HKSAR v. CHAN HON MAN

IN THE HIGH COURT OF HONG KONG

MAGISTRACY CRIMINAL APPEAL No. 455 of 1997

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J U D G M E N T

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Chan, CJHC:

1. The appellant was convicted after trial of three counts, namely, common assault, criminal intimidation and inviting a person to become a member of a triad society. He was sentenced to a total of 6 months 14 days imprisonment. He now appeals against conviction.

2. The prosecution's case was this. PW1 was a taxi driver. According to him, prior to 21st November 1996, he had been told on previous occasions by the appellant who was also a taxi driver not to pick up passengers at the Hong Kong Macau Ferry Terminal unless the appellant had paid him money. On 21st November 1996, PW1 was fixing his tyres at the passenger alighting zone of the Hunghom Railway Station. He alleged that the appellant came up and threatened to chop him if he occupied space there. When he argued with the appellant, the appellant grabbed hold of his clothing and punched him in the chest. PW1 then called the police. While waiting for the police, the appellant called another driver (DW2) to be a witness in the appellant's false allegation that PW1 had refused hire to the appellant. These were the events relating to the common assault charge.

3. According to PW1, on 5th December 1996, at about midnight, PW1's taxi arrived at the Hong Kong Macau Ferry Terminal and was waiting at the passenger alighting zone. The appellant's taxi stopped in front of him. The events on the 21st November was brought up. PW1 alleged that the appellant warned him that he would find someone to do something to PW1's taxi. That formed the basis of the second charge of criminal intimidation. During the discussion, the appellant demanded $366 from PW1 to join the Sun Yee On. That was the allegation on the 3rd count. The matter was again reported to the police.

4. The appellant's defence was that it was PW1 who threatened to get someone to beat him up. On 21st November 1996, PW1 even falsely accused him of having refused to hire. He had Mr Yeung as a witness.

5. The trial magistrate having considered all the evidence placed before him, accepted the evidence of the prosecution witnesses and found beyond reasonable doubt that PW1 was a reliable witness and that the charges had been proved against the appellant.

6. The appellant relied on a number of grounds. However, before the appeal, the appellant applied for leave to adduce further evidence. This took the form of an affirmation from Mr Tisara Gunasekera, who is a partner of the solicitors acting on behalf of the appellant. The affirmation deposed to the effect that it was discovered that PW1 had made very similar allegations against another person in another case, SKC 2090/97. That other person was tried before another magistrate in South Kowloon Magistracy on 20th June 1997 which was subsequent to the present conviction. In that other case, the trial magistrate, having heard the evidence of PW1, found that PW1 was not telling the whole truth, was selective in giving evidence and was trying to hide some facts. The magistrate found that it would be very dangerous to convict that other accused on the evidence of PW1. He therefore dismissed the charges against that other person.

7. In the present appeal, it was alleged that the case in that other criminal trial together with the brief facts of the case and a copy of the Reasons for Acquittal could not possibly have come into the possession of the appellant at the time of the trial in April 1997. Counsel for the appellant submitted that these further pieces of evidence were admissible, casting serious doubt on PW1's credibility. He submitted that if the learned magistrate in the present case had available before him this fact, PW1 could have been cross-examined on it, and if so, this might have influenced the trial magistrate's decision on PW1's credibility.

8. Counsel for the prosecution objected to the production of the new evidence. He argued that it was irrelevant. He also submitted that if the Court should have admitted such evidence, it would be opening the flood gate.

9. Counsel for the appellant referred to the case of Cooke (1986) 84 Cr App R 286 in which it was held by the English Court of Appeal that where the credibility of a common witness (in that case a constable) was vital and the offences and interviews in the two cases in question were closely connected, the defence in the subsequent case should have been allowed to bring out matters relating to the same officer which arose in the first case. In other words, it was held that the constable's evidence and his credibility in the first trial should have been allowed to be brought out in the second trial if the constable's credibility was vital. Counsel argued that in the present case, if the credibility of PW1 was vital, the fact that PW1 was not believed or found to be unreliable by another magistrate could have been brought before the trial magistrate and this might have influenced his decision on PW1's credibility. Counsel however admitted that this would not be possible because it was a trial which occurred subsequent to the present trial. But he referred to the case of Savin which was referred to in the case of Cooke. The extract as reported was as follows:

" Savin: The appellant's conviction of conspiracy to deal in cannabis was largely based on the evidence of two police officers. He was convicted on July 24, 1972. He gave notice of application for leave to appeal on August 21. On October 13, three persons named Salah were convicted of conspiracy in connection with the import, possession and supply of cannabis. Two of the essential witnesses for the prosecution were the same two police officers. On appeal to this Court their conviction was, on November 13, quashed. Savin was given leave to appeal on January 1, 1973, because the two police officers were being prosecuted for perjury in connection with their evidence at the trial of the Salahs. Savin's appeal was adjourned on March 2, 1973 pending the result of that trial. On November 14, 1973 one of the two police officers was convicted of perjury, the other was acquitted.

On Savin's appeal, which was heard on December 14, 1973, Nield J. giving the judgment of the Court said:

'The real case here advanced by Mr. Smout is that by reason of the conviction of Pritchard for perjury, the perjury in connection with alleged offences relating to cannabis, the verdict is unsafe and unsatisfactory. It is clear that there was at the hearing of the present case evidence apart from that of the officers, but, as I pointed out, the whole basis of the Crown's case was on the evidence of those two officers. Mr. Tudor Price appearing for the Crown admits that he does not feel able to submit that this verdict should be upheld. This Court takes the view that that is a very proper attitude and that, in the light of all the circumstances, this appeal must be allowed and the conviction quashed. An application for the costs of an abortive trial to be taxed is granted.'"

10. I have considered the similarity of the facts between the Savin's case and the present case. It would seem that in both cases, the crucial witnesses whose evidence was relied upon to convict the appellant were subsequently found to be of dubious nature. Such information on the witnesses' credibility if it can be made available would no doubt be relevant to their cross-examination and would also play a part in the magistrate's decision in a subsequent trial as to whether to believe such witnesses.

11. However, I would add a word of caution. A witness may be telling the truth in connection with one case but may not, for various reasons, be telling the whole truth in a subsequent case. This may result in the subsequent court not being satisfied beyond reasonable doubt of what he said was the truth. Conversely, a witness who has been found to be unreliable on a previous occasion may be perfectly honest and trustworthy in a subsequent case. So long as the witness is allowed to be crossed examined on his credibility and the trial judge has the opportunity to fairly assess his evidence in the light of his behaviour on the previous occasion, no injustice will be created. Hence, if it had been purely a case of a witness who was found to be not trustworthy on a subsequent (not previous) occasion, I would be reluctant to accept as relevant evidence in an appeal from a prior case that the witness was found to be telling lies or not telling the whole truth in a subsequent trial.

12. The present case is rather different. This is clear from the brief facts of the case in the second trial. In that case, PW1 alleged that the accused approached him, pushed him, swore at him and said "You'd better settle with me the case for which you sued my big brother, or I'll beat you up whenever I see you." The big brother was allegedly the appellant in the present case. In other words, it was alleged in the other case by PW1 that as a result of the conduct of the appellant, he was subsequently threatened by the appellant's friend i.e. the accused in the other case, not to testify against the appellant or to settle with the appellant. It is therefore quite clear that PW1 was testifying in the present case as well as in the subsequent case to facts which are very closely linked together. These were not separate incidents. They arose one after another and they centred around the appellant and his friend, the other accused. Both were alleged by PW1 to have threatened him. That being the case, in these rather unusual circumstances, I think the additional evidence is relevant and admissible in the present appeal. I do not accept that by admitting such evidence, there is a risk of opening the floodgate.

13. Having regard to such additional evidence, I take the view that there is a lurking doubt as to whether PW1 had also told the whole truth in the present case. This is not due to the fault of the trial magistrate. He did not know that PW1 would testify in a subsequent trial in connection with an incident which arose out of the present case. Nor would he have known that PW1 was later found to be wholly reliable. He would not have been able to assess PW1's evidence in that light. In the circumstances, I do not think I can say that the conviction is safe and satisfactory.

14. For the reasons which I have given, I would quash the conviction and set aside the sentence.

15. The appellant has been in custody for a while. The prosecution indicates that it is not pressing for a retrial. In these circumstances, I would not order a retrial. The appellant would be discharged.