The Queen v. Fong Sui Ming and Another

CACC000321/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Yang, V.-P., Barker, J.A. & Bewley, J.

Date of hearing: 21st January, 1988.

Date of delivery of judgment: 21st January, 1988.

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J U D G M E N T

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Yang, V.-P.:

1. The applicants Fong Sui Mina and Yeung Kwok Ying apply for leave to appeal against their convictions by Judge Moylan on a charge of obtaining property on a forged instrument.

2. The charge was that Fong and Yeung together with one Yuen Sai Ching (who gave evidence in the court below as PW4) and other people did, with intent to defraud, obtain from the victim PW3 some 334 bales of cloth by virtue of a forged cashiers order knowing that it was a forged document.

3. The main evidence for the prosecution came from PW4, whom the, judge found to he an accomplice. It is clear from his Reasons for Verdict that the judge bore in mind "the suspicion one must bring to bear on evidence of an admitted deceiver."  However, it is not clear in his Reasons for Verdict as to whether he found PW4 to be a truthful witness whom he could accept without any corroboration of his evidence or whether he found that there was indeed corroboration.   The learned judge said -

"I find further that there is other evidence and proper inference from evidence that establishes the complicity of Al and A2 in this offence and that reinforces or corroborates the evidence of P.W.4.

It could perhaps be argued that here the judge's phraseology was unfortunate, and the word "corroborates" was used only in a lay sense rather than a technical sense.  However, we are of the view that the judge probably used the words "reinforces" and "corroborates" in quite different senses, "reinforces" meaning support and "corroborates" referring to corroboration in a technical sense.

4. Furthermore, the judge does not indicate that there was evidence amounting' to corroboration. Nor does he identify such evidence.  In this respect we think the judge erred.

5. Mr. Sulan argues on behalf of the Crown that the judge probably convicted the two applicants on the evidence of the accomplice alone.  Having borne in mind the necessity for corroboration, we do not, with respect, feel that one could read the Reasons for Verdict in the way suggested.

6. Mr. Sulan also argues that there were in fact three pieces of evidence capable of corroboration in respect of PW4's evidence on the applicant Fong.  Firstly, Fong gave a false name Lam, and this evidence was capable of corroborating PW4's evidence that Fong was a party to the fraud. Secondly, there was the so called "consortium" conversation conducted by Fong in the car.  That is evidence, Mr. Sulan argues, capable of corroborating PW4's evidence that Fong was not an innocent party as he claimed. The third piece of evidence was PW4's introduction of Fong as a partner.  On the basis of these three pieces of evidence, Mr. Sulan invited us to apply the proviso in respect of Fong.

7. We do not come to a view as to whether these three pieces of evidence were or were not capable of corroborating the evidence of the accomplice.  The Reasons for Verdict seem to indicate that there were other matters which the learned judge might have taken into consideration as corroboration though we are not clear in our minds what evidence that was.  It would not, in our view, be right to apply the proviso.  There is no suggestion that the proviso may be properly applied in Yeung's case.

8. For these reasons, the applications are allowed, and the applications treated as hearing of the appeal. We allow the appeal, quash the convictions and set aside the sentences.

Representation:

G. Alderdice (Tang, Wong & Cheung) for D1

A.J.J. Sanguinetti, Cheng Huan & A. Chan (Philip S.W. Wong & Co.) for D2

J. Sulan, for Crown/Respondent