The King v. Tissera.
1935Present: Maartensz and Koch JJ. and Soertsz A.J.
THE KING v. TISSERA et al.
8—P. C. Dandagamuwa, 15,723.
| Second Midland Circuit. |
Accomplice—Corroboration of evidence—Material particulars—Statement by one
accused regarding confession by another—Misdirection by Judge.
Two persons were charged with the murder of B, a cattle dealer, whoused to travel about in search of cattle, which he bought and sold forpurposes of slaughter.
In a certain village B stayed in the house of C, with whom he set outon the day in question in search of cattle.
According to the evidence of C, B was killed by the accused on acertain path, which they were taking on their way to C’s house. Pgave evidence that on a day, which could not be fixed precisely, he metthe prisoners walking along the path and that further on he met Band C, spoke to C and passed on. First accused made a statement tothe effect that the second accused made a confession to him that hecommitted the murder.
Held, that P’s evidence was no corroboration of the evidence of C,who was regarded by the jury under the direction of the Judge as anaccomplice and that it was a misdirection to tell the jury that itamounted to corroboration.
Whether or not a witness, who denies complicity, is really an accom-plice is an issue of fact solely within the province of the jury.
Held, further, that it was a misdirection to tell the jury that the firstaccused’s statement was corroboration of C’s evidence as against firstaccused in the absence of proof that the alleged confession was not made.
HIS was a case stated by the Attorney-General under the provisions
X of section 355 (3) of the Criminal Procedure Code. The factsappear from the head-note.
M. W. H. de Silva, Acting S.-G. (with him Kariapper, C.C.), for theCrown.—The questions of law submitted for the consideration of YourLordships are—(1) Whether Cyril’s evidence should in law be regardedas that of an accomplice ; (2) Whether Peduru’s evidence affords sufficientcorroboration of Cyril’s evidence against either accused; (3) Whetherthe first accused’s statutory statement can be used against him ascorroboration of Cyril’s evidence.
J. R. Jayewardene, for first accused—After Cyril’s evidence the learnedJudge ruled that Cyril was an accomplice. This precluded Counsel fromleading evidence that Cyril was an accomplice. The Judge’s ruling hadthe effect of stopping Counsel from leading further evidence on thatpoint. The trial proceeded from that stage on the assumption that Cyrilwas an accomplice.
The Judge directed the jury that Cyril was an accomplice and that hisevidence must be corroborated, and that Peduru’s evidence suppliedthe necessary corroboration. The Judge directed that Cyril’s evidencewith regard to the first accused’s connection with the crime was supported
The King v. Tissera.
by the first accused’s unsworn statement. The learned Judge goes on thebasis that the first accused’s statement was a confession. The firstaccused’s statement cannot be used against him.
We cannot here go into the question whether Cyril was an accomplice.The question is whether Cyril has been corroborated. It is a misdirectionto the jury that Peduru’s evidence is sufficient corroboration of Cyril’sevidence.
Peduru’s evidence does not supply any corroboration at all; it istautologous to speak of sufficiency of corroboration. Peduru’s evidencedoes not show anything more than that the first and second accused werewith the accomplice. There should be corroboration not only as regardsthe identity of the accused but also as regards their connection withthe crime (Henry Everest'; R. v. Foulier ‘; Marikar v. James3; 35 Cr. LawJournal 317 (I. R.) ). There must be a distinction between evidencewhich confirms the circumstances of the case and that which identifiesthe accused. The case reported in 35 Cr. L. J. on the question ofcircumstances is exactly similar to the present case.
There must be corroboration of the accomplice’s evidence against boththe prisoners (25 Madras 143; 8 Ind. L. R. (Allahabad) 306).
It is a question of law for the Judge to decide what evidence amountsto corroboration; and then for the jury to believe or disbelieve thatevidence. (8 Weekly R. (Cr. Sect.) p. 19.)
[Maartensz J.—Did the Judge say that if Peduru’s evidence is believedthen it is sufficient corroboration ?]
The case is stated on the basis that the Judge had ruled thatPeduru’s evidence, if believed, was corroboration.
If the Judge ruled that Peduru’s evidence, if believed, is corroborationof C’s evidence, then it is a misdirection to the jury.
Peduru refers to two incidents, viz., his meeting the two accused and hismeeting the accomplice. The first has no criminal significance while thesecond tends to prove that the accomplice can speak of the crime.Peduru does not corroborate Cyril as to the circumstances in which thecrime was committed. There is nothing to show in his evidence that theaccused participated in the crime.
The first accused’s statement cannot be accepted in part and rejectedin part. There must be independent corroboration of evidence againsteach accused ; there is corroboration against the second accused only.The corroboration of an accomplice’s evidence against either accusedshould be independent (33 Cr. L. R. 242). There is nothing whichconnects the first accused with the crime. It is only on condition thatthe first accused was at the spot and committed the crime that his state-ment could be used as corroboration. The statement of the first accusedis undoubtedly inadmissible against the second accused. The Court. should have directed the jury how they should deal with the hearsaystatement of the first accused. It is only that which connects the firstaccused with the crime.
A. S. Ponnambalam, for second accused, adopted the above arguments.i2 Cr. A: R. 130.2 3 C. <t P. 106.2 7 Thambiah R. 30.
Delivered by MAARTENSZ J.—The King v. Tissera.
M. W. H. de Silva, Acting S.-G., in reply.—The first accused’s statementshows a knowledge of the circumstances connected with the murder.If the evidence establishes that he did not obtain this knowledge eitherfrom the second accused as alleged by him or from other sources, thenit shows that he must have been present at the scene of the crime andthis can be treated as corroboration of the evidence of the accomplice,(5 W. R. (Sutherlands’ Reports) page 80). The evidence in this case doesnot, however conclusively establish that the second accused did notmake this statement as alleged by the first accused or that there was noopportunity for the first accused to obtain information of the crimefrom other sources. It is therefore doubtful whether the first accused’sstatement affords any corroboration. The substance of the statementis heresay and would not afford corroboration.
Cur. adv. vult.
October 28, 1935. The judgment of the Court was delivered by
This case was reviewed by us upon a certificate given by the Attorney-General in pursuance of the provisions of sub-section (3) of section 355 ofthe Criminal Procedure Code, 1898, that the questions of law hereafterset out which arose at the trial ought to be further considered.
The convicted persons, (1) Wamakulasooriya Elias Tissera and (2)Peter Mirando, were tried on September 9, 10, and 11 at the CriminalSessions of the Supreme Court held at Kandy, and were by a unanimousverdict of the jury found guilty of committing murder by causing thedeath of one Thuppahige Don Bastian Appuhamy on September 18, 1934,at Dura Akkarawatta.
Don Bastian, who was a cattle dealer living near Kandana, in the Districtof Negombo, used to travel to Dandagamuwa and the neighbouringvillages in search of cattle, which he bought from villagers and sold forpurposes of slaughter. When in the village of Ellabodagama he usuallystayed with a man named Cyril of that village.
Don Bastian and his nephew Rapiel came to Cyril’s house on September15. Rapiel returned home alone on September 17.
On the morning of September 18, 1934, Don Bastian and Cyril set outfrom the house of the latter in search of cattle. They were possibly seenin the forenoon by the witnesses Biya alias Bandiya of Koneduduwera,and about 11 or 11.30 a.m. by K. Elaris Perera of Pihimbiya at hisboutique, where they had a chew of betel.
Bastian was not seen alive after September 18, 1934. According tothe evidence of Cyril, Bastian was killed by the first and second prisonersabout midday at the point A on the path which they were taking on theirway to Cyril’s house from the boutique of Elaris. The murder was,he said, committed shortly after they had at the point “ K ” met andspoken to Pedru, who was going in the opposite direction. After crossingPedru, Cyril first saw the two prisoners at the point “ E ”. The firstprisoner was then carrying a katty—a little later he noticed that theprisoners were following them and mentioned it to Bastian. When hereached the point B in the plan, he heard Bastian cry out that someone
Delivered by MAARTENSZ J.—The King v. Tissera.
had struck him. On looking back he saw Bastian lying on the groundat A and the second prisoner about to strike him with a katty. Theblow alighted on Bastian’s neck.
The first prisoner, who was about eight feet away from Bastian, said“ Catch that fellow ”, Cyril said he was so frightened that he ran home,borrowed Rs. 2 from his sister Leelawathie, and went to Kuliyapitiya andthence by bus to Negombo, where he slept in an outer verandah. Nextday he went to his aunt Chalo’s house in Tempola, five miles awayfrom Negombo. After four or five days he found employment on Mr.Schrader’s estate in Negombo.
We should mention here that the plan was not available to us, and thepoints referred to are taken from the statement of facts in the case statedby the Attorney-General.
A few days after he left the village Cyril was questioned by his brotherPathmasena, as his father had received information from the firstprisoner that a cattle trader had been killed near the Akkarawatte tank.Cyril replied “I will mention it in the proper place” and told him to go away.
The Police were meanwhile in search of Cyril, as Rapiel had mentionedthat Don Bastian was last seen in his company. He was arrested onMr. Schrader’s estate on October 4. Before his arrest a disjointedskeleton had been found in the jungle on September 29, 1934, at the pointsG, H, I, and J on the plan. Near the bones were a grey coloured cloth,a verti cloth with a red border, an umbrella, pieces of a sarong, and asheath of a knife, which have been identified by Bastian’s wife andRapiel as belonging to Bastian.
The bones so found have been identified as those of Bastian on accountof the identification of the articles found near the bones.
The cause of death could not be ascertained by an examination of thebones.
The presiding Judge ruled that Cyril was an accomplice. The firstquestion of law submitted for consideration was “ Whether Cyril’sevidence should in law be regarded as that of an accomplice ”.
The Solicitor-General stated that this question was reserved with aview to obtaining a ruling as to the circumstances in which a witness whodenies complicity is to be deemed an accomplice.
We are of opinion that a general rule or rules cannot be laid down as itis not a question of law but of fact. It was so held in the case of The Kingv. Loku Nona and others', where the Divisional Court affirmed theopinion of Wood Renton J. that whether or not a witness who deniescomplicity is really an accomplice is an issue of fact, and therefore solelywithin the province of the jury. We wish to say, with respect, thatwe are in complete agreement with this view.
In our opinion, therefore, this question should have been left to thejury for their decision. But, as the learned Assize Judge ruled that thewitness Cyril was an accomplice, or at least, should be treated as such,we think that the second and third questions submitted for our consider-ation must be decided upon the assumption that the jury followedthe direction of the Judge and regarded Cyril’s evidence as that of anaccomplice. .
> u907) n N. L. fi. 4.
Delivered by MAARTENSZ J.—The King v. Tissera.
The second question reserved is whether Pedru’s evidence affordssufficient corroboration of Cyril’s evidence as against either prisoner.With regard to this, we wish to say that a note of the learned Judge’ssumming up was not available to us and we have been invited to considerthe question on the assumption that the statement in the Judge’s orderon this point contains substantially his directions to the jury.
In this order he said, “ Having ruled that Cyril was an accomplice Iexplained to the jury the law with regard to accomplices ….But in view of illustration (b) of section 114 I explained that it was theduty of the Judge to warn juries not to accept the evidence of an accom-plice unless he was corroborated in material particulars, not merely withregard to the commission of the offence but particularly in connecting
and identifying each of the two accused with the offence
Pedru’s evidence if believed corroborated Cyril as regards the connectionof the two accused with the offence, because he saw both the accused atthe spot and time where and when the crime was committed and he alsosaw Bastian and Cyril at about the same time and place. Pedru also sawa katty in the hands of the first accused. I asked the jury to apply thetest of the eye in considering the evidence of Cyril. Were they satisfiedhe was speaking the truth and was it their experience that a youth likeCyril would behave in the way Cyril did? If they believed Cyril thatwas not enough; as he was an accomplice it was my duty to warn thejury not to accept an accomplice’s evidence unless he was corroboratedin material particulars connecting the two accused with the crime. Pedrusupplied the necessary evidence. It was for the jury to say whetherthey believed Pedru ”.
“ My summing up was to that effect …. ” .
The passages quoted indicate that the learned Judge directed the jurythat, to use his own words, “ Pedru supplied the necessary evidence ”.
Pedru’s evidence is that on a day, which he cannot fix precisely, he wasgoing along a path leading to Pihimbiya junction by the Akkarawattetank and passed the first and second prisoners at the point F in the plan—the second prisoner being armed with a katty and first accused unarmed.Further on at the point K he met Bastian and Cyril going towards Fand spoke to Cyril and passed on. The point E, where according toCyril’s evidence he first saw the prisoners, is 700 yards from K.
It was contended by Counsel for the prisoners that Pedru’s evidenceflid not as a matter of law corroborate the evidence of Cyril and that thelearned Judge should have so directed the jury. And it was urged thatthe omission to give that direction to the jury amounted to a misdirectionwhich prejudiced the prisoners and entitled them to an order that theconviction was bad in law.
The Solicitor-General very fairly drew our attention to the fact thatthough Pedru’s evidence corroborated Cyril’s evidence that the prisonerswere on the path on a certain day there was no evidence to corroboratehim that Bastian was killed on the day of the meeting or that the murdertook place on the path at all.
It was held in the case of The King v. Loku Nona and others (supra)that there is no difference between the law of England relating to accom-plices and the law of Ceylon as embodied in sections 114 and 133 of the37/19
Delivered by MAARTENSZ J.—The King v. Tissera.
Evidence Ordinance. It was also held that it was the duty of the Judgeto warn the jury that they should not convict on the evidence of anaccomplice unless corroborated by independent evidence in materialparticulars; that the corroboration of the evidence of an accomplicemust consist in some circumstance that affects the identity of the partyor parties accused, but that it is not necessary that the corroborativeevidence should be conclusive against the accused. This principle wasaffirmed in the case of The King v. BaskervilleIn all the cases cited tous it was insisted that the corroboration must consist of some independentevidence which points to the prisoner as the guilty person: because a manwho has been guilty of a crime himself will always be able to relate thefacts of the case, and if the confirmation be only of the truth of thathistory without identifying the persons, that is really no corroborationat all. In all the cases cited there does not appear to have been anydoubt as to the truth of the evidence of the accomplice regarding thecircumstances in which the offence was committed. But in this case,apart from the evidence of Cyril, there is no evidence that Bastian waskilled on September 18, 1934, at the time and at the place deposed to byCyril; in short, Cyril’s evidence as to the circumstances in which thecrime was committed is not corroborated by independent evidence.Therefore, the evidence of Pedru that he saw the prisoners on the pathwhere the crime was committed shortly before the time at which Cyrilsays the crime was committed is no corroboration of Cyril’s evidencethat the prisoners participated in the crime. It is quite possible thatCyril’s evidence as regards the circumstances is entirely false. Theevidence of Albert, Baiya alias Bandiya, Elaris and Leelawathie suggest-ing that Cyril was in the company of Bastian on September 18 does notcorroborate his evidence as to the circumstances in which the crime wascommitted. There is one fact I would emphasize and that is the fact thatPedru cannot fix the date on which he met first the prisoners and thenBastian and Cyril. Bastian and Cyril were going about the villagesbetween September 15 and 18, and there is nothing to exclude the possi-bility of Pedru having met them on a previous date. Moreover, Pedruhas not stated in his evidence at what time he met Bastian and Cyril,and even if it can be said that the meeting took place on the 18th, hisevidence does not establish that he saw the two prisoners in the neigh-bourhood of the place in which Cyril says the crime was committed atthe time Cyril says it was committed.
In the view we have taken of Pedru’s evidence it is immaterial whetherthe learned Judge directed the jury that Pedru’s evidence, if believed,supplied the necessary corroboration, or whether he left it to them todecide the question, whether that evidence corroborated Cyril or not,even if believed. We are accordingly of opinion, with all due respect tothe learned Judge that he should have told the jury that Pedru’s evidencedid not corroborate the evidence of Cyril.
In the case of Elahee Buksh, reported in 5 Weekly Reporter CriminalRulings, p. 80, it is pointed out, firstly, that it is the duty of a Judge notonly to state to the jury all the evidence that has been given but tocomment on its bearing and weight and not to leave it to them to decide
1 [1916) L. R. 2 K. B. 656.
Delivered by MAARTENSZ J.—The King v. Tissera.
for themselves what the proper bearing and weight are; secondly, thatit would be an “ Error in a summing up if a Judge after pointing out thedanger of acting upon the uncorroborated evidence of an accomplice,were to tell the jury that the evidence of the accomplice was corroboratedby evidence of a fact which did not amount to any corroboration at all ”.
The third question of law reserved is “ whether the first prisoner’sstatutory statement can be used against him as corroboration of Cyril’sevidence Counsel who appeared for him conceded that if the firstprisoner’s statutory statement was of an incriminatory character itcould be used against him to corroborate the evidence of Cyril. Hecontended, however, that the statement being of an exculpatory naturethe evidence of Cyril was not corroborated by it. The statutory state-ment made by the first prisoner is as follows : —“ I am not guilty. PeterMir an do the second accused was working under me in clearing myresiding land. He is related to my wife Baby Margaret. On a Tuesday,i.e., on September 18, in the morning I asked the second accused Mirandoto clear the land saying that I was going to the land commonly knownas Parewatte of which I am the watcher. I went to that land at about7 ajvl and returned home at about 1 or 2 p.m. that day to take my middaymeaL The second accused Mirando was not to be seen in the house, soI asked my wife where the second accused was. She told me that secondaccused told her that he was going to Kuliapitiya and that he had askedher, if any outsider was to inquire as to where he was. to say that he hadgone to Kuliyapitiya two or three days before that day. I asked her whyhe had left so suddenly. I told her that there must be some reason forhis sudden departure. Then she told me that she saw the second accused,Cyril, and a cattle dealer who was blind in one eye talking together onthe road opposite my house, and that the second accused saying that hewas going with the other two men in search of cattle took a table knifeand a banian and went away with the two men. I was thinking over as towny the second accused had gone away. On the following day at abouj10.30 a.m. the second accused came to my residing house by the mainroad with half a bottle of arrack tied up in a handkerchief. He came andsat down on a bench and said that the bottle of arrack was a presentfor me. I asked him where he had gone to so suddenly. He askedme whether there was no trouble ( saesSbC )this side. I asked himwhat the trouble was about. He said that he was going with a cattledealer and Cyril. Cyril was going ahead, and the cattle dealer wasfollowing Cyril while the second accused was going behind the cattledealer. Then he (second accused) struck the cattle dealer on the headwith a club and the latter fell on his knees and pulled out a pointedknife and turned to stab him (second accused). Then he (second accused)struck the cattle dealer again on the other side of the head with the club.Then he (second accused) got on his (cattle dealer’s) chest and cut the neck.When he looked round to remove the body he saw that Cyril had runaway through fear and was looking on from a distance. Then he askedCyril to come up. Then Cyril came up. He said that he first hid thehead close to the spot where the man was killed. Then he and Cyrilcarried the trunk and hid it among ‘ Iluk ’ bushes near the tank. ThenI told the second accused that he had done a fine thing and that he had
Delivered by MAARTENSZ J.—The King v. Tissera.
put the noose round my neck, as the Arachchi, if he came to know of themurder, would make up evidence and implicate me. I asked him to gosomewhere and save himself. I sent him away the same day. He re-turned four days later to my wife’s residing house. I live in the houseby the main road while my wife lives in another house. My wife told methat she asked the second accused about the table knife that he hadremoved. He then pulled it out of the roof and handed it to my wife.My wife told me so. Then I was wondering as to what should be done.
I came to Kuliyapitiya about five or six days after the murder with theintention of giving a petition. I came and told Wilbert, the clerk of Mr.Sandaratne, Proctor, about the murder and asked him what I should do.He asked me to give a petition. I told him that if I did so the Arachchimight put me into trouble, as he is angry with me. Then he asked meto get out of the trouble as best as I could and that he could not adviseme on the matter. Last Saturday I went to Muruthona near Kochchi-kadde and returned home on Monday at about dusk. Then the murderhad come to light. The Police had discovered the bones and the Magis-trate had gone to the spot for inquiry. On the same evening at about7 p.m. Inspector Mendis and Constable Carolis came and questioned me.I told Inspector Mendis that I would speak the truth and I would tellhim what I know about the murder but asked him not to disclose my-name as my wife would get angry with me as the second accused wasrelated to her. I made the same statement to the Inspector as the oneI am making now. I made a mistake in that I forgot to mention aboutthe money in this statement of mine. The second accused told methat the cattle dealer had Rs. 20 and a few cents with him. The secondaccused told me that he took that money and divided it between him andCyril. This is all I have to say. My witnesses are Fidelis Tissera, mybrother, my wife Margaret, Podiya of Akkarawatte. They were presentwhen the second accused came to the residing house of my wife fromKuliyapitiya about four or five days after the murder, and spoke about themurder ”.
The first prisoner did not give evidence himself nor did he call witnessesto prove that the second accused had made a confession of the crime tohim. According to the order which I have already referred to, the presidingJudge directed the jury as follows:^" There were three alternatives thejury had to consider. If they agreed with the suggestion of the firstaccused’s Counsel that the Police had promised first accused a pardonon condition that he implicated the second accused and that was thereason why the first accused made the long and detailed statement, thenof course his statement was of no value. If they did not fall in with thissuggestion it was open to them to draw the conclusion that first accusedcorroborated Cyril because he himself was there and saw the murder ortook part in it. In other words I pointed out to the jury that the firstaccused’s statement could be used only against the first accused to seewhether it supplied the necessary corroboration of Cyril’s account of themurder. I also pointed out to the jury that if they preferred they couldentirely ignore the first accused’s statement and consider Cyril’s evidenceand Pedru’s evidence only”.
Delivered by MAARTENSZ J.—-The King v. Tissera.
It was contended that the learned Judge's direction to the jury thatif they did not fall in with the suggestion of the first accused’s Counsel itwas open to them to draw the conclusion that the first accused’s state-ment corroborated Cyril amounted to a misdirection. It was urged insupport of this contention, first, that there was no evidence direct orindirect other than the evidence of the accomplice Cyril upon which thejury could hold that the first prisoner’s statement regarding the confessionmade to him by the second accused was false and it was argued that unlessthe confession was proved to be false it could not be inferred that the firstprisoner’s knowledge of the circumstances in which the crime was com-mitted was because he was there himself as a spectator or a participator inthe crime; second, that even if the first prisoner’s statement was false itcould not be used as affirmative corroboration of'the evidence of Cyril.
As regards the first point urged by Counsel for the first prisoner, theSolicitor-General admitted that he could not refer us to any evidencedirect or indirect that disproved the truth of the first prisoner's statement.In the case of Elahee Buksh already referred to corroboration of a state-ment similar to that of the first prisoner in this case, was obtained froma piece of circumstantial evidence. Elahee Buksh had made a certainstatement to the Inspector of Police and in the circumstances of thatcase, it was found that he could not have obtained the information heconveyed in the manner he alleged, and the only way of accounting forhis knowledge was by assuming that he was a party to or an abettorof the offence. In this case, the prisoner’s statement that what he knewof this incident was knowledge derived from a confession made to himby the second prisoner, may well be true. There is nothing to show orsuggest that it is impossible or even improbable. We think that suchproof was necessary before the burden of proving the truth of his state-ment could be said to have devolved on the first prisoner.
Ln view of our opinion on the first point urged by Counsel for the firstprisoner no useful purpose would be served by a discussion of the secondpoint urged by him. We accordingly hold, with due deference, thatthe jury should not have been told that if they did not fall in with thesuggestion of the first accused’s Counsel it was open to them to draw theconclusion that the first accused corroborated Cyril because he was thereand saw the murder and took part in it.
There remains the question whether the conviction should be quashedon the ground of misdirection. A conviction is not illegal merely becauseit is based on the uncorroborated evidence of an accomplice if the juryhad been duly warned, as was done in this case, that they should notconvict on the evidence of an accomplice unless corroborated by inde-pendent evidence in material particulars (The King v. Loku Nona andothers (supra) ): Had the learned Judge after warning the jury directedthem that there was no evidence to corroborate the evidence of theaccomplice and the jury had convicted the prisoners, we could not haveinterfered with their conviction. But in this case the jury were toldthat there was evidence which corroborated the evidence of the accom-plice Cyril, namely, the evidence of Peidru, if believed, as against both theprisoners, and the statutory statement of the first prisoner, if the jury
Doole v. Zubair.
did not fall in with the suggestion of his Counsel as to his reasons formaking that statement. We are therefore unable to say that the juryconvicted the prisoners on the uncorroborated evidence of Cyril alone.
We have for the reasons given by us come to the conclusion (1) that thepresiding Judge should not have told the jury that the evidence of Pedru,if believed, corroborated the evidence of the accomplice against both theprisoners; (2) that he should not have told the jury that if they did notfall in with the suggestion of the first prisoner’s Counsel it was open tothem to draw the conclusion that the first accused’s statement corro-borated Cyril. These directions clearly prejudiced the case for thedefence. We accordingly quash the conviction of both the prisoners.
THE KING v. TISSERA et al