Fung Tat-ko and Others v. The Queen

CACC000009/1976

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 11th March, 1976.

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JUDGMENT

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1. The second and third appellants were convicted of one offence of impersonating a police officer, one offence of blackmail and two offences of theft and were each sentenced to terms of imprisonment totalling two years. The first appellant was convicted of handling stolen goods and was sentenced to six months' imprisonment, the sentence to be suspended for two years.

2. The second and third appellants appeal against their conviction and sentences; the first appellant appeals against his conviction only.

3. This is a most unusual case. The magistrate commenced hearing the case on November 15th, 1975. On that date he heard the evidence-in-chief of one CHAN Pak Lun, who was the most important witness for the prosecution and the complainant. At the end of the day the magistrate adjourned the case until November 18th.

4. On the morning of the 18th before the resumption of the case, Chan Pak Lun died.

5. Counsel for the second and third appellants urged the magistrate to reject the evidence given by Chan Pak Lun in chief on the ground that his death had deprived his clients of their right to cross-examination.

6. The magistrate rejected this submission and continued the case. Various witnesses were called. In addition, a cautioned statement taken from each of the second and third appellants was admitted into evidence. And all three appellants were convicted.

7. In his "Statement of Findings" the magistrate referred to the fact that the evidence of Chan Pak Lun had not been tested by cross-examination and stated that he "gave weight to this factor".

8. The sole ground of appeal is that the magistrate was wrong to have admitted the evidence of Chan Pak Lun, because it had not been tested by cross-examination. It is obvious from the record that the magistrate relied on all the evidence given in the case including that of Chan Pak Lun when convicting the appellants.

9. This matter was gone into with great thoroughness by Mr. Sedgwick who appeared for the appellants, and we are most grateful to him for drawing the authorities to our attention.

10. Many cases were quoted for the proposition that an accused person must have a full opportunity to cross-examine a witness who testifies against him.

11. The case of R. v. Doolin⁽¹⁾ was also brought to our attention. This is reported at page 123 of Jebb's "Cases relating to the Criminal and Presentment Law". This report deals with cases which were reserved for and decided by the twelve Judges of Ireland from May 1922 to November 1940. The report is written in oratio obliqua.

12. This was a trial for the offence of burglary and the headnote in the report reads as follows:-

"Where a witness, after having been examined for the prosecution, fainted shortly after the commencement of his cross-examination, so as to render it impossible for him to give any further evidence: Held, by seven judges against five, that a conviction upon such evidence as had been already given by this witness, taken together with the evidence of other witnesses, was good."

13. The report also contains the following passage at page 124:-

"They (seven of the Judges) thought that the evidence having been legal evidence when given, was legal evidence throughout, and could not be rejected or withdrawn from the consideration of the jury, because an accident had prevented a cross-examination; and that the only effect of this should be, that the Judge should call the attention of the jury to this circumstance, and make such observations as he might think fit, respecting the caution to be observed in consequence of the fatality."

After the court had decided that the conviction must stand the case was again referred to the twelve Judges by Lord Plunket, the Lord Chancellor of Ireland. The prisoner had been sentenced to death and the Load Chancellor apparently could not decide whether that sentence should be carried out.

14. The Bench on this occasion was slightly differently constituted. But again it was held that the conviction was proper by seven judges against five.

15. At pages 127 and 128 this passage occurs -

"They (the seven Judges) held, that the evidence being legal when given, and being at the utmost only incomplete, by reason of the interruption of the cross-examination, did not stand on the same ground with evidence which, in the further progress of a trial, became illegal by something then appearing, as for instance, the incompetency of the witness; for that in such case, if the objection had appeared in sufficient time, the witness would not have been examined. That to establish such a rule as the withholding of the evidence in this case, would not only be mischievous to the public, but might be prejudicial to the prisoner; for it would follow from it (as was admitted by those who contended for such a rule), that if a witness for a prisoner after concluding his direct examination, were to die before cross-examination, and his direct evidence to be expunged in consequence, the prisoner would be deprived of evidence which might have produced an acquittal."

16. Mr. Sedgwick also referred us to section 16(1) of the Magistrates Ordinance (Cap. 227). This reads as follows:-

"16. (1) The party against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto and to have the witnesses examined and cross-examined by him or by counsel on his behalf."

17. We do not think that this section helps the appellants. It is a statement of the rule at common law that a party has the right to conduct his case personally or by counsel. We do not think that it goes further than that.

18. We think that R. v. Doolin⁽¹⁾ should be followed. Where through no fault of the parties a witness dies before his evidence is tested by cross-examination, that evidence is admissible to assist in reaching a verdict provided that the magistrate or judge trying the case properly warns himself of the fact that there has been no cross-examination. The lack of cross-examination in such circumstances concerns the weight to be attached to such evidence not its admissibility.

19. In the present case this is what the magistrate did. There was other evidence which tended to corroborate the evidence of Chan Pak Lun and to convict the appellants with the offence for which they were tried.

20. The appeals against conviction are dismissed, and as we see no reason to reduce the sentences passed on the second and third appellants, their appeals against their sentences are also dismissed.

11th March, 1976.

Representation:

Sedgwick (D.L.A.) for appellants.

Penlington for crown.

(1) Jebb 123.