R. v. CHEUNG CHIN TING

IN THE COURT OF APPEAL

1994, No. 169
(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal against conviction on a question of law.

2. The appellant Cheung Chin-ting was convicted by His Honour Judge Britton in the District Court on the 30 March 1994 on three charges: (1) blackmail, contrary to section 23(1) of the Theft Ordinance; (2) theft, contrary to section 9 of the Theft Ordinance and (3) claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance. There were two defendants at the trial. The appellant was D1. All three charges related to an incident on 29 March 1993 at the Ho Fat Metal Ware Shop, G/F, No. 436 Shanghai Street, Yaumati.

3. The Crown case was established by two witnesses PW1, the proprietor of the shop and PW2, his wife. PW1 had bought the shop in February 1993 and on the day in question was preparing the premises for its opening the following month.

4. Briefly, according to the Crown case, what happened was this. The appellant (D1) and D2 entered the shop in the afternoon. The appellant claimed that the adjoining alleyway was his and that the shop obstructed a tea-stall he was proposing to set up there. They paced up and down the shop and gave a fierce appearance. D1 then said he was collecting "Tor Dei" i.e. protection money and demanded $8,000 in a red packet and said he was "14" meaning that he belonged to the 14K triad society. Eventually the appellant extracted $6,000 from PW1 and then gave PW2 his telephone and pager numbers on a piece of paper saying that if anyone should disturb them, he would fix it for them.

5. The appellant's version of event was very different. He said he ran a trading company and business was bad so he decided to make ends meet by opening a tea stall in the lane adjoining the metal shop. He had invited D2 to be a partner. As there was no water or electricity supplied in the lane they went to the metal shop to ask permission to tap into the shop's supply. He offered to pay for the cost of connection and to give PW1 $2,000 per month for the use of the facilities; as PW1 said he would think about it he gave his telephone and pager numbers on a piece of paper. He denied making threats, claims to membership of the 14K triad society or obtaining any money from PW1. On the contrary his case was that it was he who offered money to PW1.

6. In his Reasons for Verdict, the district judge said this:

"I took great care to assess all the witnesses as they gave evidence both in chief and in the sometimes lengthy cross-examination to which they were subjected. I can do no better to describe PW1 as a decent, salt of the earth working man who gave a spirited account of what happened. His wife was a timid, pleasant woman who, once she had settled down and overcome her initial nervousness, gave a lucid and calm account of what had happened. They did not strike me as the sort of people who would, as they were accused of doing, invent a wicked story to prevent two innocent men from setting up a tea stall in the adjoining lane. They could simply achieve this end by refusing to supply both water and electricity. I found them to be truthful, reliable, honest witnesses who gave as accurate a description of the events as they could given the passage of time. I did not come to the same conclusion about either defendant."

7. As is clear, the convictions depended largely upon the credibility of PW1 and PW2 on the one hand and that of the appellant and D2 on the other hand and of course on the inherent probabilities of the case. In relation to the witnesses the judge had earlier in his Reasons for Verdict said this:

"I should pause to remind myself that both defendants are of clear record. Clearly this goes in the scales in their favour as far as credibility and propensity to commit this kind of offence are concerned."

then he added:

"However, both PW1 and PW2 are also of good character and that goes to their credibility."

8. The sole ground of appeal advanced by Mr Dykes on behalf of the appellant focussed upon this last passage in the judge's reasons. He argues that this amounted to a misdirection in law. The way Mr Dykes puts his proposition is this: "The good character of the two prosecution witnesses was not put in issue in the course of the trial and was not relevant to any issue in the trial. Moreover there was no evidence before the court that the two witnesses were in fact of good character. By referring to the good character of the two witnesses, the direction as to the good character of the appellant was neutralized."

9. In support of his argument Mr Dykes relies upon this proposition of law: "As the general rule evidence of good character cannot be introduced in-chief for the purpose of showing a witness to be worthy of belief and an attack on a witness's character which does not go to his credibility will not give rise to a right to call general evidence of good character in rebuttal. (See Phipson on Evidence 14th edition Para 12-38)"

10. It is of course the function of the trial judge to form a view as to the credit worthiness of PW1 and PW2 and unless he was satisfied on all the evidence that they were telling the truth he could not have convicted. As can be seen from the passage in the Reasons for Verdict which Mr Dykes impugns, the judge made reference to the "good character" of the witnesses in weighing their credit worthiness. The question is whether by this reference he has erred in law.

11. Mr Dykes in effect makes three points: (1) The passage impugned has the effect of "watering down" or "neutralizing the Berrada direction on good character given in relation to the appellant. (2) Evidence would not have been admissible as to the good character of the prosecution witnesses, for such evidence led by the prosecutor to bolster-up their credibility would have been inadmissible. See R. v. Turner [1975]1 QB 834 at 842C and see also Wood 35 Cr.App.R. 61. (3) In any case there was in fact no evidence led as to the character, good or bad, of PW1 and PW2.

12. As to the first point, the watering down or neutralizing of the direction concerning the good character of the appellant, we do not find merit in the point, but paragraphs (2) and (3) are more substantial. It is difficult to imagine circumstances when it might be legitimate for the prosecution to lead evidence concerning the so-called "good character" of its own witnesses.

13. We bear in mind the observation of the English Court of Appeal in Richardson [1969]1 QB 299 at 305 that evidence to impugn a prosecution witness' "general reputation for veracity" is a process which is "ancient and is used with exceeding rarity". Such a rule was based upon a time when society was local and static and "general reputation for veracity" might have had some meaning. It seems difficult to apply such a rule to the mobile and plural society of Hong Kong of today. In our judgment such a rule would have no place in a modern trial.

14. In this case, any attempt to lead evidence concerning the good character of PW1 and PW2 would and should have been stopped by the trial judge. It must follow from this that the judge's reference to PW1 and PW2's "good character" was a misdirection. The real question, in our judgment, is whether, in these circumstances, the proviso to s83(1) of the Criminal Procedure Ordinance might nevertheless be applied, on account of the fact that in the result no miscarriage of justice has actually occurred.

15. The stark reality in this case is this. Either PW1 and PW2 were essentially telling the truth or else they were inventing "wicked lies" to prevent the appellant from setting up a tea stall in the adjoining lane. The inherent probabilities strongly leant in favour of PW1 and PW2's version of events.

16. The judge had subjected their testimony to close examination. In our judgment there is no danger here that the unfortunate reference to the "good character" of the witnesses might have deflected the judge from his essential task of properly weighing the evidence nor is there any danger that the judge had failed in fact to give proper effect to the good character of the appellant when the judge considered his testimony. In these circumstances whilst giving effect to the point of law we are satisfied that no actual miscarriage of justice has occurred and applying the proviso to s83(1) the appeal is dismissed.