HKSAR v. CHAN CHI SANG

HCMA1003/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1003 OF 1998

----------------------

-----------------------

-------------------------

J U D G M E N T

-------------------------

1. On 10 September 1998 at Eastern Magistracy before Mr Bruce McNair, Permanent Magistrate, the Appellant Chan Chi Sing, a police constable, was convicted after trial of one charge of theft. He was represented throughout the proceedings. Mr McNair sentenced him to serve 12 months' imprisonment for this offence. He now appeals against both his conviction and sentence.

2. At trial the prosecution called eight witnesses. Certain evidence was admitted under s.65C. There was no cautioned statement. The Defendant elected to give evidence.

3. The prosecution's case may be summarized as follows. The Defendant was a uniformed constable on patrol duty, with other police officers, in the area of the junction of Wing Hing Street and Electric Road around lunchtime on 30 March 1998. A wallet was found on the street by two female bank clerks who passed it to him for safekeeping. He was observed by Mir Sayaf, the 6th prosecution witness, a bank security guard, who had seen him on other occasions, to accept and pocket the wallet. He did not record the receipt of the wallet in his notebook, neither did he report the case on return to the police station. The prosecution said he stole the wallet.

4. The Appellant's case was that he was not the constable who was given the wallet. The identification evidence was self-contradictory and dangerously weak, and unreliable. The eyewitness, Mir Sayaf, had mistakenly identified him. The evidence tended to prove that the Appellant was not in the area at the material time and that he could not have been the dishonest constable. The evidence taken as a whole did not prove the case against him beyond a reasonable doubt.

5. Mr William Allen, who appears for the Appellant, has advanced seven grounds of appeal. With the exception of the fourth, all are essentially complaints that the Magistrate erred in accepting the evidence of various witnesses, particularly that of Mir Sayaf, the bank-guard, who alone identified the Appellant, and in rejecting the Appellant's defence.

6. There is nothing in these grounds of appeal. The resolving of issues of credibility of witnesses, both for the prosecution and defence, is for the trial magistrate. From the Statement of Findings, it is quite clear that the Magistrate fully understood the evidence given before him on these matters and applied it correctly. He had the advantage, which I do not have, of having heard and seen the witnesses, including the Appellant who gave evidence.

7. He was aware of the discrepancies in the evidence, and in particular that Mir Sayaf had maintained that the police officer he identified as the Appellant was wearing green summer uniform when he saw him pocket the wallet. It was the case that all officers on duty that day were wearing winter uniform in shirt-sleeves order and it was not until Mir Sayaf was corrected by the playing of the video tape of the identity parade that he accepted he had made a mistake about this. The Magistrate took this into consideration before deciding that he could accept Mir Sayaf as a truthful and reliable witness.

8. The Magistrate was aware, and he demonstrated so in his Statement of Findings, that even though he disbelieved the Appellant, the burden still lay on the prosecution to prove the Appellant's guilt on the charge.

9. I can see nothing in the Magistrate's Statement of Findings which indicates that his approach to the evidence or the case in these aspects was in any way wrong. It is not for me to substitute any view I may have on reading the appeal bundle for his view on the veracity and reliability of the witnesses and I am satisfied that the appeal cannot succeed on these grounds.

10. However, on his fourth ground, Mr Allen is on surer ground. This ground reads :

" The Learned Magistrate erred in his 'Statement of fact' at page 9 paragraph 20 to find as a fact the Appellant had 'lied' in his evidence about the route he had taken to attend No.42. The Learned Magistrate gave no reasons to show how this was a lie or just a case of 'I disbelieved the Appellant'. The Learned Magistrate erred in finding this lie to be a deliberate one and further erred in finding this amounted to corroboration when it appears from the 'Statement of fact', the Learned Magistrate was speculating as to the various times. In addition, the Learned Magistrate in reaching this conclusion did not consider the fundamental fact the Appellant's evidence regarding times was supported and/or corroborated by other prosecution witnesses as well as other evidence."

11. That very long ground of appeal is based on the following direction the Magistrate gave himself after discussing the identification evidence :

"... The defendant then carried on past PW6 and the HSB [Hong Kong Shanghai Bank], in a direction away from #42 Electric Road. The defendant attended to #42 (which was over 300 meters from Wing Fat) at either 12.24 or 12.25 hrs. and finished there at 12.35 PM. There was no evidence as to how he got there, other than the defendant's own evidence, which I rejected.

Having made this finding as to identity of the constable, I found that the Defendant had lied in his evidence about the route he took to attend #42. Considering the time constraints which presented themselves by my findings of facts, I drew the only and inexorable inference that the defendant had not taken the route he'd described to get to #42, but rather had crossed Electric Road at Wing Hong Street. I directed myself in accordance with Lucas (1981) 73 Cr.App.R. 159 C.A. I found the lie to have been deliberate and that it related to a material issue, namely, the lie, if accepted by the trier of fact, placed the defendant in a location whereby he could not have possibly been the constable who received the wallet. I reminded myself of the numerous innocent reasons which can motivate a person to lie. I found the defendant had been motivated to lie under oath out of a realization of guilt and fear of the truth.

I found that the lie constituted corroboration. I found that the defendant was a dissembling witness in whose evidence the court could not place any confidence or weight. His evidence was self-serving and contrived. Notwithstanding my findings as to the credibility of the defendant I reminded myself of the continuing heavy burden of proof on the prosecution."

12. He was wrong in finding that what he found to be the Appellant's lie constituted corroboration of the prosecution case. The law is this : lies told by a defendant, whether they be lies told in court in the course of his evidence, or lies told out of court to persons questioning him, may indicate a consciousness of guilt, and in appropriate circumstances may be relied upon by the prosecution as evidence supportive of guilt. This is seen in the English case of Goodway (1993) 4 All ER 894, where at trial the defendant admitted lying to the police about his whereabouts at the time of the offence, and those lies were used in support of identification evidence adduced by the prosecution. The English Court of Appeal held that whenever a lie told by a defendant is relied on by the prosecution, or may be used by the jury to support evidence of guilt as opposed to merely reflecting on his creditability, and not only when the lie is relied on as corroboration or as support for identification evidence, a three-fold direction should normally be given to the jury. That direction being : firstly, that the lie must be deliberate and relate to a material issue. Secondly, the jury must be satisfied that there was no innocent motive for the lie, for example, to bolster up a just cause, or out of shame, or a wish to conceal disgraceful behaviour. Thirdly, the lie must be established by evidence other than that of the witness who is to be corroborated. This is the direction advised by the English Court of Appeal in Lucas (1981) 74 Crim.App.R. 159.

13. The last requirement by its reference to "the witness who is to be corroborated" has caused much confusion. The simple fact of the matter is that before a lie can be used as in any way indicative of a defendant's guilt, it has to be first clearly established, by evidence, either that it is a lie, or the accused has to accept before the court that he has told a lie. That proposition was established in the English case of House & Meadows (1994) Crim.L.R. 682. In that case, the appellant House was convicted of unlawful sexual intercourse with two young girls, and the appellant Meadows, who was a prostitute herself, was convicted of two counts of controlling a prostitute and of aiding and abetting the unlawful sexual intercourse. The prosecution alleged that the girls had been introduced into prostitution by Meadows and that she had arranged for them to meet House, who then had sexual intercourse with them. Neither House nor Meadows gave evidence. It was argued on appeal for House that the judge should have given the jury a direction, warning them that the witnesses may have a motive for telling lies. It was argued for Meadows that the judge should have directed the jury as to the possible explanation for the lies told by her in her interview with the police, in accordance with Goodway.

14. The argument advanced at appeal was that Meadows had told a constructive lie when she told the police that she did not know House, or the ages of the girls. If the jury disbelieved her, those answers amounted to lies that the jury might deploy in support of the prosecution case and thus the situation contemplated in Goodway arose. That argument, said the court, was an artificial approach for there was no independently established lie. If the jury disbelieved what Meadows told the police, it must have been because they preferred the evidence of the two girls, in which case the outcome of the case was a foregone conclusion. Accordingly, lies played no part as a specifically identifiable feature of the case, either in the prosecution case as put, or as a matter which the jury could have taken into account separately from their determination of the main issue, which was the credibility of the two girls and a Goodway direction did not apply. The Court of Appeal dismissed the appeal.

15. The Goodway direction and the evidential effect of lies, can, therefore, only come into play where the prosecution relies on a proved lie as evidence against the accused. Before doing that, the prosecutor will have identified a particular lie on a material issue and sought to prove that it is a lie. He must do that either by leading evidence which shows clearly that the accused has lied, or by forcing the accused to admit his lie in cross-examination. This is a very specific prosecution tactic. It is one that is not needed in the majority of criminal cases in which the defence case is contradicted by the evidence of the prosecution witnesses in such a way as to make it only necessary for the prosecution to say that, insofar as the two sides are in conflict, the jury should find that the defendant's account is untrue and should not be believed.

16. The English Court of Appeal made this clear in Burge & Pegg (1996) 1 Cr.App.R. 163. There, the court stressed that the need for the direction arises only in cases where the prosecution say, or the judge envisages that the jury might say, that the lie is evidence against the accused - in effect using it as an implied admission of guilt. The direction is not needed in run-of-the-mill cases where the defence case is contradicted by the evidence of prosecution witnesses.

17. In Hill [1996] Crim LR 419, the English Court of Appeal said that a Goodway direction is not required simply because the jury may reject the evidence of an accused about a central issue in the case, because that situation is covered by the general direction on the burden and standard of proof.

18. The Hong Kong Court of Appeal in Ng Chi Wai & anor, CA No.346 of 1996 endorsed the explanation given in Burge & Pegg Mortimer JA said at pages 5 and 6 of the transcript :

"This is yet another case in which unnecessary problems have arisen because of a direction on lies. The circumstances in which a proven and material lie can support the prosecution case are rare. As this Court has said on many previous occasions, allegations of lying arise in almost every criminal case. Those allegations almost always relate to credibility and not proof of guilt. It is important to recognise that lying in a general way is not proof of guilt. Lying is relevant only to credibility. If there is the danger that the jury will be misled into thinking that lying goes to proof of guilt, the usual warning that accused persons may lie for reasons other than guilt and such lies do not prove guilt, is necessary. Where there is a clear factual issue on guilt for the jury's consideration, a direction that a lie may support the prosecution case will hardly ever be appropriate.

The rare circumstances in which a direction that a lie may support the prosecution case may be appropriate are as follows :

1. Where the accused relies upon an alibi;

2. Where the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted.

In such cases, the direction must be tailored to the case so that the material lie is identified along with the evidence of admission or proof that it is a lie. An appropriate 'Lucas' direction will also be necessary. But see the guidance in R v Burge and Pegg, with which we agree."

19. This present case is what the English Court of Appeal in Burge & Pegg termed a run-of-the-mill one. There was no proved lie by the Appellant that could be used by the prosecution as evidence corroborative, or supportive of his guilt. The Magistrate's misdirection of himself on this issue must render the Appellant's conviction unsafe and unsatisfactory. There is no proviso in Magistracy appeals. I must therefore allow the Appellant's appeal and quash his conviction. His sentence is set aside.