R. v. FONG Chee-kin and Another

IN THE COURT OF APPEAL

1992, No. 327
(Criminal)

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J U D G M E N T

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Mortimer J.

1. These two applicants were charged on the same indictment and each convicted of separate offences of possession of forged banknotes. The conviction was on 28th July 1992 in front of His Honour Judge Jackson in the District Court. Each was sentenced to 5 1/2 years imprisonment.

2. The applicant Fong (D2) was found guilty of having counterfeit notes United States dollars to the value of $180,000 plus, and Chen (D3) had counterfeit notes to the value of $200,000 plus. The applicants are residents in Fiji, they were arrested at Kai Tak Airport when waiting for planes. Their eventual destination was Fiji. Fong was seen first taken to the baggage room and when his luggage was searched, the counterfeit notes were found inside. Chen (D3) was not in possession of luggage at the time. When he was approached a luggage receipt was found on him and in a locker was a suitcase and in the suitcase were the notes hidden in the blanket. The two applicants denied that they knew that their suitcases contained the counterfeit notes.

3. Part of the evidence was that the two applicants had met up with another man who had earlier pleaded guilty to a similar offence, and that they had stayed in the same hotel with him. D2 had been to the PRC with him before the applicants were arrested at Kai Tak. At trial, most of the evidence was agreed and put before the judge in the form of witness statements, but some of those witnesses were called to give evidence so as to be cross- examined. Both the applicants had made cautioned statements which were also before the Court. D2 chose to give evidence on his own behalf. D3 chose not to.

4. In his Reasons for Verdict, the judge reviewed the evidence in front of him with some care, and came to the conclusion that upon the whole of the evidence before him that both offences against D2 and D3 were proved beyond reasonable doubt.

5. The applicants seek leave to appeal against that conviction and through Counsel, D2 submits that the judge failed in his Reasons for Verdict to give himself a direction about the use to which he was putting the applicants' lies. It is said that he is required to give himself certain essential directions, and that he failed to do and in that respect the reasons are flawed.

6. Mr. Grounds relies in particular upon a passage on p.20 of those reasons, where the judge says "I listened carefully to all that D2 told me in evidence and I have no hesitation in saying that, having observed him to give that evidence, I reject it totally as being wholly self serving and untrue". And then "It does not of course follow from that fact that I must therefore find him guilty of the offence of which he is charged". From that Mr. Grounds submits that it is not clear to what use the judge was putting his finding that this applicant had lied, and that in those circumstances, he should have fully set out a 'Broadhurst' direction to make the matter clear beyond a peradventure.

7. For that submission, he relies upon a decision of this Court HUI Lap-keung & others [1989] 1 HKLR 261. At 265 C Silke V-P said this:

"We must therefore assume that a judge does have the rules in mind unless it be shown clearly to us that he has failed to treat the matters complained of in the manner which he should. However, when a District Judge fails to be seen to give himself essential directions, however elementary they made may be an appellant court will naturally scrutinize that which he does say in his Reasons for Verdict with particular care."

8. In that passage, the Vice-President is not to be taken to have been laid down any rule that all essential directions have to be set out by a District Judge in accordance with his duty under S.80 of the District Court Ordinance, unless there are good grounds for finding from the rest of his reasons that he was ignoring an essential direction.

9. We were also invited to consider the way in which this court approached a direction from a judge to a jury in YIP Wai-kwong [1989] 2 HKLR 525. With respect the circumstances in that case were wholly different from this.

10. Was it necessary in this case for the judge to set out what is commonly called a 'Broadhurst' direction to indicate how he was approaching his decision that the applicant had lied? There is nothing in the judge's reasons which indicate that he was in any way relying upon lies linked without other matters as proof of guilt. He makes the matter quite clear in the next paragraph, when he says:

"Upon the whole of the evidence before me I have considered whether - both in the case of D2 and in the case of D3 (who did not give evidence) - I can properly draw an inference (and an inescapable inference) of that of knowledge of the presence in their respective suitcases of forged banknotes."

11. He goes on to say:

"In the case of D2 I can and I do."

12. The circumstances in which it became incumbent upon the judge to consider a 'Broadhurst' direction, simply did not arise in this case. It is well laid down by this Court in CHEUNG King-kwong [1991] No.583 (unreported) that there is no rule which requires a judge to invariably give such a direction. MacDougall J.A. said in that case:

"There is no rule which requires the judge invariably to give such a direction whenever there is a clash between the testimony of a prosecution witness or witnesses, and that of an accused or what he said in his statement to the police, or when his veracity is challenged by the prosecution."

13. It only arises when the judge is taking into account lies as part of the proof of guilt, either lies before trial or at trial coupled with other matters. So far as this ground of appeal is concerned with the greatest respect, there is nothing in it. It is an issue which has been raised on the Reasons for Verdict which is not present.

14. We turn now to the other grounds of appeal. It is said as an additional matter that because there was no direction from the judge to himself that there was a danger the applicant's lies may have been utilized by the judge to find the appellant guilty of the offence in a manner not permitted or justified by law. For the reasons which we have already set out, this was certainly not the case here and that there is nothing in that ground either.

15. Further grounds of appeal are raised in this application on behalf of both applicants. It is said that there were two issues to be decided in the case. First, whether each applicant knew that there were banknotes in his suitcase and secondly, whether he knew that the banknotes were forgeries. It is submitted that the judge failed to consider these issues in a proper order and separately and so confused the two issues into one issue, and assumed that if he concluded that each applicant knew that there were banknotes in the suitcases, it would automatically follow that each would know that the banknotes were forged.

16. This ground is perhaps more theoretical than practical.

17. At the trial, it was never suggested by anyone for one moment that either of the applicants considered or thought that they had genuine banknotes in their suitcases. The issues in theory arise. In practice however, and in common sense, the real issue before the judge was, was he sure that each applicant knew that he had in his suitcase forged notes. The judge considered this matter. He said at the end of his reasons - having dealt with D2 - "In the case of D3, I have no difficulty whatsoever in inferring that he was a carrier engaged to take in a list of items from Hong Kong to Fiji but I have given much anxious consideration as to whether I can properly infer beyond that that he knew that the items concerned were bundles of forged US dollar banknotes. I have heard no credible explanation leading to a different conclusion and accordingly, I draw that inference".

18. A judge in the District Court like juries in the High Court is not expected when considering cases to leave his common sense behind him. The judge considered the evidence in this case with great care. He considered whether he could draw inferences and he asked himself whether he could draw inescapable inferences. He rejected the explanation given by D2. D3 gave no evidence and he rejected any explanation that there was from D3 in other respects, and came to his conclusion that that he could draw the inference that each well knew what was in the suitcases. In this respect, the judge's reasons are unassailable.

19. There are further grounds put forward in relation to inferences that may or may not be drawn properly by the judge. With the greatest respect there is nothing in those points either.

20. In these circumstances, leave to appeal in the case of each of the applicants is refused and this application is dismissed.