Tseng Ping Yee v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 662 OF 1968

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JUDGMENT

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Blair-Kerr, J. :-

1. The appellant was convicted of using a motor vehicle registered as a dual purpose vehicle for use as a private car and goods vehicle on a road without third party insurance contrary to s. 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance 1951. He was fined $300.00 and disqualified for 12 months from holding a driving licence for private cars or dual purpose vehicles.

2. The case for the prosecution was that the appellant, who was the driver of a dual purpose vehicle, on the windscreen of which was a notice which read "Mongkok - Castle Peak Road", stopped his vehicle in Nathan Road and asked two police officers in plain clothes if they ...(illegible) desirous of being conveyed to Castle Peak Road; that the officers informed him that they were so desirous and boarded the vehicle that there were five other persons in the vehicle at the time; that when the officers said that they wished to alight at Un Chau Street, the appellant said: "one dollar"; and that the officers thereupon handed the appellant one dollar which he accepted.

3. The appellant did not challenge this evidence, and in cross-examination the solicitor appearing on his behalf elicited from one of the officers that at the police station the appellant, in response to a question, said that he did not have his certificate of insurance with him; that the appellant was requested to produce the certificate within a specified period; and that he had failed to do so.

4. The magistrate rejected a submission of no case to answer, whereupon the appellant's solicitor said that he was calling no evidence but that his client would make an unsworn statement and produce the policy of insurance in respect of the vehicle. The magistrate then informed the appellant's solicitor that he did not consider that in Hong Kong an accused person had any right to make an unsworn statement; whereupon the solicitor said that he did not wish to argue the matter because the appellant did not wish to say anything other than to produce the policy of insurance. The policy was in fact produced by another witness.

5. The first ground of appeal is that the magistrate was wrong in law in holding that the appellant had no right to make an unsworn statement. It is arguable that this question does not strictly arise because, according to the appellant's solicitor, his client did not wish to adduce any evidence other than to produce the policy of insurance. On the other hand the magistrate gave a definite ruling; and I cannot speculate on what the appellant might have said if he had felt free to elect to make an unsworn statement. Counsel on both sides are in agreement that the point does arise; and I am content to treat it as a valid ground of appeal.

6. Before dealing with Counsel's submissions, I think it is advisable to trace the history of the rule which now obtains in England whereby an accused person, although he elects not to give evidence on oath, may nevertheless make an unsworn statement. This will necessarily involve a cursory glance at the history of the rule which obtained in England until 1898 (and in Hong Kong until 1906) whereby an accused person was precluded from giving evidence in his own defence.

7. At one time interest in a suit was considered to disqualify a person from giving evidence; and at Common Law the parties were incompetent as witnesses in all cases. However, this rule was not followed in criminal matters. Indeed, until the Revolution of 1688, the interrogation of a prisoner upon arraignment formed an important part of his trial. In Stephen's History of the Criminal Law of England the learned author, writing in 1882, has this to say⁽¹⁾:-

"..... down to the Civil Wars ..... the interrogation of the prisoner on his arraignment formed the most important part of the trial. Under the Stuarts questions were still asked of the prisoner, though the extreme unpopularity of the ex officio oath, and of the Star Chamber procedure founded upon it had led to the assertion that the maxim 'nemo tenetur accusare seipsum' was part of the law of God and of nature .................................... Soon after the Revolution of 1688, the practice of questioning the prisoners died out, and as the rules of evidence passed from the civil to the criminal courts, the rule that a party was incompetent as a witness which ......... prevailed till 1853, was held to apply to criminal cases."

Clearly the object of the rule was to protect accused persons from judicial questioning. Whether the effect of the rule in those days was that accused persons were henceforth to keep silent is not entirely clear. They had no right to legal representation, at any rate in cases of felony; and persons not legally qualified do not draw any clear-cut distinction between an "address" to the jury on the evidence which has been adduced against them and giving their own version of the facts. Indeed, it is not apparent from the reports of some of the early cases that the courts were alive to any such distinction. At any rate, during the 18th century, when there were so many capital offences on the statute book, it is easy to visualise the dilemma in which the judges found themselves. As Mathers C.J. said in R. v. Krafchenko⁽²⁾:-

"..... it was manifest that a great injustice might often be done unless the story of the accused was allowed to get before the jury in some form. To meet that difficulty judges adopted the practice of permitting the prisoner to make an unsworn statement from the dock and to address the jury on his own behalf."

8. However, difficulties immediately occurred when the Prisoners Counsel Act was enacted in 1836. This Act gave prisoners charged with felony the right to make their full defence by counsel; and from a study of the decisions in R. v. Boucher⁽³⁾; R. v. Beard⁽⁴⁾; R. v. Malings⁽⁵⁾; R. v. Walkling⁽⁶⁾; R. v. Burrows⁽⁷⁾; R. v. Rider⁽⁸⁾; The Queen v. Dyer⁽⁹⁾; R. v. Williams⁽¹⁰⁾; R. v. Taylor⁽¹¹⁾; R. v. Weston⁽¹²⁾; R. v. Shimmin⁽¹³⁾; R. v. Millhouse⁽¹⁴⁾; and R. v. Doherty⁽¹⁵⁾; (all of which are summarised by Mathers C.J. in R. v. Krafchenko⁽²⁾) it is evident that from 1837 to 1898 there was a considerable measure of uncertainty as to the circumstances in which a prisoner who was defended by counsel might be permitted to give the jury his version of the facts and to comment on the evidence otherwise adduced. For example, in Boucher⁽³⁾, at the conclusion of the prosecution case, the prisoner's counsel addressed the jury. The prisoner then asked leave of the court to make a statement; and the judge (Coleridge J.) refused to allow him to do so saying; "..... your counsel has spoken for you. I cannot hear both"; and there is nothing in the report to indicate that the prisoner had been permitted to give his version of the facts before his counsel addressed the jury.

9. Certain counsel were of the opinion that they could inform the jury of facts which had been communicated to them by their clients, that is to say to give second-hand evidence not on oath from the bar. This was frowned upon by the judges; and in R. v. Beard⁽⁴⁾ Coleridge J. said:-

"I cannot permit a prisoner's counsel to tell the jury anything which he is not in a position to prove. If the prisoner does not employ counsel, he is at liberty to make a statement for himself and tell his own story; which is to have such weight with the jury, as in all the circumstances considered, it is entitled to; but if he employs counsel he must submit to the rules which have been established with respect to the conducting of cases by counsel."

Upon receiving this ruling, counsel for the prisoner then addressed the jury "on the facts already in evidence".

10. In R. v. Malings⁽⁵⁾, the prisoner's counsel in addressing the jury expressed regret that as the prisoner was defended by counsel he was not allowed to make his own statement. However, Alderson B. ruled as follows:-

"I see no objection in this case to his doing so; I have read the statement he made before the magistrate. I think it is right that a person should have the opportunity of stating such facts as he may think material, and that his counsel should be allowed to comment on that statement as one of the circumstances of the case."

11. In R. v. Walkling⁽⁶⁾, at the close of the case for the prosecution, counsel proposed that the prisoner should make his own statement before his counsel addressed the jury, citing Malings⁽⁵⁾ in support. Gurney B. is reported as having ruled as follows:-

"My brother Alderson informs me that he allowed it in the instance which has been referred to , which was a very peculiar case, and as it has been already permitted before at these assizes. I will not refuse to allow it in this instance, but I think that it ought not to be drawn into a precedent."

12. In R. v. Burrows⁽⁷⁾, Bosanquet J. refused to allow a prisoner defended by counsel to make a statement to the jury. The report of the submission of counsel for the prisoner reads:-

"..... after the evidence for the Crown was closed, he "(counsel)" stated that (his client) wished to make a statement of the facts to the jury, and that, afterwards, he should have a right to comment to the jury, as well on the statement made by (his client) as on the facts proved; ................ Before the alteration introduced by the Act which gave to prisoners the benefit of full defence by counsel, a prisoner was allowed to make his own statement of the facts;...