so as to be able to accept and act upon their evidence.

6. Mr. Duckett, who appeared with Mr. Sinclair, for the Crown referred to substantially the same authorities but also asked the court to bear in mind when considering the matter the words of Rigby, J., as he then was, in R. v. Lam Kau (1962) H.K.L.R. 234 at 244 where he said:

"Having said that the appeal under the alternative procedure is at large, it follows that in our view an appeal against the weight of the evidence is competent. At this stage, however, the so called principle of the presumption of innocence must, in our view, no longer be of any application; the appellant will be a convicted person. But it will be open to the Appellate Court to consider whether in any particular case the appellant has been given the benefit of any reasonable doubt. The Appellate Court must however pay regard to the fact that the conclusions of the magistrate so far as they depend on oral testimony will have been arrived at on a basis the advantage of which is denied to the Appellate Court, that is to say on a first-hand reception of the evidence from the witnesses in person. To that extent and to the extent that the appellant can no longer rely on the "presumption of innocence" the onus lies on the appellant. But we cannot, in the absence of statutory provision to that effect (such as, for example, is contained in section 315 of the former Straits Settlement Criminal Procedure Code) say that as a general principle the onus rests upon the appellant to show that the conviction is wrong. It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction."

7. Ground 1 of the appeal was as follows:-

  "1. The Learned Magistrate misdirected himself by:-  
  (a) failing to differentiate between evidence which was directly relevant to the charge of attempting to pervert the course of justice by inciting the giving of false evidence and evidence which was not so relevant.  
  (b) failing to consider the evidence of the payment alleged to have been offered and its relevance to this charge.  
  (c) failing to consider the parts of the judgment in R. v. Kellett which were relevant to this charge."  

8. Mr. Mathew, Q.C., conceded that the appeal could not be allowed upon this ground alone but he argued that it demonstrated the failure of the Learned Magistrate properly to approach the Crown case as a whole. He pointed out that the charge against the Appellant was that he had incited Mr. Wai to give "false evidence", and that when such a charge is brought all that the Crown need prove is that there was an incitement and that it was to give false evidence and that on such a charge it is not necessary for the Crown to prove that any consideration was offered. He argued that when one looked at the Statement of Findings as a whole and, particularly, at the summary of R. v. Kellett (1976) 1 Q.B. 372, which the Learned Magistrate included in that statement, one could not be satisfied that the Learned Magistrate was directing his mind to the real matter in issue i.e. was it proved that the Appellant had incited Mr. Wai to give false evidence. He suggested that the Learned Magistrate appeared to have in his mind also that it was incumbent upon the Crown to prove that the Appellant had offered an inducement. Having accepted the evidence of Mr. Wai that the Appellant said to him that "if the Police could not be fixed up I could in Court not give evidence against Tony Cruz" the Learned Magistrate was entitled to find that the Appellant made a statement which was an inducement to give false evidence sufficient to found a conviction on the charge. There was evidence then, upon which the Learned Magistrate could make the findings which he did make in his Statement of Findings and as long as that statement is adequate I am satisfied that there is no substance in this ground of appeal.

9. Ground 4 of the appeal was as follows:-

  "4 Erred in accepting the evidence of P.W.1 and P.W.3 in the absence of corroboration and by failing to give his reasons for so doing notwithstanding the admitted discrepancies and contradictions to which no reference was made."  

10. The Appellant when arguing this ground submitted:

(i) that the Learned Magistrate in his Statement of Findings appeared to have grave doubts about some parts of the evidence of Mr. & Mrs. Wai which doubts were never properly set out or resolved;

(ii) that not only was there no corroboration of the evidence given by Mr. & Mrs. Wai but further that the evidence both direct and indirect tended to corroborate the evidence of the Defendant. It was conceded that there was no requirement in law that the evidence be corroborated but it was submitted that the evidence was such that the Learned Magistrate should not have accepted it unless he was satisfied that there was independent evidence supporting it.

11. I will deal firstly with (i). The Learned Magistrate in paragraph 8 of the Statement of Findings when referring to the evidence of Mrs. Wai said "Although there were quite a few discrepancies and some contradictions in her testimony I found as a fact that she was on the whole telling the truth and did corroborate some of P.W.1's evidence". Mr. Mathew, Q.C., said that he would have no argument with this statement had the Learned Magistrate gone on to indicate what the discrepancies and contradictions were and to indicate how he resolved them. He suggested further that the Magistrate should have gone on to indicate what he meant when he said that the witness was telling the truth "on the whole". Certainly the Learned Magistrate could have been more precise in this regard. However he specifically found the witness to be an "honest witness" which must involve the finding that she was not being deliberately untruthful. I am satisfied that what he was saying here was that, apart from the discrepancies and contradictions, which did not arise out of deliberate untruthfulness and with which I will deal in a moment, the testimony of the witness was truthful and correct. Further he found specifically that her recollection which became more detailed as the trial progressed was not a result of false invention but because the detailed and searching nature of the cross-examination drove her to recall the matters to which her mind was directed in more detail.

12. It is certainly true that the Learned Magistrate nowhere set out the discrepancies and contradictions that he found in the evidence of P.W.3 and that he nowhere indicated how he resolved them.

13. In paragraph 9 the Learned Magistrate indicates that he applied the principles enunciated in R. v. Cunningham & anor. 1977 H.K.L.R. 302 when dealing with the discrepancies and contradictions and from his statement of the law in this regard it might be suggested that he considered that the witness had been discredited as regards part of her evidence. Indeed, Mr. Mathew, Q.C. submitted that this shows quite clearly that the Learned Magistrate had grave doubts about the evidence of this witness. However, as the Learned Magistrate had specifically found, in paragraph 8, that Mrs. Wai was an honest witness, I do not consider that there is any substance in this submission.

14. The words "some discrepancies and some contradictions" appeared again in paragraph 11 of the Statement of Findings when the Learned Magistrate referred to the conversations which took place on the 22nd February, 1979 and the 27th February, 1979. Again the Learned Magistrate gives no indication what these discrepancies and contradictions were, nor does he indicate how he resolved them. The Appellant submits that the failure of the Learned Magistrate to detail and deal with the discrepancies and contradictions which he mentioned in paragraph 8 and paragraph 11 is a fatal flaw in the Statement of Findings which must result in the quashing of the conviction.

15. In order to determine whether this must be so it is necessary to look with care at the discrepancies and contradictions which do exist in the evidence of Mr. & Mrs. Wai. I am satisfied, as was suggested by Mr. Mathew, Q.C. in his reply, that they can be grouped under three heads:

(a) the discrepancies and contradictions between the evidence of Mr. Wai and Mrs. Wai as to the conversations on 22nd February and 27th February;

(b) the discrepancies and contradictions between the evidence of Mr. Wai and Mrs. Wai as to the coming into being of the two sets of notes to which the witnesses referred, Ex. D1 and Ex. D2;

(c) the contradictions in the evidence of Mrs. Wai when he spoke of her relationship with Mr. Lau and Mr. Fan.

16. As to (a) there can be no doubt that the Learned Magistrate was aware of the existence of these discrepancies and contradictions as he made specific mention of them, without detailing them, in paragraph 11 of his Statement of Findings. I have been over the evidence of Mr. & Mrs. Wai in this regard with care and am satisfied that the discrepancies are no more than one would expect to find between the evidence of any 2 honest witnesses endeavouring to recall a detailed conversation some time after it had occurred.

17. I am satisfied that it was enough that the Learned Magistrate was aware of the existence of these discrepancies and contradictions and that he bore them in mind when considering the evidence regarding the 2 conversations.

18. As to (b) Mr. Wai gave the following evidence regarding Ex. D1:-

  "Q: According to my instructions you have confused the 2nd and 3rd visits as the 2nd visit was inside your ward and the 3rd visit on 27/2/1979 was in the resting area?
  A: On the 22/2/79 it was in the resting area. On 27/2/79 it was inside the ward.
  Q: I suggest it was the other way around - 22/2/79 was in the ward?
  A: Not as far as I remember. 22/2/79 was in the resting place.
  Q: Could you be mistaken?
  A: No.
  Q: When I said the earlier of the 2 visits I mean when the defendant and Tony Cruz came - the later visit was with Tony's girl friend as well?
  A: Not as far as I remember.
  Q: Did you record it in your diary?
  A: I mentioned it to my wife who recorded it for me on pieces of paper.
  Q: Even after the 14/2/79?
  A: That was also recorded. It was recorded on 22/2/79.
  Q: Did you see your wife recording?
  A: I asked her to record it. I did see it recorded sometimes.
  Q: So everything that was said you asked her to record it?
  A: On matters which are important to this case.
  Q: After 27/2/79 was a record made?
  A: Yes.
  Q: Everything important was recorded?
  A: Yes.
  (p. 14 and 15 of the record)
  The Appellant places great reliance upon this passage. Mrs. Wai's evidence with regard to Ex. D1 was as follows:-
  "(Witness looking at Ex. D1)
            This is my handwriting. I made the notes. This was made at one time. This was on just before P.W.1 was discharged on 28/2. P.W.1 asked me of the dates. This was written after the 18/2/1979. The entry of 28.2 Wednesday was written on the day of P.W.1 was discharged on 28/2. It was after P.W.1 was discharged. Apart from this there are other documents. These are not here. These documents are loose sheets. The statements on these documents are copied on to a book. It is an exercise book. This paper (D1), is copied from another paper. This paper came from the exercise book. I originally wrote them on loose sheets. I copied them on to the paper in the book. The loose sheets are now thrown away. The notes on the loose sheets were written partly at the same time and some within 2 days. I made these notes as I wanted some information on my husband's health. The reason is that P.W.1 changes room often so I intended to take some information from the hospital concerning P.W.1's health. I wrote the names as I have never met them before. P.W.1 was involved in that matter. P.W.1 told me that they are the persons on the side of Tony Cruz who assaulted him (P.W.1)."
  (p. 45 and 46 of the record)
            Later she said in cross-examination:-
  "Q: So on the first loose sheet you wrote - 10/2/79, 11/2/79, 12/2/79 and 13/2/79?
  A: Yes.
  Q: Why did you record that?
  A: P.W.1 asked me for information as the police wanted the information as they have come to interfere.
  Q: When did P.W.1 tell you that?
  A: On 27/2/79.
  Q: So he asked you for a record of the events on 27/2?
  A: Yes.
  Q: Then you found the loose sheets?
  A: Yes.
  Q: Then you recorded them on to a page in the exercise book?
  A: Yes.
  Q: On 13/2 you began making records on loose sheets?
  A: Yes."
  (p. 54 of the record)

19. With regard to Ex. D1 the major discrepancy, which, it is suggested, arises out of these passages, is that Mr. Wai says that he asked his wife to start recording on 22nd and she says that she was not asked to record anything until 27th. The Learned Magistrate should, in my view, have commented upon this discrepancy between the evidence of Mr. Wai and that of Mrs. Wai as to when he asked her to start recording notes. However I do not consider that failure alone could be such as would warrant my interfering with and quashing the conviction.

20. As to the making of Ex. D2 it is also suggested that there is a discrepancy between the evidence of Mr. Wai and that of Mrs. Wai. Mr. Wai when referring to Ex. D2 said "I wrote it on 28/2/79 from my wife's record". Mrs. Wai when giving evidence said that she had not given her record to her husband to copy from when he was making Ex. D2 but that she had read it out to him. If a discrepancy exists here, and I am by no means sure that it does, then it was not in my view of such seriousness as required particular comment from the Learned Magistrate.

21. As to (c) the evidence in this regard, which appears at p. 73 to p. 78 of the record, shows a series of answers which are unclear and, at times, conflicting. However having read the passage with care the clear impression it leaves upon me is of a confused and somewhat apprehensive, but not dishonest, witness. It would have been better had the Learned Magistrate dealt specifically with that passage but I am not prepared to say, giving full weight to the authorities in this regard, that he was under a duty to do so. I am satisfied that it was sufficient for him to indicate, as he did, that when considering the evidence of this witness he bore in mind the contradictions therein and took into consideration her demeanour.

22. I now turn to (ii). The specific matters of evidence, both direct and indirect, which it is suggested tended to corroborate the evidence of the Defendant are referred to under the other grounds of appeals and I will deal with them as I come to each of those grounds. I intend also to make a final comment upon this aspect of the appeal after I have dealt with the last of the individual grounds.

23. Suffice to say, at this stage, that I was not persuaded that there was evidence which necessarily tended to corroborate the evidence of the Defendant. I am satisfied that the view to be taken of these matters was very much a matter to be decided by the trial judge in the light of his overall conclusions. Further given the nature of these matters, which I will examine in detail hereafter, I do not consider that the Learned Magistrate was required to make a specific finding that he was satisfied that they did not support the evidence of the Defendant.

24. Ground 3(a) of the grounds of appeal was stated as follows:-

  "3. Failed to consider and to take into account the evidence called for the defence or the evidence which supported the defence, and in particular:-  
  (a) the unlikelihood of the offence being committed in the way alleged."  

Grounds 3(b) and 2(d) and (e), which were argued together, were stated as follows:-

25. It was argued, in this regard, that it was manifestly unlikely that the Appellant would have made an offer in the circumstances alleged by the Crown witnesses. I do not consider that there is any substance in this submission. Whether or not the offer was made in such circumstances was in my view entirely a matter for the Magistrate. For my part, I must say, I find no manifest unlikelihood in the evidence in this regard and I am quite satisfied that the Learned Magistrate did have in his mind, when considering the conversations out of which the offence is alleged to have arisen, the circumstances in which those conversations took place.

  "3. Failed to consider and to take into account the evidence called for the defence or the evidence which supported the defence, and in particular:-  
  (b) the effect of Exhibits D1 and D2 on the evidence of P.W.1 and P.W.3."  
  "2. The Learned Magistrate misdirected himself as to the effect of certain parts of the evidence:-  
  (d) by wrongly finding that Ex. D1 was a record made by P.W.3 for her personal use and not prepared in anticipation it would be used in any court proceedings.  
  (e) by wrongly finding that Ex. D2 was made with "no prior intention to involve the Defendant" in any legal or other court proceedings."  

26. The evidence of Mrs. Wai, as I have already indicated, was that she had made contemporaneous notes on loose sheets of paper of matters that occurred prior to the 27th February 1979 and on that day she had copied these loose notes onto a pice of paper which became Exhibit D1. Her evidence in this regard appears at p. 45 and p.46 of the record and is set out earlier in this decision.

27. The evidence of Mr. Wai was that on the 28th of February he used Ex. D1 to make up his own note of events which became Exhibit D2. The principal matter raised by the Appellant with regard to these 2 exhibits under Ground 3(b) was that they did not support the evidence of Mr. & Mrs. Wai. The Appellant relied very much, in this regard, upon the passage from the evidence of Mr. Wai from p. 14 and p. 15 of the record which I have set out earlier.

28. The Appellant submits that what Mr. Wai was saying there was that as at 22nd February 1979 he had asked his wife to record everything that was said which was of importance to the case and that, as there was no conversation recorded in her notes opposite to the date the 22nd February 1979, then nothing of any importance can have been said on that date. The Appellant argues that this was a matter which the Learned Magistrate had to resolve before accepting the evidence of Mr. & Mrs. Wai and that the Learned Magistrate did not refer to it, let alone resolve it, in his Statement of Findings and that statement is, therefore, manifestly defective in this regard. Before examining the way in which the Learned Magistrate did deal with this matter I consider that it is important to make it clear that the passage in the cross-examination of Mr. Wai, from p. 14 and 15 of the record, referred to above, occurred at a time when neither Ex. D1 nor Ex. D2 had been tendered. Sometime later in that cross-examination the following exchange occurred:-

  "Q: You told your wife to make a record of the events and you saw your wife writing them down?  
  A: Yes, I did.  
  Q: Did you make notes?  
  A: No. I only made some after I was discharged from the hospital.  
  Q: When was that?  
  A: 28/2/79.  
  Q: Were you discharged on 28/2?  
  A: Yes.  
  Q: How many days did you write the record after your discharge?  
  A: I wrote it on 28/2/79 from my wife's record.  
  Q: When you said summary was it more brief than your wife's record?  
  A: Yes.  
  Q: It was based on your wife's record?  
  A: Yes.  
  Q: Is this your wife's record?  
  A: Yes, it is her writing.  
  Q: Is this the record?  
  A: Yes, it is."  
  (p. 20 of the record)  

It was at this point that the 2 exhibits were tendered. The cross-examiner was then for the first time in a position to confront the witness with the 2 documents. This, however, was not done and the notes of evidence show that Mr. Wai was never cross examined upon the basis that, he having admitted that his wife's notes were a full record of what occurred on each date, the reason why the entry in Ex. D1 as to the 22nd February 1979 contained no conversation of any consequence was because no conversation of any consequence had taken place. Further when Mrs. Wai came to the witness box she gave detailed evidence as to the separate sheets and as to Ex. D1 and she proceeded in her evidence to go from date to date indicating what the note relating to the date was and then telling what she recalled had occurred on that date (p. 46 of the record). She was cross-examined at length about Ex. D1 and the information therein but again it was never put to her that she had been told by her husband to keep a full record of everything of consequence and that the reason there was no conversation recorded in the entry as to the 22nd February was because no conversation of consequence had occurred. Indeed when her evidence is read as a whole it is quite clear that what she was saying was that all she did was to jot down brief notes.

29. It was suggested that the Learned Magistrate was making an attempt to resolve this difficulty, insofar as it applies to Ex. D1, when he made the finding, in paragraph 10(3) of his Statement of Findings, that Exhibit D1 "was a record for P.W.3's personal use and not prepared with the anticipation that it would be used as an exhibit in any court proceedings". It is suggested that the Learned Magistrate was attempting in this passage to explain why he was not shaken in his conviction that he should accept the evidence of P.W.3 even though her record, Ex. D1, contained no mention of the conversation which she said took place on 22nd February. It is submitted that his reason for so doing is suspect as it contains a clear misstatement of fact i.e. that the document "was a record for P.W.3's personal use". This submission is clearly correct in so far as it details a misstatement of fact as both Mr. & Mrs. Wai said that Ex. D1 was prepared for use in making a complaint to the police. The evidence of Mrs. Wai indicated that it was the loose sheets of paper, from which Ex. D1 was complied, and not Ex. D1 itself, that she had originally begun to make as a record for her personal use.

30. It cannot be gainsayed that there was a misstatement of fact by the Learned Magistrate in this regard but it seems to me clear beyond any doubt that what he was indicating in paragraph 10(3) of his Statement of Findings was that the reason he was satisfied that there was nothing sinister about the fact that Ex. D1 did not record the conversation was because it was not prepared by Mrs. Wai in the anticipation that it would some day be produced as an exhibit in Court. He seems clearly, in this regard, to have been accepting the evidence of Mrs. Wai as it appears in answer to a question in re-examination:

  "Q: So when you made your notes did you consider being careful as you may be questioned by counsel in Court?  
  A: If I had I would have written everything very carefully. I did not know it."  
  (p. 87 of the record)  

31. A further similar attack was launched upon the finding of the Learned Magistrate with regard to Ex. D2. In paragraph 10(4) of the Statement of Findings he said that as regards Exhibit D2 he found that it "was made with no prior intention to involve the accused Yeung in any legal or other court proceedings". It is suggested that the Learned Magistrate was attempting in this passage to explain why he was not shaken in his conviction that he should accept the evidence of P.W.1 even though the witness's own record Ex. D2 contained no mention of the conversation which he said took place on 22nd February. It is submitted that his reason for so doing cannot be accepted as it contains a clear misstatement of fact i.e. that Ex. D2 "was made with no prior intention to involve the accused Yeung in any legal or other court proceedings".

32. It is difficult to know why the Learned Magistrate phrased this sentence as he did however I cannot accept that the Learned Magistrate was therein betraying a lack of awareness that Ex. D2 was intended to be used in making a complaint to the police as he had found, in the preceding sentence in the same paragraph, that this document was made for "P.W.1's own use as a note to complain to the police at Shatin".

33. I am quite satisfied that what the Learned Magistrate was saying was that Ex. D2 was made by Mr. Wai as a note to use when complaining to the police and that he never intended that it should be used in court proceedings. The attitude which, I am satisfied, the Learned Magistrate took to these 2 exhibits was one which he was entitled to take and that being so it cannot be successfully maintained that these exhibits give any support to the defence. I am satisfied that the Learned Magistrate did not fail to consider and take into account the effect of Ex. D1 and Ex. D2 on the evidence of P.W.1 and P.W.3 and that he did not misdirect himself in this regard.

34. Ground 3(c) of the grounds of appeal was as follows:-

  "3. Failed to consider and to take into account the evidence called for the defence or the evidence which supported the defence, and in particular:-  
  (c) the effect of the evidence relating to the alleged mention of $2,000,000.00 and the fact that this was not included in the statements made to I.C.A.C. by P.W.1 and P.W.3."  

35. I do not consider that there is any substance in this ground of appeal. I am satisfied that the Learned Magistrate was justified in making the finding which he did make in this regard in paragraph 12 of the Statement of Findings and, given that finding, I am satisfied that the evidence, in no way, supports the defence.

36. Ground 2(c) reads as follows:-

  "2. The Learned Magistrate misdirected himself as to the effect of certain parts of the evidence:-  
  (c) by wrongly finding that the letter Ex. D3 was written at the request of P.W.5."  

37. The evidence of Mr. Lau in this regard was as follows:-

  "Q: Do you remember a letter of apology given by Cruz family to P.W.1?  
  A: I know of it.  
  Q: Was it you who telephoned the defendant to ask him to tell Tony to write the apology and set out terms of compensation?  
  A: I cannot remember.  
  Q: Did you ask defendant to ask Tony for such letter of apology?  
  A: I cannot remember. I can say Cruz senior and I did chat about it. I thought that would make P.W.1 happier.  
  Q: Did you suggest to Cruz senior that?  
  A: We chatted about that as well."  
  (p. 109 of record)  

38. The most that the witness was prepared to say in this regard was that he had chatted to Mr. Cruz Sr. about the letter and told him that he thought it would make Mr. Wai happier. He maintained that he could not remember if he had suggested that Mr. Cruz Sr. write the letter. There was no other evidence in this regard and the Learned Magistrate was, therefore, wrong when he found that Ex. D3 was written at the request of Mr. Lau. This can properly be described as a misdirection albeit a somewhat insignificant one.

39. Bearing in mind that it concerned the evidence of a witness upon whom the Learned Magistrate did not place any real reliance as to a peripheral matter I am, even when I consider it along with the submissions as to Mr. Lau's evidence generally, with which I will deal next, nonetheless satisfied that there is no substance in this ground of appeal.

40. Grounds 3(d) and (e) and Grounds 2(a) and (b), which were argued together, were as follows:-

  "3. Failed to consider and to take into account the evidence called for the defence or the evidence which supported the defence, and in particular:-  
  (d) the effect of the evidence of P.W.5 and the fact that it was contradicted by his own statement to the I.C.A.C.  
  (e) P.W.3's evidence as to her dealings with P.W.5 and FAN."  
  "2. The Learned Magistrate misdirected himself as to the effect of certain parts of the evidence:-  
  (a) by wrongly finding that P.W.5 gave evidence that he brought the three members of the Cruz family and the Defendant to the hospital to visit P.W.1 and that before he went to the hospital he met them and the Defendant at the Marseille Restaurant.  
  (b) by finding that the evidence of P.W.4, P.W.5 and P.W.6 was of little assistance to the case of the Crown without having any regard to its effect on the case for the defence."  

41. It was submitted that paragraph 5 of the Statement of Findings, which contains the finding referred to in Ground 2(b), was unexceptionable insofar as it stated that the testimony of P.W.2, P.W.4, P.W.5 and P.W.6 was of little assistance to the Crown but exception was taken to the fact that the Learned Magistrate did not go on in his Statement of Findings to make a specific examination of the evidence of those witnesses in order to ascertain to what extent their evidence assisted the Defence. It was submitted that this failure was indicative of the failure overall by the Learned Magistrate to properly evaluate evidence, placed before the Court both by Crown witnesses and by the Defendant himself, which was of assistance to the Defence. It was suggested that while the testimony of these witnesses was of little use to the Crown it was of considerable use to the Defence and the Magistrate failed even to advert to this. It seems to me clear that if the Magistrate was entitled to take the view which he did take of the evidence of P.W.1 and P.W.3 then the evidence of these other witnesses was of no assistance to the Defence. I am satisfied that the Learned Magistrate did not misdirect himself in this regard. The crux of this whole appeal is whether the Learned Magistrate was entitled to take the view he did of the evidence of Mr. & Mrs. Wai and whether he dealt adequately with his reasons for so doing in his Statement of Findings.

42. The Appellant canvassed the evidence of the witness Alan Lau (P.W.5) at some length. It is pointed out, in Ground 2(a), that the Learned Magistrate was clearly wrong in two of the findings which he made with regard to this evidence. It is true that the Learned Magistrate was wrong when he found that P.W.5 had said that he brought "Tony Cruz, Tony's brother, Tony's father (i.e. Cruz Sr.) and the accused Yeung" to the hospital on the 14th February and that he was wrong when he said that P.W.5 had said that he met the accused Yeung at the Marseille Restaurant in Tsimshatsui prior to going to the hospital. How he came to make these errors of fact I do not know but I am satisfied given the attitude which he took to the evidence of Mr. Lau that, in the final analysis, they are not of any real significance.

43. It was suggested when arguing Grounds 3(d) and (e) that considerable significance should have been attached by the Magistrate to the fact that Mr. & Mrs. Wai both failed to mention in their statements to I.C.A.C. that Mr. Alan Lau, P.W.5 had gone to the hospital on the 14th and Mr. Lau himself in his statement to I.C.A.C. also failed to mention this fact. It was suggested that the Magistrate should have been aware of the possibility of a deliberate suppression of this evidence by all three parties and that this should have alerted him to the possibility that these three parties were lying in order to conceal the fact that Mr. & Mrs. Wai, far from being affronted by an offer of money made by the Appellant, were, in fact, actually seeking to obtain compensation with the assistance of Mr. Lau.

44. It was submitted that, bearing the above in mind, when Mr. Lau's evidence was looked at alongside that of Mrs. Wai, particularly her evidence with regard to her meeting with a Mr. Fan, the Learned Magistrate should have been alive to the possibility that Mr. Lau and Mr. & Mrs. Wai were lying. It was submitted further that the evidence indicated that they were lying to conceal the fact that it was they who were seeking to obtain money and that the Learned Magistrate should have dealt with this possibility in his Statement of Findings. These suggestions were, indeed, made to the witnesses in cross-examination but they were denied. It is clear from the findings that the Learned Magistrate made regarding the evidence of Mr. & Mrs. Wai that he accepted these denials. The "conspiracy" theory, if I might term it that, was not supported by evidence of any cogency. It was raised in cross-examination and denied. In such circumstance the Learned Magistrate was not called upon to deal with it in his Statement of Findings and there is, in my view, no merit in the suggestion that he failed to consider and take this evidence into account.

45. A further attack, which was closely connected with the matters dealt with above, was launched upon the evidence of P.W.3, it being suggested that her evidence with regard to her dealing with P.W.5 and Mr. Fan was wholly unsatisfactory. It is true that her evidence was unclear and, at times, contradictory with regard to her dealings with Mr. Fan and that the Learned Magistrate made no mention of this in his Statement of Findings. It would have been more satisfactory had he done so. However as I have already indicated when dealing with this same evidence under Ground 4 I do not consider that he was under a duty so to do.

46. Ground 3(f) and (g) of the grounds of appeal were as follows:-

  "3. Failed to consider and to take into account the evidence called for the defence or the evidence which supported the defence, and in particular:-  
  (f) the evidence relating to P.W.1's alleged complaint at Shatin Police Station on 8th March, 1979 and the failure by the Crown to call P.W.1's solicitor and/or the police officer from Shatin Police Station to rebut the suggestion put to P.W.1 that he had not told the Police Officer the circumstances of the Defendant's two visits to the hospital.  
  (g) the failure to appreciate the significance and/or take account of P.W.6's evidence regarding what he was told by P.W.1 at the hospital."  

47. It was suggested when dealing with Ground 3(g) that the evidence of P.W.6, Mr. Eaton, did not bear out the suggestion by Mr. Wai that he had complained to Eaton after the incident of the 27th. I allowed Mr. Mathew, Q.C. to place before me a note of evidence which amplified the note kept by the Magistrate in this regard. I was nonetheless convinced that this evidence could not reasonably or sensibly be said to have the meaning contended for by the Appellant. I was satisfied that there was no substance in this ground of appeal.

48. As to Ground 3(f) it was submitted that, it having been suggested to Mr. Wai, in cross-examination, that he had not made any complaint to a Police Officer at Shatin Police Station on the 8th March, further evidence was admissible, and should have been called, to prove that such a complaint had been made. It was suggested that, the Crown having failed to call supporting evidence, the Learned Magistrate should have had grave doubt as to the credibility of Mr. Wai in this regard and, by inference, generally, and that he failed to consider this matter as there was no mention of it in his Statement of Findings. The fact of this matter is that a suggestion was made to Mr. Wai in cross-examination and denied by him. It is true that the matter was left there and that no further evidence was forthcoming in this regard. The Learned Magistrate had to deal with the matter upon the basis of the evidence as it stood before him. He was quite entitled to refuse to let this matter shake him in the view he took as to the credibility of Mr. Wai. I do not consider that he was called upon to make a specific explanation as to why a matter of this nature did not shake him in that view.

49. Ground 3(h) of the grounds of appeal was as follows:-

  "3. Failed to consider and to take into account the evidence called for the defence or the evidence which supported the defence, and in particular:-  
  (h) the evidence of the Defendant in cross-examination that he had seen and agreed with Tony Cruz's statement to I.C.A.C. regarding what was said at the hospital."  

50. This was the final ground argued before me and I do not intend to say more than I can see no substance at all in this ground.

51. I will now deal with the overall complaint in Ground 3 i.e. that the Learned Magistrate failed to take into account both the evidence of the Appellant and other evidence which supported the defence.

52. As to the evidence of the Appellant it is true that the only direct reference which the Learned Magistrate made to that evidence was in para. 3 of the Statement of Findings. He there said:-

"At this stage I need only say that the accused Yeung made a complete denial of all the allegations on what was alleged to have been said on the second and third visits he made on P.W.1 at Q.E.H. His defence is therefore one of simple denial that he never made the statements as alleged to have been said on the 22nd February 1979 and on 27th February 1979."

53. It is not, in my view, right to suggest, however, that he never again, thereafter, dealt with the evidence of the Appellant. In para. 6 of the Statement of Findings he is clearly dealing, inter alia, with the conflict between the evidence of Mr. Wai and the Appellant as to where the meeting of 22nd February took place (in the resting area or the hospital room) and resolving that conflict by accepting the evidence of Mr. Wai.

54. In paragraph 11 of the Statement of Findings he specifically accepts that both on 22nd and 27th the Appellant offered payment to Mr. Wai in an attempt to persuade him not to give evidence. It surely cannot be suggested that the Learned Magistrate did not have in mind when examining the evidence in this regard that the evidence of the Appellant was that no such offer had ever been made. I am satisfied that by his finding in para. 11 he implicitly, but nonetheless clearly, rejects that evidence. The same comments apply to the findings in para. 12. It would have been better if the Learned Magistrate had said specifically that he was rejecting the evidence of the Appellant but I am satisfied that it is clear not only that he was doing so but also that, when doing so, he was taking into account the evidence of the Appellant.

55. It is also complained in this regard that the Learned Magistrate did not give consideration to aspects of the prosecution evidence which supported the defence. I will not go again over each of the matters raised in Ground 3 of the Grounds of Appeal as I have already dealt fully with them. I intend to make further remark only with regard to the matters raised in Ground 3(b). The effect of Ex. D1 and Ex. D2 on the credit to be given to the evidence of Mr. & Mrs. Wai was very much a matter for the Learned Magistrate. I consider that he did carefully examine their evidence in the light of these 2 documents and that he was entitled to take the view of the documents and the evidence which I am satisfied he did take.

56. I was not satisfied in this regard nor, indeed, with regard to any of the other matters raised that the Learned Magistrate had failed to consider matters which supported the defence.

57. What I must now consider is whether in all of the circumstances the verdict was unsafe and unsatisfactory and cannot be allowed to stand. The Statement of Findings, which was dissected with surgical scrupulosity and subjected to the most searching examination, merits the following criticisms:-

  (i) The Learned Magistrate should have commented upon the discrepancy between the evidence of Mr. Wai and that of Mrs. Wai as to when he asked her to start recording notes (Ground 4).  
  (ii) In relation to the evidence of Mr. Alan Lau the Learned Magistrate made 3 findings of fact which were contrary to the evidence.  
  (iii) There were a number of matters, upon which the Statement of Findings was silent, with regard to which it would have been more satisfactory if the Learned Magistrate had seen fit to make specific comment.  
  (iv) The Learned Magistrate in his findings did not specifically hold that he was rejecting the exculpatory evidence of the Appellant and was not accepting evidence, which was, arguably, of assistance to the defence. He failed, therefore, in circumstances where it was desirable that he should do so, to rule specifically, although he did so by inference, that he was rejecting the Appellant's evidence and the other evidence that might have supported it.  

58. When dealing with this final aspect of the appeal one must look at the nature of the evidence and the attitude taken towards it by the Learned Magistrate. The prosecution arose out of 2 conversations which took place in Queen Elizabeth Hospital on 22nd February and 27th February 1979. The only witnesses to those conversations, who gave evidence, were Mr. & Mrs. Wai and the Appellant. It is true that there was a considerable body of peripheral evidence but the real conflict was between the evidence of Mr. & Mrs. Wai and that of the Appellant.

59. The Learned Magistrate found that P.W.1 "who was very thoroughly cross-examined by the defence counsel .... remembered the events" of the 22nd February and the 27th February clearly.

60. As to Mrs. Wai he found that she was "an honest although at times hesitant witness" who was "on the whole telling the truth". As to the conversations on 22nd and 27th of February he found "notwithstanding some discrepancies and some contradictions" that their evidence of an offer of payment by the Appellant to persuade P.W.1 not to give evidence was "true and proved". He made this finding "taking into consideration the demeanour" of the 2 witnesses and the fact that their evidence was not corroborated. The Learned Magistrate clearly addressed himself to the central issue before him which was one of credibility. In my view there was before him ample and cogent evidence indicating that the Appellant was guilty of the offence charged. Having heard and seen the witnesses he took a view of that evidence which he was perfectly entitled to take. In all of the circumstances I am not persuaded that there is any ground sufficient to make the verdict unsafe and unsatisfactory. The appeal must, therefore, be dismissed.

  (N.P. Power)
  Judge of the High Court

Representation:

Mr. John Mathew, Q.C. and Mr. G. Rodway instructed by Fairbain & Kwok for Appellant.

Mr. A.P. Duckett, Ag. Senior Assistant Crown Prosecutor for Respondent.