HKSAR v. CHEUNG MAN HONG

HCMA426/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 426 OF 1999

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J U D G M E N T

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1. The Appellant was charged together with two persons in the Magistrate Court. He was the 1st Defendant at the trial. The 2nd Defendant in the court below was charged with blackmail, claiming to be a member of a trial society, theft, and two counts of criminal damage; the 3rd Defendant was charged with two counts of criminal damage; whereas the Appellant was charged together with the 2nd Defendant on a single count of theft. The particulars of the offence of theft were that the Appellant and the 2nd Defendant in early September 1998 at Shops 1B and 2B, Waldorf Shopping Centre, Tuen Mun, New Territories North, in Hong Kong, with other persons not in custody, stole about 100 video compact discs, total value $6,000, the property of Chen Hin Wai. The Appellant now appeals against conviction that resulted after a trial before Mr Symon Wong.

2. Mr Lau, Counsel for the Appellant, raised two grounds of appeal. The first ground was that the Magistrate erred in law in allowing PW1, i.e. the victim of the theft charge, Chen Hin Wai, not to answer a number of questions on the ground of privilege against self-incrimination. The matter arose after Counsel for the three Defendants at the trial, Mr Boyton, started to cross-examine PW1. The first question raised by Mr Boyton in cross-examination of PW1 was whether PW1 sold pirated VCDs without copyright. The answer was 'yes'. Then Mr Boyton went on to ask PW1 if he had employed someone else to be at the shops to be arrested instead of himself when his shops were raided by the Police or the Customs. It was at this juncture that Mr Boyton invited the Magistrate to give a warning to PW1 against self-incrimination. The Magistrate did as requested. Thenceforth there were four questions that PW1 refused to answer :

(1) Whether he had made a false statement to the police after he admitted that two of the names of his employees given in his statement to the police were wrong;

(2) Where to find his business partner;

(3) Whether it was he or his partner who paid the employees; and

(4) What was his share of the profits made by the business every month after everything was discounted.

In fact when PW1 refused to answer these four questions, Mr Boyton did not raise any objection or make any point to the Magistrate.

3. In the Magistrate's Statement of Findings, he dealt with the privilege against self-incrimination. He said :

".. The privilege (which applies to a witness giving evidence, as in the present case) derives both from statutory provisions and common law rules. Section 10 of the Evidence Ordinance, Cap.8 provides :

'Nothing in this Ordinance .... shall render any person in any proceedings compellable to answer any question tending to criminate himself.'

In addition, there are common law rules establishing that a witness is entitled to refuse to answer questions which might tend to incriminate him. (R v Garbett (1847) 2C. & K. 474; R v Lam Chi-ming (1991) 2 HKLR 191)."

4. The Magistrate further referred to the case of R v Minihane, 16 Cr. App. R.38 to make the point that the privilege did not extend to prevent the incrimination of others. And then he went on :

"The unanswered questions, by PW1, at trial could broadly be divided into two categories, namely : (a) whether he had hired anyone, who always stationed at the shops, as scapegoat in the event of a police raid; (b) whether he deliberately misled the police, when giving a witness statement, by providing false information. I was satisfied that if PW1was compelled to answer the unanswered questions, he would ultimately place himself in danger. The nature of danger being misleading the police and exposing the structure, in detail, of his unlawful business, namely :'offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner.' I was satisfied, in the circumstances, that the objections PW1 raised were genuine; it was not an attempt to escape examination altogether or to avoid incriminating others."

5. Mr Lau relied on the case of Brebner v Perry [1961] SASR 177 where it was held that where a witness had already made an admission on a particular topic, he could not later claim privilege with respect to testimony on the same subject. That was an authority in Southern Australia where on a case stated the judge held as represented by counsel. The facts of the case were that from the prosecutor's statement of the evidence which would be given by the witness, it was to be inferred that the witness had already given a statement, or made admissions to the police, which implicated himself and the defendant in the commission of a gambling offence. When the prosecutor called the witness to give evidence, the witness objected to answer a number of questions put to him on the ground that the answers might incriminate him. It was held that on the facts, the objection to answer was not made by the witness bona fide, and that the witness was obliged to answer the questions.

6. That decision related to a witness' right to claim the privilege. The party who called him in that case objected to his refusal to answer questions. That was why when the magistrate ruled against the prosecutor, the prosecutor applied to have a case stated before the judge.

7. In our present case, when PW1 talked about his selling pirated discs and when he was asked whether he gave wrong names in the statement to the police as to his employees, he was not warned by anyone. It was Mr Boyton, Defence Counsel, who invited the Magistrate to give the warning to the witness, of course, on the basis of being fair to the witness. When the four questions that I referred to above were asked and the witness, PW1, refused to answer, Mr Boyton did not object nor make any application to the Magistrate to compel PW1 to answer those questions.

8. Apart from my agreement with the Magistrate as to the reasons why he allowed the witness not to answer questions, I am of the view that the Defence should not be allowed to blow hot and cold. Defence Counsel did not make any point to the Magistrate at the trial when PW1 refused to answer the questions. If the Defence were to be allowed to rely on the absence of answers to those questions as a basis for appeal, it would be unfair to the Magistrate and to the administration of justice. In the circumstances, I rule that the first ground of appeal fails.

9. The second ground of appeal relied on by Mr Lau is that the learned Magistrate erred in law by failing to deal with the discrepancies in the evidence between PW1 and PW2, namely PW2 did not hear the Appellant tell the youngsters to take the VCDs as deposed to by PW1. During his submission, Mr Lau also pointed out to me that there was a discrepancy as to where the VCDs, i.e. the 100 odd VCDs referred to in the charge, were stolen from.

10. PW1 told the Magistrate that some time in September 1998, the 2nd Defendant, the 1st Defendant, i.e. the Appellant, and a group of youngsters came to his shop. He was told by the 2nd Defendant to step aside. At the time PW1 was in Shop 2B. While the 2nd Defendant was talking to him, the Appellant was next to the 2nd Defendant. PW1 did not give any evidence as to the Appellant's involvement except to say that the Appellant "told the youngsters to take the VCDs. He shouted at the youngsters and asked them to take more". When the youngsters were taking the VCDs, PW1 said he was about 10 feet away from them.

11. PW2's evidence was that he was in Shop 1B when the youngsters were taking away VCDs in Shop 1B. However, in evidence he said he was not able to hear what the Appellant said. Looking at the evidence, it appears that although PW1 said he was in Shop 2B when the group came, his evidence did not specify from which shop the VCDs were taken. PW2's evidence was to the effect that the VCDs were taken from Shop 1B. It seems to me that there is no discrepancy; the so-called discrepancy does not exist. The only discrepancy seems to be between PW1's hearing what the Appellant said to the youngsters and PW2's not hearing what was said by the Appellant, and that was dealt with by the Magistrate in his Statement of Findings. The Magistrate said :

"The evidence of PW1 was that whilst he was discussing with D2 about the protection money, D1 instructed the youngsters to take away the discs. PW2 also saw the youngsters taking away the discs, but he did not hear D1 having said anything. Bearing in mind that PW1 was asked by D2, to step aside to talk and D1 was, at some stage during the discussion, next to D2. It was not surprising that PW2 was unable to hear what D1 had said to the youngsters."

I do not find that the Magistrate's dealing with the discrepancy in this regard in any way mistaken. I am not persuaded that he had erred.

12. In the circumstances, ground two fails. I dismiss the appeal.