Chan Chi v The Queen

Judgment Cited in Precedent Map Related
Judgment Date02 February 1968
Judgement NumberCACC667/1967
Year1968
CourtCourt of Appeal (Hong Kong)
CACC000667/1967 CHAN CHI v. THE QUEEN

CACC000667/1967

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 667 OF 1967

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BETWEEN
Chan Chi Appellant

AND
The Queen Respondent

Coram: Hogan, C.J., Rigby, S.P.J., Blair-Kerr, J.

Date of Judgment: 2 February 1968

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JUDGMENT

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1. Some five grounds of appeal have been filed and argued in the present case, but we think it is necessary or desirable to reduce to writing our reasons for the decision on only one of them.

2. When the principal prosecution witness was put forward, the following note was made in the District Judge's record:-

"P.W.l called forward. Court inquires age. Says 14 by European reckoning. Court decides not of tender years.".

3. In his judgment the District Judge said:-

"Before having P.W.l affirmed I inquired his age though I did not really think he looked of tender years. He is aged 14 years. The Courts have never so far as I know decided exactly where to draw the line as regards tender years and it well may be it need not be drawn as it is only necessary to know on which side of it a proposed witness falls. This could depend on other matters than years since birth. Tender years in one country may not be so in another.".

4. The learned judge went on to refer to certain cases and mentioned that whilst he did not consider the witness to be of tender years he kept in mind his youth and the dangers of imagination etc. at that age. This witness was in fact the principal witness for the Crown.

5. Counsel for the appellant contends that the judge was wrong in dealing with the matter in this way and says that the judge should not have made this arbitrary decision about the competence of the witness to give evidence but, before deciding, should have made enquiries which would have ranged over the background of the potential witness with a view to ascertaining whether, possibly, a rural environment or other factors, such as mental development, would have brought him into the category of a child of tender years even though an individual of the same age, with a different background such as a more urbanised environment, might not be so classified.

6. Counsel also argued that the nature of the enquiries which would have followed, if the witness was held to be a child of tender years, i.e. the enquiries as to whether he understood the nature of an oath, as contemplated by Section 4 of the Hong Kong Evidence Ordinance, or whether, failing such understanding, his evidence could be taken in the circumstances contemplated by that Section, should be related back to the earlier question as to whether the witness was or was not of tender years. In this connection he referred us to the case of Tam Hoi v. The Queen(1), though more for the purpose of illustrating the various steps contemplated by the Section than on the ground that it directly supported his argument.

7. What is a 'child of tender years' for the purpose of giving evidence in a criminal case does not appear to have been authoritatively defined, and, as the learned...

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