Ma Wai-shuen and Others v. The Queen

CACC000949/1978

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Coram: Huggins and Pickering, JJ.A., and McMullin, J.

Date of Judgment: 11 May 1979

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JUDGMENT

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Huggins, J.A.:

1. The main issue with which it is necessary to deal in this judgment is whether the learned District Judge has shown that he properly evaluated the evidence before him.

2. The five Appellants were charged on four charges of conspiracy. The judge, having concluded that all the charges were so closely connected that they could not be held to be separate and distinct charges, convicted the Appellants on the first charge and acquitted them on the others. The conspiracy alleged in the first charge was that they would solicit an advantage from a man called Wong Chi-wing as an inducement to or reward for or otherwise on account of the last three Appellants' performing or abstaining from performing their duty as prison officers in relation to a prisoner named Chau Wing-kwong, who was related to Wong Chi-wing. The 1st Appellant was formerly a prison officer and had left the service during the period covered by the alleged conspiracy. The 2nd Appellant was a prisoner in Chi Ma Wan Prison, where the conspiracy is said to have originated. Wong Chi-wing, the victim named in the charge, was himself another prisoner until his release, which appears to have been on the same day as that on which the 1st Appellant was discharged from the Prison Service.

3. There was evidence that the 1st, 3rd, 4th and 5th Appellants all at various times solicited money from Wong Chi-wing and threatened that harm might come to Chau Wing-kwong if it was not paid. The 2nd Appellant was not directly concerned in the solicitation, and, subject to the main point, it will be necessary to consider whether there was sufficient evidence to connect him with the conspiracy. The defence was that the money sought and obtained from Wong Chi-wing was a loan: the 1st Appellant said it was a loan for his own purposes, whilst the other Appellants said it was borrowed on behalf of a firm in which they were all interested.

4. On any view the Reasons for Verdict were unhelpful and gave no indication whatever of the nature of the case for the prosecution or of the defence: they were little more than that the learned judge believed the prosecution witnesses, disbelieved the Appellants and thought the only inference which he could draw from all the evidence before him was that the Appellants were guilty. That is a formula which could be applied to almost any criminal case where a defendant is convicted and does not here constitute a sufficient "short statement of the reasons for the verdict" within the meaning of s. 80 of the District Court Ordinance. There may be very simple cases where the evidence is so direct that nothing more needs to be said, but it will not do where the existence of a conspiracy has to be inferred from the conduct of the defendants on several occasions. It has been said many times by appellate judges in Hong Kong that a judge must make it apparent that he has made full and fair evaluation of the evidence. This is particularly important where one or more of the elements of an offence have to be inferred, because unless one knows precisely the primary facts from which the inference is drawn one cannot be sure that the inference is justified. It is not enough that it should be possible to show that there was evidence from which the inference could properly be drawn, because the inference may in fact have been drawn from evidence which would not justify it.

5. The question remains whether in the present case there is any possibility that the judge erred in his evaluation of the evidence. Counsel for the Appellants has been constrained to concede that there was no inconsistency in the evidence given by the prosecution witnesses, so that it was open to the judge to say that he believed them all. Her complaint is that he may not have appreciated the quality of their evidence, since he made no mention of the fact that Chau Wing-kwong was a person of known bad character and that Wong Chi-wing delayed in making to the authorities a report which it was clearly his duty to make. These were, however, matters which he could hardly have overlooked even if both counsel had not mentioned them shortly before he delivered his verdicts. We think it is going too far to suggest that Wong Chi-wing ought to have been regarded as party to the conspiracy, so that it was incumbent on the judge to indicate that he had warned himself of the danger of acting upon the uncorroborated evidence of a witness who was "in the nature of an accomplice".

6. The strongest point made on behalf of the Appellants was, perhaps, that the judge did not mention the fact that four of the Appellants each advanced the story about a loan in a statement to the police soon after his arrest, when there was no opportunity for them to agree upon a fabricated defence. It was, however, so unlikely that Wong Chi-wing would voluntarily have entered into a loan transaction in the circumstances alleged that we think the failure to mention this aspect of the case cannot be taken as demonstrating that the judge failed to evaluate the evidence. We were taken through the most important parts of the evidence and we are driven to the conclusion that the evidence for the prosecution concerning the existence of the conspiracy was, as Mr. Cahill submits, overwhelming, as was the evidence implicating all the Defendants with the possible exception of the 2nd Defendant. The evidence against the 2nd Defendant was, of course, less direct and he was linked to the conspiracy principally by the fact that in a conversation with Wong Chi-wing he did not, when asked, deny that he was party to the attempt to obtain money from Wong, and that he told Wong he gathered the others would refuse to sign an I.O.U. It is submitted by Miss Tam that that does not tend to establish his knowledge that the money was being demanded with menaces, because he might have thought the refusal to give a receipt would be based on the fact that the 2nd, 3rd and 4th Appellants, as prison officers, were not allowed by the regulations governing the conduct of Government servants to accept a loan in excess of $500: if that were correct, the rest of the evidence against the 2nd Appellant was hardly conclusive. Wong Chi-wing passed to the 2nd Appellant a packet of cigarettes from the 3rd Appellant with the message that the 1st Appellant had asked the 3rd Appellant to look after the 2nd Appellant. Upon his release Wong Chi-wing was met by the 1st and 2nd Appellants at the ferry pier and the 2nd Appellant was present when Wong Chi-wing promised the 1st Appellant to ring him up. Later the 1st Appellant told Wong Chi-wing that the 2nd Appellant would contact him, and the 2nd Appellant did so by telephone: he said he did not want to get in touch with Wong Chi-wing but was urged to do so "by them". He asked Wong Chi-wing to spare half an hour to meet him. By arrangement they met and the 2nd Appellant said to Wong Chi-wing: "they want $15,000". Wong Chi-wing told the 2nd Appellant that the 2nd Appellant "had nothing to do with it". It was at this meeting that the 2nd Appellant said he gathered that no I.O.U. would be given. Finally, the 2nd Appellant was driving the car when Wong Chi-wing handed over the money to the 1st Appellant and said: "... after I've given it to you, treat it as for watching my younger brother in there ...... here's $11,500. O.K.?" The 2nd Appellant's evidence which was disbelieved was that he never made the alleged remark concerning an I.O.U. and that he thought the conversation in the car was ambiguous. In respect of this Appellant the real issue is whether the evidence justified the inference of guilt and on consideration we think it did.

7. It was unfortunate that our task was made more difficult in this case by a failure to include in the record a copy of the Summary of Facts which had been placed before the District Court. This is not the first case in recent weeks where a Summary of Facts has been omitted and we would remind those who certify the papers as being a true copy that it is their duty to ensure that the papers are complete.

8. The applications for leave to appeal against convictions must be dismissed.

11th May 1979.

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Coram: Huggins & Pickering, JJ.A. & McMullin, J.

Date of Judgment: 11 May 1979

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JUDGMENT

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Pickering, J.A.:

9. Whilst we have no wish to encourage prolixity in Reasons for Verdict - and have indeed had recent occasion to complain of this repeated vice in the Reasons of another particular District Judge - yet there are limits to the succinct. In the present case the evidence, oral and written, and the submissions ran to almost two hundred typed pages yet the Reasons for Verdict And Sentence occupied one and a half pages and contained no reference whatever to the facts of the case. This is the second occasion within approximately a week that this Court has been faced with Reasons for Verdict from this same judge which contained no summary of the facts of the offences. In that former case the file ran to four hundred and twenty-four pages. Such failure to refer to the facts compels the members of this Court to study the whole of the evidence relevant and irrelevant, a process which would be physically impossible were all Reasons for Verdict prepared without some indication of the facts of the case. It is essential that judges preparing Reasons for Verdict appreciate that the Court of Appeal comes fresh to each case and needs to be informed, without prolix verbatim repetition of the evidence but with an adequate indication of the factual background, of what the case is all about. In the present case the Reasons for Verdict state that "the evidence adduced by the Prosecution showed clearly the part played by each accused" in the conspiracy alleged but gave no hint as to what that part was.

10. Still more important is it that the Reasons for Verdict should make it apparent that an evaluation of the evidence has been made. In Reg. v. Lam Tin-chung⁽¹⁾ the Full Court 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 simple 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 the 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."

11. In that case the Court held that it would be unsafe to allow the conviction to stand.

12. The terseness of the Reasons for Verdict in the present case renders apt some observations of Rigby, S.P.J. (as he then was) in Cheng Kam-man v. Reg.⁽²⁾ where he said:

"I feel bound to say that in a serious charge of this nature involving a man's freedom and liberty, one is entitled to expect that some attempt will be made by the magistrate trying the case to sift and analyse the evidence given and the law applicable to the facts, and that such evidence will not be summarised in a mere general expression of belief of the prosecution witnesses and disbelief of the defence. However, despite these observations, accepting the magistrate's finding that he believed the evidence of the complainant and his mother, I am fully satisfied that there was evidence upon which the magistrate could properly find the appellant guilty of the offence of demanding (and, in fact, obtaining) money with menaces."

13. Whilst I recognize that it is not always easy for a judge to give a reason for belief or disbelief of a particular witness (see Law Keung v. Reg.⁽³⁾) and that it is not necessary for a District Judge to set out all his mental processes in his Reasons for Verdict (Godber v. Reg.⁽⁴⁾) it was highly desirable in the present case that more of those mental processes should have been revealed than were in fact condescended to It may serve to illustrate that undoubted fact if I set out the totality of what was said by the learned judge as to his actual reasons for conviction bearing in mind that this was not preceded by any reference whatever to the facts of the case or even to the nature of the charge:

14. That was all and in court, so far as the record reveals, the judge had given no reasons for his finding of guilty so that we could derive no help from that source. The verdict was not unnaturally attacked upon the ground that the judge had not made any or any proper evaluation of the quality, effect and weight of the evidence. Certainly the learned judge is not seen so to have done. As I understood Miss Tam, for the Appellants, she did not however seek to argue that there was no evidence upon which the verdicts of guilty could have been reached and a painstaking review of much of the evidence by Mr. Cahill, for the Crown, persuades me that the verdict in each case, though arrived at by a route outlined far too starkly was, unlike that in Lam Tin-chung⁽¹⁾, a proper verdict and that, despite the shortcomings of the Reasons for Verdict, justice and the public interest require that the appeals of these four former prison wardens and one former prisoner who conspired to solicit an advantage from another former prisoner on account of three of them performing or abstaining now performing acts in their capacities as prison officers, should be dismissed.

Representation:

Miss M. Tam (Foo & Li) for 1st - 4th appellants.

Miss M. Tam (H.M. So & Co.) for 5th appellant.

Cahill for Crown/respondent.

(1) (1970) H.K.L.R. 105.

(2) Cr. App. 1969 No. 426.

(3) Cr. App. 1972 No. 625 (unreported)

(4) (1975) H.K.L.R. 326.