Shishir Kothari t/a Ko Jewels Trading Co v. Gilman & Co Ltd

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 48 OF 1971

(ON APPEAL FROM O.J. ACTION NO. 1915/70)

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Coram: Full Court (Briggs, Huggins and Leonard, JJ.)

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JUDGMENT

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Leonard J.

1.  This appeal turns entirely on questions of fact. There are two facets of the evidence which I consider to be of fundamental importance, and as to which I have the gravest suspicion. The first is that relating to the cords with which the respondent was allegedly bound and the second that relating to the wounds on his chest and left arm. In view of the onus placed on the respondent by the pleadings of proving on the balance of probabilities that he was in fact robbed. I find it necessary to ask myself “if it appears unmistakably from the record that in reaching the conclusion that the respondent had been robbed the learned trial judge had not taken proper advantage of having seen and heard the witnesses or had failed to appreciate the weight and bearing of circumstances admitted or proved.”

2.  The evidence as to the cords presents a conflict between witnesses – between Mr. Li whose evidence was taken de bene esse and Inspector Ferrige.

3.  Mr. Li swore that he found the respondent in the bathroom of his flat bound hand and foot with cords and cotton material and gagged. He first removed the gag prising open the knot with a fruit knife. He then, having called the police, cut the cords leaving some knots in them. If his evidence is accepted it is clear that the knots in the cord might have been few for although he said there were “quite a number of knots” he described the body of the respondent as having been “bound round and round by those venetian lines”. He was, one must remember, only a boy of 18 at the time he gave evidence but judging from the record of his evidence (which was taken de bene esse) he does not appear to have been shaken nor to have contradicted himself in cross-examination. He was quite definite that after he had freed the respondent “only some of the knots” were still there. He was not, however, clear whether knots were still on the cord he took from the respondent’s legs although he cut it. There was evidence that the cords were untouched prior to Inspector Ferrige’s arrival at the premises and Inspector Ferrige was quite definite that when he came to the premises there were no knots in the several pieces of cord which he found in the bathroom. Photographs taken of the cords in the bathroom were of no assistance for it was not clear at what stage they were taken and the cords were undoubtedly used in an experiment to tie up a detective at some time. In evidence the respondent did not commit himself as to whether there were knots on the cords after he had been freed. As to this he said :

“As I said when they tied me up, there were knots many knots on the back of me and after Mr. Li cut my bonds, when he cut the cord and the cloth I had not looked back to see whether there were knots on the cord or on the cloth”.

On the question the learned judge observed :

“an unexplained contradiction in the evidence relates to the cord with which the plaintiff was bound. It was the evidence of Mr. William Li that after he had cut the cord, some knots remained in it. A police corporal, ......... testified that nobody touched the cord before Inspector Ferrige’s arrival and yet Inspector Ferrige says that when he first saw the cord there were no knots on it. This contradiction has remained unexplained and I can only assume that one party or the other was mistaken in regard to the presence or absence of knots in the cord.”

4.  The learned judge did not see Mr. Li. He did, however, see Mr. Ferrige and he clearly entertained the possibility of Mr. Ferrige having made a mistake but could not make a finding on this point. In the absence of a finding that Mr. Ferrige was mistaken or lying on this question I am left with no more than grave doubts as to whether there was a robbery.

5.  The second and more important point tending to show that there had been no robbery lay in the nature of the wounds suffered by the respondent. There were photographs of these exhibited and evidence concerning them was given by Dr. LEE Wee-soon. He said there were several superficial irregular scratch marks in the chest and three almost parallel scratch marks quite close together on the left shoulder. They were caused by a sharp instrument but could not have been caused by scratching with finger nails. It appeared from the photograph that those on the chest were horizontal, those on the arm vertical. It was the evidence of the respondent that these injuries were caused in the course of the robbery. His evidence-in-chief on the point was as follows :–

“At that time the other man was in the sitting room. When I picked up the telephone that same man came and snatched the telephone from my hand and let it drop and let it hang. He suddenly drew out a knife from his coat pocket and started swinging.

Q. : And started what?

A. : And started swinging the knife. Again we had a struggle there and during this struggle the knife hit me a couple of times on my left shoulder then on the high part of the chest on the left hand side. The other man from behind came and pushed me hard so that I was in the grip of the tall man. He kept his knife near my throat and told me that ‘Now, if you don’t stand up or if you scream or shout I will kill you.’ I was very frightened and then I gave up the struggle .....”

6.  After a very lengthy cross-examination concerning his account books he was questioned about a statement made to the police. The relevant passage of his evidence reads as follows :

“Q. : .... ‘I went near him guarding myself trying to snatch the knife from him’ Did you do that ?

A. : Yes, I did.

Q. : ‘During the struggle he struck me four or five times’?

A. : Yes please.

Q. : How did he strike you? With the knife, or his fists or what?

A. : No, he was swinging the knife. I was facing the safe ... after snatching the telephone down he drew out the knife so I had to cross the table and I went near my table on the left hand side and by that time he was near the safe and he drew out the knife near the table, and he had a knife at that time near the safe and he was swinging it and with my left hand I was trying to take the knife from him and during that struggle he struck me four or five times.

Q. : With what ?

A. : With the knife.

Q. : So that knife actually contacted your body and cut you.

A. : Yes please.”

When questioned about the photographs showing the scratches he said :

“Q. : Turn over the next one –you see these marks here on your arm, your left arm, is it your left arm or your right arm ?

A. : That is the left arm.

Q. : What are those ?

A. : These are knife marks.

Q. : These are knife wounds, you are certain of that ?

A. : Yes please.

Q. : You could actually feel the knife cutting you ?

A. : I wouldn’t say cutting me but brushing me.

Q. : In a struggle of that nature where you say one man was – what was the term you used ?

A. : Swinging.

Q. : Swinging a knife and you struggled with him, you got off very lightly, didn’t you ?

A. : I think the man who was handling the knife was very good at it and he wanted to frighten me and not to hurt me.”

7.  Judging from the photographs, it seems to me that the horizontal scratches on the chest and the parallel vertical scratches on the left arm, if inflicted during the course of a struggle with the intention to frighten and not to hurt would have required a delicacy of touch worthy of an expert surgeon.

8.  The respondent having been examined at the Casualty Department of Tang Shiu Kin Hospital and treated for a bruise on his chest and the several irregular scratches on the chest and left arm, the forensic pathologist Dr. Ong was summoned by the police to the respondent’s flat where the respondent was being questioned by the police. Dr. Ong asked him whether he wanted to be examined and he refused to be examined by Dr. Ong. He was not cross-examined as to the reason for this refusal but Inspector Ferrige when questioned by the court concerning it, said :

“He said he had already been examined by a doctor at Tang Shiu Kin and it was not necessary for him to be examined again.

Q. : Does that sound to you to be a reasonable rather than an absurd refusal ?

A. : Yes, my Lord.”

It may well have been a reasonable refusal. However, I should have been glad of the assistance of the evidence of Dr. Ong as to whether those injuries resembled any that he had seen in his vast experience of knife wounds caused in a fight. Having seen the photographs and read all the evidence concerning them I find myself well nigh irresistibly driven to the conclusion that they were not inflicted in a struggle.

9.  The learned trial judge does not in his judgment comment on the nature of the wounds (other than to note that they were superficial scratches which could not have been caused by the respondent’s own finger nails) nor does he seek to make any deduction from their nature. This was perhaps because counsel for the appellant appears to have cross-examined at great length on the collateral issue of the respondent’s accounts and capital position and to a very restricted extent on what was the essential question namely was the respondent the victim of a robbery ?

15.  Adapting the words used in Watt v. Thomas^([1]) I ask myself did the learned trial judge fail “to appreciate the weight and bearing” of the evidence as to the wounds and cords when coupled with the story of the robbery as given by the respondent ? The learned trial judge had the great advantages described by Lord Thankerton as “sometimes broad and sometimes subtle” which come from hearing and studying the witnesses. In this case he had indeed ample opportunity for studying the respondent (he was cross-examined for almost 2 days for the most part on collateral issues). For my part I viewed the evidence of the wounds and cords with such suspicion that I have taken the unusual course of discussing the matter with the learned trial judge as I feared that his attention might have been diverted from a critical assessment of the wounds shown in the photographs and such medical evidence as there was by the manner in which attention was focused on inessentials in particular on the collateral issue of the respondent’s bank books. This fear is, I learn, unwarranted. He was quite satisfied on the evidence of the plaintiff that the robbery had in fact taken pace. He had advantages which I had not had. In all the circumstances I do not consider I would be justified in substituting my judgment on a pure question of fact for his and would dismiss this appeal.

Mr. A. Zimmern (Deacons) for Appellant.

Mr. Mills-Owens (J.S.M.) for Respondent.

([1]) (1947) A.C. 484