THE QUEEN v. YUEN CHI HUNG (D1)

IN THE COURT OF APPEAL

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JUDGMENT

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Barker, J.A. :

1. This is an application for leave to appeal against convictions on three charges, the first being that of using an instrument with intent to procure a miscarriage, secondly, a conspiracy to procure a miscarriage and thirdly, a similar offence, conspiracy to procure a miscarriage.

2. The matter came on before Barnes, J. and a jury. In the first count, it was alleged that the applicant carried out an abortion on a fourteen year-old girl. In the second count it was alleged that there was an agreement to which the applicant was a party whereby he should carry out an abortion on a pregnant woman and the third count was in identical terms.

3. What is complained of in the main in this case is a direction given by the learned judge to the jury which is in effect a direction on similar fact evidence:

"You must also consider the case, that is each count in the indictment separately, and each defendant on each count separately. In this case there is an exception to that in that there is some evidence on other counts which is relevant to counts other than the one that it is directly related to. Ordinarily under our law, the prosecution cannot adduce evidence on the commission of any offence other than the one with which the particular defendant is charged. And even in a case such as this where the 1st defendant is charged with three counts, ordinarily you would have to consider the evidence as it relates to each count separately, and not use the evidence, say, on count 2 in arriving at a decision about count 1.

 

But there is an exception in this case because the prosecution are asking you, for instance, in connection with count 1, to consider certain parts of the evidence of count 2 and count 3 in relation to count 1. Now, ordinarily that is not allowable. "

And the judge goes on to give a perfectly proper direction which says, "you must not use this evidence to show there was a propensity to commit this kind of crime. " But then the judge adds:

"In this case, the evidence is allowed to be put before you because of its intrinsic nature. If you accept the evidence of the three women - the one who said she did have an abortion, and the other two who said that they made arrangements to have an abortion done by the 1st defendant and by inference in regard to one of them, then the position is this: we say in law that if you accepted that, then mustn't they all be telling the truth if they haven't put their heads together to concoct this story?"

Until then the judge is telling the jury in the plainest terms that they are entitled to use the facts on one count in support of the facts on another count and so the question is raised in stark form - is this similar fact evidence which was properly before the jury? Mr. Bruce in a submission to us which was as succinct as it was forceful has said, "Yes, the judge was quite right and he lists what he says are the similar facts which go to show that this evidence was properly admitted and properly before the jury. He says, first, all the women were pregnant; secondly, everything was done through intermediaries though not the same one; thirdly, that the people were taken to the same premises; fourthly, for the same purpose; fifthly, in each case there was an agreement and money was paid in advance and lastly, there was concern that each of the customers were not to know the address. So Mr. Bruce says that taking these all into consideration, there is an underlying unity and he says, quoting from an Australian case of Sutton⁽¹⁾ that it would be an affront to common sense to forbid the jury to use this evidence in this way.

4. In the end, it comes to a matter of impression as to whether evidence falls on one side or the other of the border line but having carefully considered the matter we are firmly of the view that these facts did not amount to similar fact evidence. It is the experience of this court that abortions are frequently arranged through intermediaries. It is frequently occurs that money is required in advance. Of course they are taken to the same premises for the same purpose because otherwise they would not be wanting an abortion. Various phrases have been used in the cases to describe what amounts to similar fact evidence and it is right to remember that these phrases are no more than a label but I, for my part, am happy to adopt the phrase used by Lord Salmon in The Director of Public Prosecution v. Boardman⁽²⁾ at page 462 where he says:

"It has however never been doubted that if the crime charged is committed in a uniquely or strikingly similar manner to other crimes committed by the accused the manner in which the other crimes were committed may be evidence upon which a jury could reasonably conclude that the accused was guilty of the crime charged. "

In our judgment the facts in this case do not disclose matters which were uniquely or strikingly similar. They were unfortunately in this kind of case common place. For these reasons, we are of the view that this conviction cannot stand. Accordingly, we allow the application for leave to appeal against conviction, we quash the conviction and set aside the sentence.

(1)    (1983-84) 51 A.L.R.435

(2)    (1975) A.C.421