Chan Kwong v. The Queen
Read the full judgment text of CACC 191/1982 on BabelCite. This Court of Appeal judgment was delivered on 27 August 1982.
1. On the morning of the 5th of April 1981 a walls-walls or shuttle ferry carrying persons from the m/v LU Chiang was intercepted by a Customs & Excise launch as it was about to enter the Yaumati Typhoon Shelter prior to off-loading its passengers at the Man Cheong Ferry Pier within the shelter. On the approach of the launch, two men jumped from the walls-walls into the sea. They were followed by several Customs & Excise officers who, one imagines at considerable risk to themselves, effected an
Cited by 1 case
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CACC000191/1982 Conspiracy - It is not permissible in a criminal trial to adduce evidence of a plea of guilty to the offence charged by co-accused who are not before the court even though such evidence is led with the ostensible purpose of identifying the absent conspirators - Despite such irregularity the proviso might have been applied because there was other evidence serving this purpose - Convictions quashed nevertheless because (a) the evidence of the vital prosecution witness, although properly left to the jury was so unsatisfactory as to occasion a substantial doubt of its reliability; and, (b) because the jury were invited to consider the case of the appellant in the light of a finding of guilt in respect of another co-accused.
BETWEEN
_________ Coram: McMullin, V.-P., Li & Yang, JJ.A. Date: 27 August 1982 __________ JUDGMENT __________ McMullin, V.-P. 1. On the morning of the 5th of April 1981 a walls-walls or shuttle ferry carrying persons from the m/v LU Chiang was intercepted by a Customs & Excise launch as it was about to enter the Yaumati Typhoon Shelter prior to off-loading its passengers at the Man Cheong Ferry Pier within the shelter. On the approach of the launch, two men jumped from the walls-walls into the sea. They were followed by several Customs & Excise officers who, one imagines at considerable risk to themselves, effected an arrest in the water. Two handbags and two orange cartons found on the walls-walls which had been in the possession of these two men were, upon examination, found to contain a large quantity of raw opium. 2. The two men RUNG Siu-sun and YIK Tsz-wai were taken into custody and on the same day seven other persons were arrested and all nine were subsequently charged upon an indictment containing two counts. 3. The first count was conspiracy to traffic in dangerous drugs and in the second count Fung and Yik were separately charged with possession of the drugs for the purpose of trafficking. 4. The appellant, CHAN Kwong, was one of the nine persons charged as conspirators on the first count. The alleged conspirators fall into two groups. The first, which may be called the shipboard party' consisted of crew members of the Lu Chiang. The remaining three, who might be called the shore party, were the first three defendants, Fung, Yik and the appellant CHAN Kwong. These were all Hong Kong residents. 5. The remaining six were respectively (in the order in which they appear in the indictment) OR Chun-fai, chief steward (4th defendant); CHONG Keng-seng, 3rd engineer (5th defendant);'" HUI Man-wai, master (6th defendant); WONG Ping-kwong, chief engineer (7th defendant); LEE Kai-ming, 2nd engineer (8th defendant) and LAM Tung-kong, 5th engineer (9th defendant). 6. Four of the defendants pleaded guilty prior to trial. The 1st and 2nd defendants pleaded guilty to the charge of possession for the purpose of trafficking and the Crown offered no evidence'' against them on the conspiracy charge. The 5th and 9th defendants pleaded guilty to the conspiracy charge. 7. The trial proceeded against the 3rd, 5th, 6th, 7th and 8th defendants. The 5th defendant CHONG Keng-seng, who had upon his plea of guilty received a sentence of six years' imprisonment, was called as a witness for the Crown. 8. The jury found the 3rd and 4th defendant's guilty but acquitted the 6th, 7th and 8th defendants upon the conspiracy count. The 6th defendant was in fact discharged by verdict of the jury on the invitation of counsel at the conclusion of the prosecution case. 9. The 5th defendant, CHONG Keng-seng, was the key witness upon the conspiracy charge. The story which he unfolded is as follows. While the ship lay at anchor in the port of Calcutta, some time in January, a discussion took place between himself, the master, the chief engineer, the 2nd engineer and the chief steward concerning the possibility of making some money by trading in contraband goods. Dangerous drugs were mentioned as the most profitable prospects in such illicit trade. The master's position seems to have been somewhat equivocal at this point: he issued a warning that he must be consulted before dangerous drugs were taken aboard. 10. In Singapore the witness was told by the chief engineer that the chief steward had brought a quantity of opium aboard and the witness was asked to enlist the aid of the 9th defendant (the 5th engineer) to assist in the storage of the opium in the engine room. The 9th defendant greed to go along with this. Eventually part of the opium was stored in the hollow space within a spare piston which was in the engine room and part was concealed in an opening behind a cupboard in a pantry hear the chief steward's cabin. 11. The ship sailed to Hong Kong. The witness and the chief steward went to a coffee shop in the Nathan Hotel where the witness was introduced to a man called Kong who was said to be the owner of the opium. Prior to this but after the arrival in Hong Kong, the witness had told the captain about the introduction of the drugs on board the ship. The chief steward was annoyed about his having done so because he was thus compelled to admit to the captain that he had introduced the drugs to the ship. He asked the captain to look the other way and the latter, who appears to have been reluctant at this stage, told the chief steward that if anything happened, they (presumably the chief steward and his confederates) would be responsible. When Mr. Kong was told that the captain knew about the drugs, he too, appeared annoyed. But subsequently the captain was persuaded to come and meet Mr. Kong at the Hong Kong Hotel. Although the witness' evidence on the matter was not very clear, it would appear that it was his understanding that the captain who had been threatening to leave the ship in Hong Kong, was persuaded to remain on a loan of some $40,000 having been advanced to him by Mr. Kong. 12. Because Customs officials were then on board the ship, no endeavour was then made to off-load the opium. The ship set sail for North Korea and from there to South Korea and eventually it arrived back in Hong Kong on the 4th of April. On that day the witness was told by the chief steward that two men would come aboard the following day to take the opium ashore. Later on the same day he saw the 5th engineer (9th defendant) bringing a person aboard whom he later identified as the 1st defendant. 13. The opium which was contained in 187 separate packages was then displayed to the 1st defendant who counted the packages in the presence of the chief steward, the witness and the 5th engineer. Thereafter the opium was removed to an empty cabin to which the 1st defendant also repaired and where he spent the night. 14. The following morning the 2nd defendant came aboard and the witness procured two bags and two orange cartons to contain the drugs and these were then handed into the care of the 1st and 2nd defendants. They boarded the walla-walla which took them on their journey to the ferry pier with the results which have already been described. The capture of the 1st and 2nd defendants took place at about 8.45 a.m. 15. This was the principal body of evidence adduced by the Crown to prove the existence of the conspiracy and the identity of the principal conspirators. Thus far there has been no mention of the appellant (3rd defendant). He comes into the picture, however, at the very end of the accomplice witness' story. Chong told the court how later the same morning at about 1000 a.m. he saw two men coming aboard, one of them being a person whom he identified as the appellant CHAN Kwong. The appellant asked to see the chief steward and the latter was summoned from the dining-room. The witness said that he then saw them greet each other and laugh and chat together. He said that the appellant and the chief steward went off together to the chief steward's cabin. Some time later they returned to the dining saloon and told the witness that Customs Officers had prevented them leaving the ship. At about noon the chief steward and the appellant were arrested by Customs Officers and taken ashore. At about 10.00 that night the witness himself was arrested and subsequently charged. 16. The other body of evidence upon which the Crown relies as proving the guilt of the appellant consists of the testimony of two Customs and Excise Officers, TSANG Hoi-ping and TONG Shu-kun, who between the 31st of March and the 5th of April were keeping watch upon the movements of the appellant. What this surveillance evidence purports to show is that there was between those days a close and significant association between the appellant and several of the alleged conspirators and that the nature and circumstances of that association are such that the only rational conclusion is that he was one of their number. 17. Since one of the principal arguments in favour of allowing the appeal has been that there was not sufficient evidence to go to the jury, it is necessary to summarize briefly the nature and number of these contacts and the circumstances under which they occurred. We have in this regard been greatly indebted to counsel for the appellant for preparing a summary of this evidence to which the Crown assents as a correct and exhaustive representation of this part of the evidence against the appellant. 31st of March 1981: 18. The appellant was seen by Customs Officer TSANG Hoi-ping walking with the 1st defendant at about 3.30 p.m. in the street near the appellant's premises in the Wah Fat Building, Kowloon. At 7.30 on the same day, he was seen by the same witness cooking some food in his apartment in the company of the 2nd defendant. Friday, 3rd of April 1981: 19. The same witness (Tsang) saw the appellant at about 12.30 p.m. going with a woman (who was not a conspirator) to a restaurant where they met the 1st defendant. The appellant sat with the 1st defendant, and he engaged in conversation with him there for some time. He was seen to leave the restaurant alone. The witness followed him and saw him entering the Cable & Wireless Office in the Ocean Terminal Kowloon. Thereafter the appellant, went home. Later that night the m/v Lu Chiang arrived in Hong Kong and moored in the harbour. Saturday 4th of April 1981: 20. Some time after 7.30 a.m. the appellant was seen by officer Tsang in conversation with the 4th defendant who was at that time accompanied by his daughter. This took place in a North Point Restaurant and the conversation lasted for about an hour. The appellant was then seen to return home after a visit to the deposit section of the Hang Seng Bank near his living premises. At 1.30 on the same day he was seen emerging from his premises in the company of the 1st defendant. They went across the harbour to the same restaurant, the New Metropole, North Point where they met the 4th and 9th defendants and sat with them at a table, engaged in conversation. The 4th defendant once more had his daughter with him. They all left the restaurant about 2.00 p.m. and went in a taxi to the New Mercury House Cable and Wireless Office where they stayed about 5 minutes. These 5 persons were then seen to go to the Old Mercury House. Cable and Wireless Station near the Furama Hotel. They entered it and remained for about half an hour. Thereafter the 1st defendant and the appellant returned to the appellant's residence. 21. At 7,30 the 1st defendant and the appellant emerged from the Wah Fat Building and went to the Ocean Terminal Cable and Wireless Office where, according to Customs Officer Tong, the 1st defendant filled up a form and handed it to one of the attendants. It was on this evening that the accomplice witness was told by the chief steward that two men would be coming aboard to remove the drugs the following day. 22. At 8.30 on the same day the appellant and the 1st defendant were seen entering the Cable and Wireless. Office at Old Mercury House near the Furama Hotel where they were joined by the 9th defendant. Thereafter the three of them were seen entering the Mandarine Hotel and at about 9.30 the appellant was seen to leave the hotel alone, He bought a newspaper, visited a public toilet, returned to the hotel and entered it. He left the hotel at about 10,00 p.m. and went home. The 1st and 9th defendants left the hotel about a minute after the appellant had done so and were seen eventually boarding a walla-walla which took them to the Lu Chiang at about 12.30 p.m. Sunday 5th of April 1981: 23. Customs Officer Tong saw the appellant leave his home at about 6.30 a.m. He had with him a puppy on a lead. He walked down Dundas Street and Waterloo Road and eventually made his way to the walla-walla pier in the Yaumati Typhoon Shelter. He sat on a stone bench there but every time a walla-walla would come to tie up at the pier, according to the witness, the appellant was seen to stand up and direct his attention at the boat and its passengers. He also was observed to walk to the end of the pier where there is a small light house where he spent about 15 minutes and then returned to where he had previously been sitting. He again walked up and down on the pier observing the arriving of walla-wallas and the disembarking of their passengers. In all he was said to have observed about 40 such boats between about 7.00 a.m. when he arrived at the pier and 10 minutes past 9 when he left and took a taxi to his home. It would appear that he did not see the disturbance caused by the 1st and 2nd defendants jumping into the sea from the walla-walla which was about to enter the shelter at 8.45. 24. At about 25 minutes past nine he was seen to take a taxi to the walla-walla pier in the company of a Mr. Hui (who is not one of the alleged conspirators). He and Mr. Hui took a walla-walla to the Lu Chiang and boarded it together. The manner of his greeting the 4th defendant and their subsequent arrest have already been described. 25. The prosecution maintain that these two bodies of evidence converge to afford a satisfactory basis for the conviction. Mr. White maintains that the conspiracy has been adequately proved by the evidence of the accomplice CHONG Keng-seng whose evidence must be accepted at least in regard to the 4th defendant. He relies upon the surveillance evidence as the necessary connecting link between the appellant and that proved conspiracy. 26. Mr. Sanguinetti does not deny that there may have been a conspiracy such as that described by the accomplice but he contends that the only body of evidence which is said to bear against the case of his client, the surveillance evidence, amounts to nothing more, taken at its highest, than mere suspicion. 27. This is, effectively, the burden of Grounds 1, 2, 11, 13 and 14 paragraphs (a) and (d) of the Grounds of Appeal. In the first two grounds he puts it that the evidence should not have been admitted as being neither relevant nor pertinent; alternatively that it was more prejudicial than probative. That goes too far Apart from the fact that the trial judge was not asked at the trial to rule upon the admissibility of that evidence, in any case where the proof of guilt rests, as it does in the present case, upon circumstantial evidence it would be wrong for the judge, whether of his own motion or at the request of counsel to rule upon the probative effect of the evidence until all the circumstances relied on by the prosecution were before him. 28. In Plomp v. The Queen (1) - a case upon which both counsel rely for different reasons - the High Court of Australia held that evidence of motive should not be fragmented from the rest of the evidence in the case but should be considered together with it. Mr. Sanguinetti relies on the case, however, for additional support for the proposition which he finds most strongly put in the case of Atter(2) a brief report of which appears in the Criminal Law Review for 1956 at page 289. A prostitute was found dead in her flat. She had suffered a number of wounds inflicted with an axe or some such weapon. Atter admitted having been with her until 2.15 a.m. but said he had left her then because she had another visitor coming at 3.00 a.m. There was very inconclusive scientific evidence to show that some of the clothing belonging to Atter gave a positive reaction indicating the, presence of blood. It was impossible to say that it washuman blood. There was also a magazine found in Atter's room telling of a motiveless killing which the Crown alleged to be similar to the murder of the prostitute. Devlin, J., (as he then was) said :
29. In Plomp (1) the evidence was that the appellant's wife was drowned whilst surfing in his company. It was shown that the surf was not dangerous at the time and she was a good swimmer. The death, therefore, was not likely to have been merely accidental, although that in effect was the account which Plomp gave of it. Plomp had not been on good terms with his wife and had formed an association with a younger woman. He had proposed marriage to this woman a few days before his wife's death and did not tell her about his wife's death on the day that it had occurred. He had tried to make arrangements to marry the younger woman a few days after his wife's death and meanwhile had taken her into his home as his mistress. He had lied to the police about their relationship and had asked her also to back him up in these lies. 30. Mr. Sanguinetti says that the non-accidental nature of the death of the woman in her husband's company is the "piece of evidence that is more than mere suspicion" (Devlin, J. supra). 31. Mr. White relies on Plomp (1) primarily for the proposition that a case of circumstantial evidence is not to be treated any differently from a case in which the evidence is direct when the Appeal Court is deciding whether or not the facts proved are a sufficient basis upon which a reasonable jury could convict. That, however, is not in controversy. More to the point, perhaps, is the quotation in Plomp (1) from Peacock v. the King(3) which appears in the judgment of Menzies, J., at page 246:
32. Mr. White, who prosecuted the casein the court below, on several occasions in the course of his closing address to the jury noted the fact that each individual item of association might amount to nothing more than suspicion. He asked them to consider all those items together, however, and he clearly regarded the concluding circumstances of the appellant's watch upon the arriving walla-wallas and his repairing shortly thereafter in the company of the 4th defendant aboard the Lu Chiang as bringing the conspiracy and the appellant conclusively together. 33. The point is not an easy one. The circumstances on which the Crown relied here may not seem too far removed from that piling of suspicion upon, suspicion which was disapproved, as a valid ground for the finding of guilt by the Full Court in CHAN Yuet-kwan(4) . That was, however, an appeal from the decision of a District Judge. The Full Court was not considering the nature of the duty cast upon a judge considering a plea of no case in a trial by jury. No doubt it would be wrong to leave evidence to the jury which clearly amounted to no more than suspicion. It cannot be said that that is what happened here. In rejecting an application of "no case" by Mr. Sanguinetti at the trial, we must assume that the judge had in mind the full range of evidence which he subsequently put before the jury in a lengthy and meticulously accurate account which appears between pages 427 and 443 of the transcript. This included a reference to the close scrutiny by the appellant of the arriving walla-wallas and his subsequent trip to the Lu Chiang which the Crown has throughout clearly regarded as the culminating and most significant facts pointing to the guilt of the defendant taken in conjunction. With the evidence of prior association. Then comes a passage in the summing-up which has been criticized and is indeed the subject matter of the 11th ground of appeal. The judge said, having summarized the evidence, :
34. Mr. White concedes that the idea contained in the opening sentences of that passage is not happily expressed. No doubt, what is intended there is that there may be a combination of circumstances each one of which taken in isolation from the rest may be susceptible of an innocent explanation whereas looked at all together they may clearly point in the direction of guilt. Nevertheless, the concluding part of that passage does, we think, correctly state the law in relation to the duty of a jury considering the evidence in the light of their duty not to convict unless they are satisfied beyond reasonable doubt. It also clearly indicates that at the stage of no case the judge was very well aware that he was obliged not to leave the case to the jury if what was before him amounted, in his opinion, to nothing more than suspicion. 35. Without the final episode described in the surveillance evidence, it would be difficult to say that there was anything to go to the jury. Taken all together the several incidents described were, we think, capable of pointing to the guilt of the appellant. The vital part of that evidence, however, and the part which was capable of endowing all that had gone before with a sinister significance, was the evidence of the 16th prosecution witness concerning the behaviour of the appellant at the ferry pier. Unfortunately for the prosecution case, the witness Tong (P.W.16) did not fare well in cross-examination. Several times when challenged he was forced to admit that things which he had noted in his notebook as facts were rather his own conclusions from what he had observed. A good example of that is the account he gave of seeing the lot and 3rd defendants go into the Ocean Terminal Cable and Wireless Station at about half past seven in the evening of the 4th of April. He was quizzed on entries in his notebook in which it was noted that the 1st and 3rd defendants had sent a telegram on that occasion. When pressed on this, he said that he had made that note because he had seen them "fill up a form". In answer to a further question he said "they or someone filled up a form and handed it to somebody. I did not know whether they or he or they made a long distance call or sent a telegramme." 36. There were other deficiencies in his evidence as for example the two mutually and wholly inconsistent accounts he gave of the route taken by the appellant to the ferry pier on the morning of the 5th of April. Again, there was the difficulty he experienced in identifying a certain building by which he had purported in his note to mark a particular portion of the route taken by the appellant. It was in connection with this latter stumble that the judge felt impelled to issue him a stern warning on the necessity for telling the truth (page 119 of the transcript). 37. By fat the most serious weakness in Mr. Tong's testimony, however, relates to the vitally important account which he gave of seeing the appellant note the arrival of some forty walla-wallas and how he saw him carefully inspecting the people coming ashore from them. He was confronted with the proof of evidence which he had made prior to trial in which no mention whatsoever is made of that most important detail. Nor was it mentioned in the notebook kept by the-witness in the course of his surveillance duty. 38. Despite these deficiencies the judge was perfectly entitled to leave the case to the jury. Notwithstanding the fact that he himself perceived the doubtful and inconsistent features in the principal witness' evidence, he no doubt took the view that the case was not one of which it could be said that the necessary minimum evidence to establish the facts of the crime had not been called. The Court of Criminal Appeal in R. v. Barker(5) pointed out that it is not the judge's job to weigh the evidence and decide who it telling the truth or to stop the case merely because he thinks the witness is lying. That would be to usurp the functions of the jury. 39. The jury were reminded of these defects in the evidence 4f the 16th witness and were warned to consider the possibility that he might be lying. There remains, however, a lively rather than a lurking doubt as to whether the jury could fully have appreciated the vital importance of this ferry pier evidence to the whole: structure of the prosecution case against the appellant. In the end and notwithstanding that the judge did draw that evidence to the attention of the jury and did underline both its importance and its defects and despite the many careful warnings issued to the jury, in relation to this, as in relation to other parts of the evidence, we cannot say that the conviction, resting as it does solely upon the evidence of that badly shaken witness, is to be regarded as safe or satisfactory. On this ground alone we think the appeal ought to be allowed. 40. A further serious objection relates to the admission of evidence which it is said was inadmissible and irrelevant. It has been noted that the 1st, 2nd and 9th defendants pleaded guilty prior to trial. They were not present at the trial but evidence of these pleas of guilty was led by the prosecution. No objection was made to the introduction of this evidence at the time nor did the judge intervene to question its propriety. He did, however, in summing-up draw attention to this evidence and he warned the jury that it should not be regarded as evidence tending to prove the guilt of any of the defendants at trial. 41. There is no doubt that this evidence should not have been admitted. If warrant is needed for that proposition, one need look no farther than the decision in Moore(6) . If more recent authority be sought, it may be found, somewhat incidentally, in the case of R. v. Shannon(7) (for example, see the passage in the speech of Lord Simon at 1045 d). 42. The question here is whether the admission of this evidence can have been so severely prejudicial to the case of the appellant that on that ground also the conviction ought to be quashed, or whether in all the circumstances it would be possible to apply the proviso to section 83(1) of the Criminal Procedure Ordinance. 43. Mr. White has sought to uphold his introduction of this evidence on the ground that it was introduced purely to show the identity of the persons referred to in the surveillance evidence and to confirm that they were persons guilty of conspiracy with whom the appellant had been consorting. It was not intended, he says, to prove the guilt of the appellant or the other persons charged. But this is a distinction too fine to be discernible. Being identified thus as guilty persons, and guilty of the very conspiracy charged, the proof of their guilt in this way could not but be an additional element of proof in the case as a whole as it bore against the interests of all the charged defendants. The jury had to decide, upon the evidence put before them - (a) whether a conspiracy existed and (b) whether, if it did exist, the persons named in the indictment, or any of them, were parties to it. In putting the pleas of guilty before them in this way, the prosecution were, in effect, attempting by secondary evidence to pre-empt the jury's verdict upon an issue of fact. 44. It is true, of course, that even without the evidence of the pleas of guilty of the 1st and 2nd defendants, there was evidence which, if believed, identified them as the receivers of the drugs and therefore necessarily parties to the conspiracy. That evidence was given by the captain of the walla-walla boat and one of the Customs Officers who arrested the 1st and 2nd defendants. Neither of those witnesses purported to identify, from photographs or otherwise, the men who jumped into the harbour as the 1st and 2nd defendants. That identification was accomplished, if somewhat shakily, by the accomplice CHONG Keng-seng who was shown photographs of the two defendants and identified them as the 1st and 2nd defendants, the men whom he had seen come aboard the Lu Chiang and take away the dangerous drugs in the bags and cartons which were identified by him. These were the bags and cartons found in the walla-walla from which the two men had jumped. The photographs themselves, so far as the record before us goes, do not seem to have been formally proved but no question was made at the trial or upon the hearing of the appeal in that regard. It appears to have been accepted that identification by photographs of the 1st and 2nd defendants was achieved. Likewise it does not appear to be disputed that the 9th defendant was similarly identified by Customs Officers Tsang and Tong although it is difficult to see, from the record before the court, where and how that was done. It appears to be common ground that the person named in the indictment as the 9th defendant - a person well-known to the accomplice - was the same person who was referred to as the 9th defendant by the surveillance officers when giving evidence from the notes made during the surveillance. 45. Leaving aside the somewhat unsatisfactory nature of this identification evidence, there was evidence apart from the pleas of guilty to show that the conspiracy had embraced the activities of the three persons originally named in the indictment as the 1st, 2nd and 9th defendants. If the case as a whole were otherwise satisfactory, it would seem that the improper admission of the pleas of guilty would not, as Mr. Sanguinetti has put it, so "boost" the case for the Crown that we would be compelled to say that without it the jury might not have convicted. In other words the defect is one which would justify the application of the proviso. 46. A final objection relates to the evidence of the chief steward (4th defendant). The case against him was very strong. Not only was he identified in the testimony of Chong, the accomplice, as the prime mover behind the scheme but after arrest he had also made a statement of a confessional nature which was ample corroboration for the accomplice's evidence. The jury were warned in terms of extreme rigour to be careful not to use anything appearing in that statement as evidence against any of the other persons named in it. This included the 3rd defendant. 47. Mr. Sanguinetti contrasts this with what he regards as the unsatisfactory treatment given to the case of the 4th defendant and its relationship to that of the appellant. Thus (page 385 of the transcript) the judge said:
48. Subsequently counsel asked the judge to suggest to the jury that they should look at the case of the 3rd defendant first. The judge put this to the jury and he added :
49. However, very close to the end of his summing-up he returned to this theme and he said (page 441) :
50. In effect, counsel says, the judge was inviting the jury to consider in the first place whether the 4th defendant was guilty and then to use that finding in determining whether or not the 3rd defendant was guilty. Counsel relies upon the judgment of the Court of Appeal in Rhodes (8) where something on a very similar nature had occurred and a conviction for burglary was consequently- upset by the Court of Appeal. The appellant Rhodes was indicted together with another man, Mills. Mills had made a statement to the police which amounted to a confession. The Chairman warned the jury that Mills statement was not evidence against Rhodes but, because both men had given evidence that they were in each other's company at the relevant time, the Chairman asked the jury to consider whether Mills' admission satisfied them of his guilt and he pointed out that if Mills was guilty, they should consider the fact that Rhodes and he alleged that they were together all the time. The Court of Appeal regarded this as, effectively, the using of the guilt of one party in proof of the guilt of another. Page 27 Edmund Davies, J., says:
51. Mr. Sanguinetti then contrasts the treatment given to the 3rd defendant in this matter with what was said by the judge in relation to the cases of the 7th and 8th defendants (respectively, the chief engineer and the 2nd engineer). At page 415 a careful warning is given to the jury concerning the evidence of the accomplice Chong as it bore upon the cases of the 7th and 8th defendants (his evidence, of course, did not touch the case of the 3rd defendant, the present appellant). Having warned them about the dangers of convicting upon the uncorroborated evidence of an accomplice, the judge said :
52. It is true as Mr. White points out that that was a warning on corroboration the need for which did not exist in the case of the 3rd defendant. Nevertheless, looked at most generally it was a warning not to consider the proof of guilt of one party as evidence tending to show the guilt of another. As such this direction escapes the condemnation of the Court of Appeal in Rhodes (8) whereas the final direction in respect of the 3rd defendant's case does not. 53. It is always difficult to estimate what effect such directions have upon the mind of the jury but it is, perhaps, not without significance in this connection that the 7th and 8th defendants were acquitted. Indeed the fact that the 6th, 7th and 8th defendants were all acquitted is a consideration we have borne in mind in relation to the earlier conclusion concerning the unsatisfactory nature of the case against this appellant. 54. In any event we take the view that the principle in Rhodes (8) would militate against the application of the proviso in respect of the directions complained of. In the upshot, therefore, the appeal will be allowed and the conviction set aside. (1) (1963) 110 C.L.R.235 (2) (1956) Crim.L.R. 289 (3) (1911) 13 C.L.R. c12 (4) Crim. App. 212 of 1973 (5) (1977) 65 Cr. App. R. 287 (6) (1956) 40 Cr. App. R. 50 (7) (1974) 2 All E.R. 1009 (8) (196o) Cr. App. R. 44 page 23 Representation: A.J.J. Sanguinetti & Mrs. Verina Bokhary (Lau, Chan & Ko) for the Appellant C. White & J. Kenny, for Respondent/Crown |
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