THE QUEEN v. TONG KWOK WAH

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H E A D N O T E

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S. 100 MAGISTRATES ORDINANCE - WILFULLY GIVING FALSE TESTIMONY - TO BE USED AGAINST LYING DEFENDANTS ONLY IN EXCEPTIONAL CIRCUMSTANCES.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 234 OF 1989

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J U D G M E N T

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1. The appellant was convicted of careless driving by Mr Britton at Western Magistrates Court. The appeal against conviction has been abandoned. The appeal is pursued however against an order made under section 100(2) of the Magistrates Ordinance fining the appellant $2,000 for wilfully giving false testimony.

2. Under this section, if it appears to a magistrate "that any witness, (which should include a defendant who gives evidence on his own behalf), has wilfully given false testimony, the magistrate may order him to pay a fine of $2,000". The section goes on to provide for various procedural safeguards, with which the magistrate properly complied.

3. The magistrate made the same order in respect of a prosecution witness, whose evidence in chief contradicted his statement to the police to such an extent that he was declared hostile. He maintained his evidence was true and that his police statement had been given as a result of 'laxity'.

4. The appellant's evidence was virtually word for word the same as that of the witness. The magistrate was entirely justified in deciding that both had wilfully lied in court.

5. Section 100 is of Victorian origin. Its purpose, counsel for the Crown suggests, was to encourage truthfulness in witnesses for whom an oath had no religious sanction.

6. It is practically never used in Hong Kong today. In A.G. v. Suen Chun-kwong [1980] H.K.L.R.  543 the respondent pleaded guilty to making a contradictory statement on oath, contrary to section 39 of the Crimes Ordinance, Cap. 200. He was charged in the Magistrate s Court with possession of heroin for the purpose of trafficking. At his trial he gave evidence denying possession of the drug. He was convicted and sentenced to two years' imprisonment. He then applied for a review of the conviction which was granted. At the reopened hearing he gave further evidence and, on this occasion, admitted possession but said that the drugs were for his own use. He was again convicted and the previous sentence confirmed.

7. It was held by the Court of Appeal that :-

"although the sentence should have been an immediate custodial sentence consecutive to the drugs sentence, the length of sentence should be purely nominal in view of the Crown's stated policy of not charging defendants with perjury where it appears that the defendant has told lies on oath in his defence."

8. Mr Bruce says that this remains the Crown's policy, but points out that section 100, unlike section 39, does not create an offence; the Crown therefore cannot intervene and stop the proceedings, which are more akin to those for contempt of court than a criminal trial.

9. I am satisfied that the magistrate had a discretion to penalise the appellant, but it seems to me that the amount of the fine was grossly excessive. I consider, particularly in view of the Crown's concession, that this section should be used against lying defendants only in exceptional circumstances.

10. The appeal is allowed and the fine reduced to one of $100.