Chan Kin-kwok v. The Queen
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CACC000827/1981 [Effect of certificate issued under section 37K of Cap. 115. Defence of alibi must be adequately put.]
Coram: Roberts, C.J., Silke, J.A. & Penlington, J. Date: 11 & 13 October 1982 ----------------- JUDGMENT ----------------- Roberts, C,J.: Preliminary 1. The defendants were charged with three offences. On the first count, the first and third defendants were charged with being members of the crew of a ship which had entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1)(a) of the Immigration Ordinance. Both were convicted on that count, but have not appealed against either conviction or sentence. 2. On the second count, the second defendant only was charged with being the owner of a ship which entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1)(b) of the Immigration Ordinance. He was acquitted of this charge. 3. On the third count, the second defendant only was charged with being a member of the crew of a ship which entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1)(a) of the Immigration Ordinance. He was convicted on this count and sentenced to five years' imprisonment. His application for leave to appeal against conviction and sentence was refused by the single judge. He has renewed his application before us. 4. The particulars of the third count, the only one with which we are now concerned, alleged that the second defendant, CHAN Kin-kwok,
5. At the outset of the trial, however, the particulars of this count were amended, at the request of counsel for the Crown, to read –
instead of
an alteration which, as will be seen later, has become of some significance. Facts 6. Some time on the late evening of the 24th October, 1980, though the evidence as to the exact time at which this occurred is somewhat indistinct, about 30 unauthorized entrants were picked up in Macau and brought to Hong Kong, where they were landed near Sai Kung in the very early hours of the 25th October. 7. About 2 o'clock that morning, one of the unauthorized entrants was arrested by security forces; and a further 20 were caught about two hours later. As a result of information given by them, a search was made for a speedboat, which would fit the description furnished by the unauthorized entrants. 8. The following morning, speedboat No. 3567, which accorded with that description, was found in the Causeway Bay Typhoon Shelter. In this speedboat was discovered a purse, which was later identified by Miss Leung, one of the unauthorized entrants who had been captured on the early morning of the 25th October, as hers and as having been left by her in the boat in which she had been brought from Macau. 9. By reason of this, and other evidence, there can be no reasonable doubt that speedboat No. 3567 was used to bring those unauthorized entrants into the territory from Macau on the 24th or 25th October, 1980. 10. The Crown's case against the defendants can be summarized as follows. All three of them were present on the afternoon of the 24th October in a boatyard where a Mr. Leung, acting as agent for Mr. Poon, the former owner of the boat, sold No, 3567 to a purchaser described in the transfer form as CHEUNG Kam-kwei. The three defendants were found by police officers near the Causeway Bay Typhoon Shelter at about 2 a.m. on the 25th October. All were wearing soaking wet clothing. When asked what they had been doing, they replied that they had been fishing during the evening and that they had become wet during the course of this activity. 11. On the person of the first defendant, who was in the company of the second and third defendants, were found keys which, when tested, fitted the engine of No. 3567. In addition, the palm-print of the first defendant was found on No. 3567, as were fibres of clothing identified as the same as fibres taken from clothing worn by the third defendant. 12. The second defendant was identified as being on the boat, which brought them from Macau to Hong Kong, by two of the unauthorized entrants, CHING Shing-tuen (P.W.11) and FUNG Cheung-kam (P.W.12) though these identifications, which we will consider in more detail later, could not be said to have been reliable. 13. To strengthen its case further, the Crown produced a certificate under section 37K of the Immigration Ordinance, which provides that –
14. Upon such production, it is presumed, until the contrary is roved, that the certificate was signed by the person by whom it purports to have been signed, that the person who signed the certificate was a police officer of the rank stated in the certificate and that the person charged was, at the date on which the offence is alleged to have taken place, a member of the ship's crew. 15. The effect of this certificate is to place upon a defendant the burden of showing, on the balance of probabilities, that he was not a member of the ship's crew at the relevant time. Defence 16. The three defendants all gave evidence. They agreed that they had taken part in the negotiation of the sale of the boat on the afternoon of the 24th. However, they asserted that they had arranged for the delivery of the boat the following day and that, although the keys of the boat were handed over to the first defendant on the 24th, delivery was to be taken on the 25th. After these negotiations, they said, they went to a seafood restaurant where they remained from about 8 o'clock until a little after 9 o'clock on the evening of the 24th. After they left the restaurant they went to the Causeway Bay Typhoon Shelter, where they fished for several hours. It rained late that night and, in the early hours of the morning of the 25th, they rowed back to land. This, they said, explained why their clothing was wet when they were arrested by the police shortly after they had landed. 17. A number of grounds of appeal were argued before us, three of which have caused us a degree of concern. These were the adequacy of the judge's direction on the subject of identification, the effect of the certificate issued under section 37K of the Immigration Ordinance on the burden of proof and the question of whether the defence of 'alibi' raised by the defendants was adequately put to the jury. Identification 18. The evidence as to the identification of the second defendant had a number of unsatisfactory features. Two of the unauthorized entrants, P.W.11 and P.W.12, identified him at an identification parade. Neither, however, was able to identify him, or indeed any of the other defendants, in the dock during the course of the trial. 19. Furthermore, P.W.12 said that he had identified the second defendant because a police officer told him that the second defendant was a member of the boat crew, shortly before he (P.W. 12) attended the identification parade. P.W.11 said that he had agreed to identify the first and second defendants after being told that he would be allowed to remain in Hong Kong if he could identify somebody. Apart from these questionable features of the identification parade, it has to be remembered that the unauthorized entrants' only opportunity to observe the defendants occurred in a crowded boat on a dark, rainy night, in the course of an expedition which would have had to be conducted with as little light as possible. 20. The judge drew the jury's attention to the conditions under which the identifying witnesses had observed the defendants. He pointed out the circumstances of the light, the crowded boat and the relative positions of the identifiers and the defendants in the boat. In our view, he dealt with the physical problems involved in these identifications adequately. 21. He also, in accordance with the guidelines set out in R. v. Turnbull(1), warned the jury of the need for caution in accepting the evidence of identification of the second and third defendants. What he did not do was to explain to the jury, having warned them that special care was necessary in dealing with identifications, the reason for such care being necessary. This is a requirement which Turnbull(1)says should be followed in any case in which identification evidence is the whole or a substantial part of the prosecution case. 22. A substantial amount of other evidence, to which I have earlier drawn attention, formed part of the Crown case. It might, perhaps, have been possible to argue that the evidence of identification was not a substantial part of the evidence on which the Crown relied, were it not for the view taken by the trial judge himself. He comments -
23. He was, therefore, on the basis of his own assessment of the case, obliged to follow the Turnbull(1)guidelines. This he omitted to do in one respect, and in one respect only. He did not explain to the jury why it is necessary for evidence of identification to be approached with special caution. Although this may seem to assume a somewhat low level of common-sense on the part of the average juror, who should be well aware of the dangers which are inherent in identifications, nevertheless Turnbull(1)obliges a judge to call attention to the reasons for caution. 24. We would not, however, regard this omission of a judge as sufficient of itself to justify upsetting a conviction, provided that in other respects his summing-up makes it clear to the jury, as the judge did, that caution is essential when considering evidence of identification and that he has adequately drawn the jury's attention to such difficulties of identification as have emerged from the evidence. Section 37K of Cap. 115 25. If the Crown charges a person with being a member of the crew of a ship which enters Hong Kong waters with unauthorized entrants on board, contrary to section 37C of the Ordinance, and a certificate under section 37K is produced by the Crown, this has the effect of obliging the defendant, without the need for any further evidence, to establish on the balance of probabilities that he was not. 26. It is, of course, common enough for legislation to provide that a presumption shall arise if a number of basic facts have already been proved by the Crown. This provision, however, places in the hands of senior police officers the power to sign a certificate which has, by itself, the effect of altering the burden of proof in a criminal trial. 27. The police officer is not required to justify the grounds of his belief. They do not have to be reasonable, nor is his certificate open to challenge. He merely expresses an honest belief. It is not necessary for the Crown to establish any physical connection between the defendant and the ship concerned, before the certificate may be tendered. 28. It is as if the law provided that, if property is stolen and a senior police officer certifies that he has a genuine belief that X stole it, the burden is thereby shifted to X to prove that he did not. This is a concept which is repugnant to any body who is accustomed to the common law system of criminal justice, which requires the Crown to prove its case beyond a reasonable doubt. 29. Nevertheless, however distasteful we may find this provision, our duty is to apply the law which is enacted by the Legislature, though we will not give any provision which has such serious repercussions on the rights of accused persons any wider interpretation than its words oblige us to do. 30. The certificate tendered in evidence asserted the officer's belief that the defendant was a member of the crew on the 25th October. As I have mentioned, at the outset of the trial, the particulars of the offence were altered so as to read "between the 24th and 25th October". 31. The evidence of P.W.11 was that the boat on which he was a passenger left Macau about 8 p.m. on the 24th October. P.W. 12 said that it left about 10 p.m. Miss Leung (P.W.13) also thought it left at about 8 p.m. Although it would be unreasonable to regard these as more than estimates of time, considering the conditions under which they set sail from Macau and arrived in Hong Kong, they suggest that the speedboat is more likely to have entered Hong Kong waters on the 24th than on 25th October. 32. At an early stage, the judge comments that the effect of the certificate was that the three accused persons were "on the 25th day of October, 1980 members of the crew of a ship registration number 3567". He adds -
33. The jury must, in our view, have been left with the impression that the certificate, and the presumption which flows from it, covered the whole period of the events which took place on the 24th and 25th October. In law, however, the certificate referred only to the 25th October. Thus it was only on the 25th October, and in relation to events which occurred on that date, that the presumption arose and a burden shifted to the defendant. 34. On the 24th October when, as I have said, it seems more likely than not that the offence was committed, a burden lay on the Crown to prove beyond reasonable doubt that the defendant was a member of the crew of speedboat 3567. 35. On the 25th October, however, by reason of the certificate, the defendant was obliged to disprove his membership of the crew of speedboat 3567. It must follow, therefore, that the jury were misled as to the burden of proof which had to be applied to the facts before them. It is only fair to observe that neither counsel appears, during the course of the trial, to have said anything about the failure of the certificate to match the particulars of the offence. Alibi 36. Where a certificate is issued under section 37K there are likely to be only two ways in which a defendant can discharge the burden which the certificate throws upon him; by showing that prior to the commencement of the voyage he did not know and had no reason to suspect that any unauthorized entrant would be carried on the ship, or by establishing an alibi. 37. It is therefore vital in cases of this nature that any alibi which is raised by a defendant should be considered fully and carefully. 38. The three defendants gave evidence of their presence in a restaurant between 8 and 9 p.m. on the evening of the 24th October. References to this are to be found in the summing-up. In addition, however, the Captain and one of the waiters at the restaurant gave supporting evidence, to the effect that the three defendants were indeed in that restaurant from about 8 o'clock until a little after 9 o'clock on the evening in question. 39. The judge did not refer to this evidence in his summing-up until the very end when he asked counsel if there were any other matters which they thought he should deal with. Counsel for the Crown, at that stage, very rightly, suggested that mention should be made of the witnesses from the restaurant. The judge thereupon said -
40. It is, of course, a long established principle, which hardly needs repetition, that the evidence put forward on behalf of a defendant must be adequately dealt with. A defendant is always entitled to have his case put to the jury. 41. The judge was not helped by the fact that both counsel appeared to have referred to the evidence of the two restaurant witnesses as bearing only on the credibility of the defendants' story as to how they had occupied the evening of the 24th October. Neither counsel, nor the judge, sought to relate the time which the defendants were said to have spent in the restaurant to the time at which the unauthorized entrants were brought from Macau to Hong Kong. Nor did they consider whether the time spent by the defendants in the restaurant, if the jury believed those two witnesses, amounted to an alibi. Could the defendants have left Hong Kong after 9 p.m., travelled to Macau, helped to bring the unauthorized entrants back to Hong Kong, and been able to get from Sai Kung to the Causeway Bay Typhoon Shelter by 2 o'clock in the morning? 42. We think that the jury should have been told that they must consider whether, if they believed that the defendants were in the restaurant until shortly after 9 p.m. they could also have taken part in bringing the unauthorized entrants to Hong Kong. 43. Taking into account the evidence of the high speed of the boat and of the vagueness of the timing given by the unauthorized entrants, the jury might well, if properly directed, have concluded that the evidence from the restaurant workers did not weaken the Crown's case. On the other hand, it would have been open to them to decide that it did. We cannot say that either conclusion would have been unreasonable and they were not asked to direct their attention to it. 44. The failure of the judge to ask the jury to evaluate the alibi evidence, not in relation to the general credibility of the defendants' explanation of how they spent the evening, but as to their ability to have been in the speedboat which brought the unauthorized entrants back to the territory was a material omission. Summary 45. Thus there were three unsatisfactory features in the trial. An insufficient direction in Turnbull(1)terms in one respect, though, as we have indicated, we would not have regarded this as a sufficient ground by itself for upsetting the conviction. The complications which arose over the burden of proof arising from the failure of the certificate to specify dates which match with those in the charge. And an inadequate direction as to the alibi defence. 46. Because of these unsatisfactory features of the trial, we have come to the conclusion that the verdict was unsafe and unsatisfactory and cannot therefore be upheld. The application for leave to appeal is therefore granted. The appeal is allowed and the conviction of the second defendant on the third count is quashed. 47. We did not order a retrial, because Crown Counsel informed us that it was unlikely that the Crown would have been able to proceed and because the appellant had already been in custody for more than a year. (1) [1976] 63 Cr.App.R. 132. Representation: O'Reilly Mayne, Q.C., John Lee, instructed by Jenkins, Oliver & Au, for the Appellant. Hagon, Crown Counsel, for Respondent. |