Boonchai Chaiwanichya and Others v. The Queen

CACC000029/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 29 OF 1969

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Coram: Briggs, J., Huggins, J., McMullin, J.

Date of Judgment: 24 April 1969

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JUDGMENT

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Briggs, J:

1. The three appellants together with six other persons were charged with conspiracy to import dangerous drugs contrary to Common Law. The three appellants were convicted, the other six persons were found not guilty. The three appellants apply for leave to appeal against their conviction. In addition the first appellant applies for leave to appeal against the sentence imposed upon him which was five years' imprisonment and a fine of $10,000 of one year's imprisonment in default. We will grant these applications and will treat this hearing as the beginning of the appeals.

2. It is unnecessary to set out the facts in any detail. The case for the prosecution was that the three appellants together with a number of other persons were parties to an arrangement to import a very considerable amount of opium and morphine from Thailand into Hong Kong in the summer of 1968. The drugs were in fact never imported. But there was abundant evidence to show that such an arrangement existed.

3. The prosecution relied upon the evidence of several accomplices.

4. Various grounds of appeal have been put forward for the several appellants and it will be convenient to deal with the case for the first and second appellants together. Later with the case of the third appellant.

5. The principle ground of appeal urged on behalf of the first and second appellants is that there was no corroboration of the evidence of the accomplices: but that nevertheless the trial judge relied upon evidence as corroboration which was not in law corroborative.

6. It is true that the judgment refers to the evidence of certain police officers who saw the appellants on several occasions associating together. And it is also true that the trial judge refers to such evidence as being corroboration. But we think that reading the judgment as a whole, the judge was clearly of the opinion that there was no evidence to corroborate the story of the accomplices, namely that not only was there an association but that it was an association for an illegal purpose. The evidence of the police officers corroborated certain minor particulars of the evidence of the accomplices. But it was not such as to amount to corroboration of the conspiracy in law. And the trial judge did not find that the evidence was corroborative in that sense.

7. Counsel for the Crown suggested that so far as the first appellant was concerned the question of his association with the accomplices was in issue and that the evidence of the police officers was corroboration of this. Counsel also said that the second and third appellants had never given any explanation of their admitted association with the accomplices and that this fact coupled with the clear evidence of association amounted to corroboration.

8. Though we consider there may be some merit in these arguments we are of the opinion that the judgment read as a whole clearly shows that the trial judge was of the view that there was no evidence or reliable evidence of corroboration of the accomplices at all. And he proceeded on those grounds.

9. We consider that he was entitled to do this and moreover that he warned himself adequately of the dangers of convicting on the uncorroborated evidence of accomplices.

10. Counsel for the first appellant said that the words used by the trial judge when so warning himself did not go far enough. However we drew the attention of counsel to the case of Chiu Nang Hong v. The Public Prosecutor⁽¹⁾. This shows that when a judge sitting without a jury is mindful of convicting on the uncorroborated evidence of an accomplice all that is necessary is that he should make it clear that the danger of so convicting was present in his mind. Adopting that test we can find no fault with that part of the reasons of the trial judge for the verdict in this case.

11. Various other grounds of appeal were put forward on behalf of the first and second appellants but we do not think that it is necessary to deal with them.

12. We find that there is no merit in the appeals against conviction of the first and second appellants and their appeals are dismissed.

13. The position of the third appellant rests on a different footing. It is conceded by counsel for the prosecution that the trial judge misdirected himself on an important fact on which he placed great stress. The evidence in question was that the third appellant was seen to pay a sum of money for the hire of a junk which was to be used for the importation of the drugs. This evidence was given by one Fan Tak who was an accomplice. In his judgment the trial judge said that the evidence of this payment was corroborated by the testimony of one Li Ki whom he said he regarded to be a witness of truth. In this he erred. For Li Ki never gave such evidence, and there was no such corroboration. This was admitted by the prosecution. Though as Counsel for the Crown has pointed out there was other evidence which if believed might tend to show that the third appellant was concerned in the plan to import dangerous drugs. We do not think in view of the misdirection and the importance attached to that piece of evidence that it would be safe to allow the conviction of the third appellant to stand. And her appeal against conviction is therefore allowed.

14. There remains the appeal of the first appellant against sentence. We see no reason to interfere with the sentence and this appeal is dismissed. The sentences of the first and second appellants are to take effect in accordance with Section 67A(2) of the Criminal Procedure Ordinance.

Representation:

Bernacchi, Q.C. & Donnelly (Francis Chaine & Co.) for 1st Appellant.

Patrick Yu (Ho & Wong) for 2nd & 3rd Appellant.

Penlington C.C. for Crown.