HKSAR v. Leung Wong

CACC000338/2000

CACC 338/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 338 OF 2000

(ON APPEAL FROM HCCC 89 OF 2000)

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Coram: Hon Stuart-Moore VP, Wong and Stock JJA

Date of Hearing: 12 January 2001

Date of Judgment: 12 January 2001

Date of Reasons for Judgment: 8 February 2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 15 August 2000, following a trial in the Court of First Instance before Deputy Judge Woolley, the Applicant was convicted of conspiracies to manufacture a dangerous drug (count 3) and to traffic in a dangerous drug (count 4). He was acquitted on two similar charges (counts 1 and 2). The Applicant was sentenced to thirty years' imprisonment on count 3 and to a concurrent term of twenty-four years' imprisonment on count 4. Having sought leave to appeal against conviction on both counts, we indicated at the conclusion of the hearing on 12 January 2001 that we dismissed the application. We now give our reasons for having so decided.

Prosecution's case

2. As a substantial part of this application related to the alleged unreliability of the evidence presented against the Applicant and to the judge's treatment of this evidence, as well as an allegation that the verdicts on counts 3 and 4 were inconsistent with the verdicts on the earlier counts, it is necessary to look in some detail at the nature of the prosecution's case.

3. Counts 1 and 2 respectively alleged conspiracy to traffic in heroin and to manufacture heroin between May 1991 and 18 October 1992. The particulars in these counts alleged that the others who were involved with the Applicant as conspirators were Tam Kai-cheng (PW1), So Wai-ming (who did not give evidence) and other persons unknown. Count 3 (conspiracy to manufacture heroin) related to the period between 18 October 1992 and 9 October 1993. Count 4 (conspiracy to traffic in heroin) related to the period between 18 October 1992 and 11 February 1995. In count 3, the other conspirators were alleged to have been Tam Kai-cheng (PW1), Cheung Wai-kwong (PW2), Lam Kwok-on (PW3), and others unknown. In count 4, the same names appeared in the particulars as having conspired with the Applicant, together also with Wong Yut-wah (PW4) and others who were either named or unknown.

4. The evidence against the Applicant on counts 1 and 2 came solely from PW1 whereas on count 3 the evidence came from PWs 1 to 3 and, on count 4, from these witnesses and PW4. All of these witnesses were accomplices. PW1 was an admitted drug trafficker who, at the time he gave evidence, was serving a sentence of 30 years' imprisonment which had been imposed on him on 13 January 1996, having been convicted after trial of conspiracies to manufacture and to traffic in dangerous drugs. Similarly, PWs 2, 3 and 4 were drug traffickers, all serving sentences of 21 years' imprisonment or more. Only PW4 had pleaded guilty at his trial.

5. One of PW1's acquaintances from his long association with drug trafficking was a man called So Wai-ming, also known as "Ap Chai". In May 1991, So Wai-ming introduced PW1 to the Applicant, nicknamed "Ah Ben". It was following this introduction that the offences alleged in counts 1 and 2 were said to have occurred. Taking the most helpful analysis of the evidence provided by Mr Saw, SC, on behalf of the Respondent, PW1 testified to the effect that in the period between May and August 1991, the Applicant regularly delivered heroin for the partnership, consisting of the Applicant and So Wai-ming. In August 1991, it was suggested to the Applicant that he should become involved in the manufacturing side because he knew how to process and adulterate pure heroin. So Wai-ming suggested that this could be done at PW1's home at Room 1024, Heng Sing House, Heng On Estate, Ma On Shan. Shortly after this, So Wai-ming, the Applicant and another man called "Ah Pau" took equipment for manufacturing drugs to PW1's home and thereafter pure heroin was adulterated on a regular basis from these premises. PW1 described in detail the process and the subsequent distribution procedures. By way of example, he gave specific details about the first occasion when the Applicant had taken 16 brick shaped blocks of No. 4 heroin from the boot of his private car. They became 32 blocks after they had been adulterated. These blocks were subsequently delivered to customers over a period of two weeks.

6. PW1's evidence was that this process was regularly repeated over the next months and that on average they were processing 30-40 units per month. PW1's income at that time was said to have been over $100,000 per month.

7. After some months, it appears that PW1 became dissatisfied with the financial arrangements. He told the others that he did not want to work for them anymore unless the profits were shared equally. This did not come about and, in the result, the partnership was dissolved. It was agreed that So Wai-ming would move his operation out of PW1's apartment although this did not occur until some time in October 1992. Meanwhile, So Wai-ming and his syndicate continued to operate out of PW1's apartment. Eventually, So Wai-ming moved his operation to a house in Sun Tin Wai Village, Shatin, which PW1 had rented for him. The tenancy agreement, signed by PW1, was produced in evidence. The lease commenced on 18 October 1992 (the last date of the period covered by counts 1 and 2).

8. Before the dissolution of the partnership, the Applicant had discussed with PW1 his readiness to form a fresh partnership with him. It was the new arrangement that led to the allegations in counts 3 and 4.

9. Thereafter, PW1 and the Applicant carried out processing at the new premises in the Shatin district on average about three to four times a month, each of them being responsible for distribution to their own customers.

10. After three months, "Ah Pau" was arrested by the Wong Tai Sin Anti-Drug Squad in Sun Tin Wai Village. At that time, the police contacted PW1 as they wanted him to assist in the investigation because his name appeared on the tenancy agreement at Sun Tin Wai.

11. The Applicant had, by this time, recruited two other persons into the partnership, namely Cheung Wai-kwong (PW2) and "Jim Mei". In due course, "Jim Mei" left the syndicate and Lam Kwok-on (PW3) joined it. Given the attention of the police in the context of PW1's connection with the Shatin premises, the operation was moved to premises at 160, Prince Edward Road which were rented by PW2.

12. PW1 himself moved to another address in Prince Edward Road situated at 166-168 which was rented in the name of his girlfriend, Cheung Mei-yi.

13. During the same period, their manufacturing workshop was moved to Hentiff Building in Mong Kok.

14. In August 1993, So Wai-ming had used up his supply of dangerous drugs. He telephoned PW1 for more supplies and later he was apparently arrested in possession of the drugs he obtained.

15. PW1 then asked PW3 to rent another place near the Hentiff Building. A unit in Good Hope Building was located and rented at Block A, 10th Floor, Mong Kok City Building, 154-158 Prince Edward Road. The dates covered by this tenancy agreement were 12 July 1993 to 11 July 1995.

16. In early October 1993, the Applicant suggested that they move the drug manufacturing workshop back to PW1's original premises at Heng On Estate, Ma On Shan. This was done on 9 October 1993. On the same day, the Applicant, PW1 and another drug supplier, Cheung Mo-wai, were to deliver to Taiwan a batch of heroin which had earlier been imported from Thailand. PW1 went by air from Hong Kong to Taiwan at about 11.00 a.m. on 9 October 1993.

17. It was after PW1's departure for Taiwan that the authorities appear to have begun moving in on the syndicate.

18. Whilst he was in Taiwan, PW1 telephoned the Applicant who told him that on the day he had gone to Taiwan, the manufacturing workshop at his home had been raided by the Narcotics Bureau and that "Kwong Chai" (PW2) and "On Chai" (PW3) had both been arrested. Two days later, PW1 again telephoned the Applicant who told him that both "Kwong Chai" and "On Chai" had each been bailed in the sum of $50,000, and that the drug trafficking business in Hong Kong was suspended. The Applicant also said that he would come to Taiwan in around mid-October. This he did, and while he was there he told PW1 to remain in Taiwan. Eventually, in early November the Applicant sent his wife, Fong Sze-kan, to Taiwan and, on 9 November 1993, PW1 returned to Hong Kong from Taiwan with Fong Sze-kan.

19. On his arrival in Hong Kong, PW1 was detained but he was allowed bail in the sum of $50,000 the following day.

20. After he was bailed, whilst they ceased to manufacture heroin, the drug trafficking activities conducted by the Applicant and PW1 continued until around February 1995.

Grounds of appeal

Ground 1 - No adequate warning as to the absence of corroboration of accomplices' evidence

21. Against this background, Mr Grossman, SC, for the Applicant, has advanced five substantive grounds of appeal.

22. In his first ground, it was submitted that:

"In the special circumstances of this case where:

a) the only evidence against the Appellant was that of four accomplices;

b) there was no independent corroboration;

c) on the very facts upon which the accomplices were deposing, each of them had previously maintained his innocence and demonstrated that the oath was meaningless to him;

it was incumbent upon the learned Judge to give a special direction to the jury to the effect that they could only convict if they were sure that each of the accomplices had now genuinely repented, was prepared to accept the solemnity of the oath, had told the whole truth and that every word of the testimony of each was credible."

23. In advancing this ground, Mr Grossman placed considerable reliance on the fact that the case against the Applicant rested solely on the credibility of the four accomplice witnesses when all of them had been shown either to have lied on oath or to have concocted false defences at their trial which had taken place in 1996. Mr Grossman prepared a schedule setting out the numerous ways in which it was possible to demonstrate the proven lies and attempts to pervert the course of justice on the part of all the accomplices at their earlier trial. This included PW4 who, before he pleaded guilty, had lied when giving evidence during a voir dire and later in a Newton hearing which was held in order to determine the extent of his criminality.

24. Mr Grossman contended that in such circumstances, the judge should, in the proper exercise of his discretion, (following R v Makanjuola and E [1995] 2 Cr. App. R. 469; [1995] 3 All E R 730), have given the jury a special warning about the dangers of convicting the Applicant on the evidence of the accomplices, notwithstanding the abolition of the corroboration rule in respect of alleged accomplices under section 60 of the Criminal Procedure Ordinance, Cap. 221. He submitted that the general warning, given early in the summing up, was an inadequate form of words to bring home to the jury the readiness of the accomplices to give false evidence against the Applicant.

25. The judge, in his directions, had told the jury that they were entitled to reject or accept all or part of the evidence given by each of the witnesses. Leaving aside the evidence of a police officer which the jury had heard (which has no relevance to this application), the judge went on to direct the jury that they should not overlook the type of witnesses who had given evidence for the prosecution. He said, in this context:

"They are all criminals. Defence counsel has described them as vermin, the dregs of society, and you may think that he is not overstating the case. They are villains. They have engaged in a filthy trade which brings misery and death to thousands of people, and they have tried to lie in order to escape the consequences of their crimes. They also claim that they are the accomplices and co-conspirators of the defendant.

The evidence of such witnesses is always to be treated with extreme caution, and it is always dangerous to rely on such evidence - particularly where there is evidence of previous lies, and where, as here, the witnesses bear, or claim to bear, a grudge against the defendant - without some supporting other evidence which corroborates it. Here there is none outside the witnesses' own evidence, apart from the agreed evidence of the defendant's visit to Taiwan, which, to some extent may support the evidence of Tam Kai-cheng, or may be neutral."

26. This passage does not stand in isolation. The judge went on to say:

"There is nothing which connects this defendant to any of the crimes admitted by the witnesses except their own evidence. However, of course, you may look for corroboration in the evidence of the other witnesses if you accept their evidence or evidence of a particular witness as the truth, and are satisfied it sufficiently agrees in the most important aspects as regards this defendant.

In the case of each witness, therefore, consider whether he has been telling the truth; whether he has been accurate in the version that has been given. If you are satisfied that that witness has been honest and accurate when giving evidence in this court, then you may rely on that evidence. If you think that one or more witnesses is lying in respect of his account of the part played by the defendant, then I would advise you that it would cast considerable doubt on the evidence of the others, and it would be dangerous to rely on the rest of the evidence. If, at the end of the day, you have any reasonable doubt as to his guilt, as I said, you must give the benefit of the doubt to the defendant."

Later, in relation to the evidence given by PW1, the judge said:

".... it is also clear that witnesses in Mr Tam's position are able to petition for a reduction in sentence if their evidence successfully convicts someone else alleged to be in the drugs trade.... Tam (PW1) denies that is the reason he is here, but you may think there would be a very strong incentive to a man looking forward to at least 20 years in prison. Whether or not this is also sufficient incentive for him to give evidence which is not the truth, knowing that the immunity he has been given does not protect him if he is guilty of perjury, is a matter for you."

27. A little later, after pointing out an obvious discrepancy in PW1's evidence, the judge observed:

"You must also consider whether he is otherwise a man to be believed. As I have said he has been a man who has been engaged in this dreadful trade; he has no doubt damaged thousands of people as a result of his activities; he admits he lied under oath at his trial; he lied to police in statements made to them and to his legal representatives. You will recall counsel taking him through this series of lies he has told over the years in trying to evade responsibility for his actions. You may also think that he simply did not want to go prison and was prepared to say anything to avoid that. You will recall that counsel took Tam through his early statements he made to the police, and during previous court appearances, and he accepted, in respect of a great deal of what he said, he had lied, even to the extent of denying at one time he had a pager when he actually had one on him, and denying he had a car merely because at that stage it had been towed away. Stupid lies, you might think."

Later again, the judge said:

"The defence here says the reason which they say motivated Tam to lie in this trial is simply to gain an advantage for himself in a reduction of his sentence. Whether he is lying to you in this trial, or telling the truth about his dealings with the defendant, is a matter which you have to decide."

28. Lastly, as a further example of the strong warnings given by the judge in relation to PW1, although this also had general relevance to the other accomplices as well, he had this to say:

"Whatever they may say about reduction in sentence, and each has said it was not a material consideration in giving evidence, you may well find that in fact each must be hoping for such a reduction in testifying and accordingly, has not been entirely honest in that regard. So in respect of all four witnesses, while it is for you alone to decide what weight you give to their evidence, I must caution you to examine that evidence with particular care, for each of them in saying what they have may have been more concerned about protecting their own interests than about speaking the truth. Bear in mind that risk before deciding whether or not you feel able to accept what they told you about this defendant."

29. Similar directions to those in PW1's case were again given when the judge turned his attention to the remaining accomplices, PWs 2 to 4 saying, for example, in the case of PW4 that "I cannot emphasise again too strongly the need for caution in considering the evidence."

30. It is apparent from these passages in the summing up that the judge considered a strong warning should be given to the jury about acting on the evidence given by the accomplices. In the proper exercise of his discretion, the judge was entitled to take this view which he had expressed in forthright and clear terms. It was not incumbent upon the judge, as Mr Grossman suggested, to go further by directing the jury that they could only convict if they were sure that each of the accomplices had genuinely repented or that they should be satisfied that every word of the accomplices' evidence given on oath was credible. All that it was necessary for the judge to do, in the particular circumstances of this case, was to ensure that the jury was alive to the various motives that may have caused the accomplices to lie, leaving it to the jury to decide, in spite of the presence of those motives, whether the accomplices had in fact told lies against the Applicant.

31. The judge's directions to the jury in this respect were not merely adequate. They were clear, helpful and scrupulously fair.

32. We can find no substance in ground 1.

Ground 2 - Directions to accept or reject parts of the accomplices' evidence

33. In his second ground of appeal, Mr Grossman submitted that:

"a) In the circumstances of this case, the Judge erred in directing the jury that even if they disbelieved a witness on one part of his evidence, it did not automatically mean that they should reject or disbelieve the whole of that witness's evidence (4Q-5E).

b) The Judge erred in directing the jury that they could pick and choose which parts of the evidence they believed (5F-H; 23M-24F)."

34. In the passages to which reference is made in this ground, the judge (at page 4Q) said:

"Now the next statement is simply a matter of common sense. The fact that you disbelieve or do not accept a witness on one part of his or her evidence does not automatically mean that you should reject or disbelieve the whole of that witness evidence. You may, for example, find a witness memory in respect of one thing is faulty; time passes, and we, at the best of times, do forget - sometimes each of us can get confused - but you may still find that another part of the evidence of the same witness is reliable. It is entirely a matter for you what weight you attach to the evidence and which witness you believe or disbelieve. It is open to you therefore to accept the whole of a witness's testimony or to reject the whole of a witness' testimony, or to accept some parts of it and reject their parts of it."

35. At page 23M, the judge went on to say:

"I should say a word about how you should approach inconsistencies. When you have an apparent inconsistency in the evidence of two witnesses you will wish to decide whether there is in effect, in the context of the evidence as a whole, an inconsistency, and then decide whether it is material and relevant to what you have to decide, or, on the other hand, whether it is irrelevant and perhaps insignificant.

The fact that there is an inconsistency or more than one may lead you to conclude that a witness is generally not to be relied on. On the other hand, you may conclude that part but not all of that witness's evidence is unreliable, or you might think there is a reason for the inconsistency which does not make the witness's evidence unreliable in its central aspects. For instance, where a number of people have been involved over a period - in the events being described, and it was some years ago - it may be understandable if witnesses' memories as to what happened on a given occasion differ. On behalf of the defendant, of course, it is argued that such inconsistencies are an indication that they have concocted their evidence. Again, it is a matter for you as sole judges of the facts, and you have to decide what weight, if any, you give to the evidence of the prosecution witnesses, bearing in mind such inconsistencies as there are."

36. On this ground, we were again unable to find any substance to Mr Grossman's submissions. The judge had given what may well be regarded as standard directions to the jury about their approach to the evidence of the witnesses, which were just as applicable to accomplices as they were to any other kind of witness, accomplices or not, and he had very properly left it to the jury to decide what they accepted and what they rejected.

Grounds 3 and 4 - Inconsistency in verdicts

37. The third ground made the complaint that the verdicts on counts 3 and 4 were inconsistent with the verdicts on counts 1 and 2 "in that while (the jury) were not prepared to accept the evidence of PW1 on counts 1 and 2, by virtue of their finding(s) of guilt in respect of counts 3 and 4 they did accept his evidence on those counts". Ground 4, by way of alternative, simply alleged that the verdicts on counts 3 and 4 were perverse.

38. We do not consider these grounds require lengthy discussion. It is well established that it is for an applicant or appellant to satisfy the court that the verdicts returned by a jury are so conflicting that no reasonable jury could have reached them. (See: R v Durante [1972] 1 WLR 1612; R v Cheng Man-to [1987] 2 HKC 261; HKSAR v Ho Kin-sang CACC 449/1999 (unreported)). As we have said already, counts 1 and 2 were wholly dependent on the evidence of PW1 whereas PW1's evidence on counts 3 and 4 was strongly supported by PWs 2 to 4.

39. Obviously, in the present case the jury were not prepared to convict on PW1's unsupported evidence. They were, however, prepared to do so where some support could be found. In this sense, the verdicts are readily explicable. The verdicts were neither inconsistent nor perverse and accordingly these grounds must fail.

Ground 5 - Corroboration of one accomplice's evidence by another

40. In his fifth ground of appeal, Mr Grossman submitted that the judge erred in directing the jury "that they could rely on the evidence of the other accomplices to corroborate the evidence of each (accomplice) witness". The particular passage which is criticised has already been cited in the context of ground 1 and needs to be repeated for the sake of clarity:

"However, of course, you may look for corroboration in the evidence of the other witnesses if you accept their evidence or evidence of a particular witness as the truth, and are satisfied it sufficiently agrees in the most important aspect as regards this defendant."

41. Mr Grossman argued that having given this direction, coupled with an earlier direction that "it is always dangerous to rely on (accomplice) evidence .... without some other supporting evidence which corroborates it", it was incumbent (relying on R v B (MT) [2000] Crim L R 181) on the judge to identify any independent evidence to the jury. He made the point that accomplice witnesses, because of the danger that they may have put their heads together through a mutual desire to serve their own interests, could not corroborate each other and yet the jury, no doubt encouraged by the judge to feel able to do so, appeared to have treated the accomplices (PWs 2-4) as having provided support for PW1 whose evidence they had not been prepared to accept on counts 1 and 2 where it had stood alone. As to this contention, Mr Grossman placed some emphasis in his written argument on a passage taken from Bruce & McCoy: Criminal Evidence in Hong Kong, Issue 9, XIII [5]-[50] which reads:

"As a general rule, suspect witnesses of the type discussed above cannot corroborate each other. The principal concern in this field is that two accomplices might get their heads together because they have the same interest to serve. However, where it is established that these witnesses have not put their heads together, it is open to a judge to tell a jury that they may take the testimony of one such witness into account in assessing the other: R v Turner [1980] Crim LR 305; R v Au Yeung Chi-kwan & Ors [1993] 2 HKC 71 (sic)."

42. In R v Au Yeung Chi-kwan [1993] 2 HKC 134, the Court of Appeal held, applying what was said in Turner, that the trial judge had correctly directed the jury that where there was no danger of collaboration between the accomplices, the evidence of an accomplice can be looked at in order to assess the credibility of another accomplice. The court went on to say that the trial judge had also been right to warn the jury that:

"The evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. It seems to us clear that this warning must be given as the only danger which ceases to exist is that of fabrication by collaboration. Each witness remains an accomplice in a position, as are all accomplices, convincingly to fabricate to serve his own purposes."

43. Before dealing with Mr Saw's arguments in response to this ground, we feel bound to say that the decisions in Au Yeung Chi-kwan in 1993 and other cases along similar lines amply demonstrate the muddle the common law had got into where corroboration was concerned. How laymen on the jury, let alone lawyers in general, could be expected to understand why an accomplice who had not collaborated with another accomplice could be looked at "when assessing the credit of another (accomplice)" (page 142I) and yet could not be used to "corroborate the evidence of another accomplice", we find difficult to comprehend. No doubt examples of this kind led, not before time, to the reform of the law brought about by section 60 of the Criminal Procedure Ordinance.

44. Mr Saw at first submitted that the proposition that one accomplice cannot in law support another was no longer correct in the light of section 60(1) of the Criminal Procedure Ordinance, Cap. 221. This provides as follows:

"Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is an alleged accomplice of the accused is hereby abrogated."

45. This provision mirrors the similarly worded legislation in England to be found in section 32(1) of the Criminal Justice and Public Order Act, 1994. The effect of this section was considered in R v Makanjuola, R v Easton [1995] 2 Cr App R 469; [1995] 3 All ER 730. These jointly heard appeals were concerned with the uncorroborated evidence of the victims of sexual offences. Counsel for the appellants had argued that notwithstanding the abolition of any requirement to give the full corroboration warning, the judge should still use his discretion to do so in cases where the evidence was solely dependent on a complaint in a sexual case or the word of an accomplice. In dismissing the appeal, the court held that if this submission was right, Parliament would have enacted section 32(1) in vain and that whilst a judge does have a discretion to warn the jury if he thinks it necessary, the use of the word "merely" in section 32 (and in section 60 of the Hong Kong Ordinance) indicated that Parliament did not envisage such a warning being given just because a witness complained of a sexual offence or was an alleged accomplice. Lord Taylor CJ went on to observe, at page 472:

"Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this Court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content."

46. This approach was adopted in R v Chu Ip-pui [1997] HKLRD 545 where Mortimer JA stated at pages 552C-D:

"We venture to suggest that the purpose of the abrogation of the old rule by s.60 of the Criminal Procedure Ordinance is to free the decision-maker of the technical - and mostly judge-made - rules of the common law on corroboration thereby to permit the judge or jury to concentrate upon the weight to be given to accomplices having regard to such supporting evidence or circumstances as may be proved. Accomplices have not by this reform suddenly become more credible or less dangerous as witnesses, but the approach is now left to the discretion of the judge. It is necessary that such discretion is unfettered so that he can achieve a fair trial."

47. Both Makanjuola and Chu Ip-pui were considered by this court in HKSAR v Law Hay-chung CACC 628/1998 where the point was taken that a judge sitting in the District Court had allowed the evidence of accomplices to corroborate each other. The judge in that case had taken the view that whenever possible, in regard to the evidence of accomplices, he would look for "independent supporting evidence". As to this, at page 14 of the judgment, the court had this to say:

"It is plain, since the introduction of section 60, that attempts to re-impose the 'old' corroboration rule which was in existence beforehand have been rejected by the courts. The same point which has been taken in the grounds we are now considering was raised in R v Thirlwell and Pang, CACC 332/96 (unreported). Mr. Plowman appeared in that case for Thirlwell, but it was a point raised by counsel for the 2nd applicant. The Court (at page 16) summarised counsel's argument as being that:

'.... the wisdom of the law prior to the enactment of section 60 must not be ignored and judges today must look to the old law when directing themselves as to the way in which they should treat accomplice evidence.'

Power, Ag. C.J., dealt with this by saying:

'This submission we also reject. We cannot emphasize too strongly the observation in R v Makanjuola [1995] 1 WLR 1348 in which Lord Taylor said at 1352:

"Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated."

Section 60 means what it says. The former requirements compelling a judge to warn himself about convicting on uncorroborated evidence of accomplices are abrogated. The judge in the present case did more than he was required to by warning himself in explicit terms of the need for caution when assessing the evidence of the accomplices.'

We have not considered it necessary to consider whether the support given by one accomplice to the evidence of another accomplice could, in the circumstances of the present case, have amounted to "corroboration" in the technical sense of that word. The reason for saying this is that it is abundantly plain that the judge was referring to his desire to find some other evidence "wherever possible" which gave circumstantial support from a different and independent source to the accomplice for whose testimony support was being looked. It has been rightly emphasised by counsel for the Applicants that the judge had every reason to be on his guard. The accomplices had engaged in corruption of a grave kind and there were several other flaws to the characters of PW2 and PW6 on which they were justifiably attacked as to their credit. The judge had taken full cognisance of these matters and, in his discretion, he had fairly and, subject to what we say later, even wisely perhaps, decided that, wherever possible, it would be prudent to look for other supporting evidence before he could feel satisfied of guilt to the required standard."

48. In our view, the situation confronting the trial judge in the present case was very similar to the circumstances in Law Hay-chung. Furthermore, it is plain as a matter of logic and from the authorities which we have cited that section 60 of the Criminal Procedure Ordinance is a reform which does not have any bearing, contrary to Mr Saw's initial submission, on whether one accomplice can in law corroborate or support another; and, for reasons which we will set out, it is unnecessary for the purpose of this application to distil the effect of the authorities on this question.

49. Mr Saw, modifying his argument in the light of these authorities, submitted that whether or not one accomplice can corroborate another in the technical sense, provided a direction is tailored to meet the circumstances of the particular case, for example by drawing the jury's attention to the inherent dangers in the testimony of an accomplice witness, such a direction will not be interfered with on appeal. He further submitted that the directions given to the jury as to the approach they should take to the evidence of accomplices (cited under ground 1 above), demonstrate on two bases that the judge was not telling the jury to look for corroboration in any strict legal or technical sense. Firstly, the judge never defined what he meant by "corroboration" and, secondly, such a direction would have been contrary to the terms of section 60 of the Criminal Procedure Ordinance. He submitted, therefore, that the judge was merely asking the jury to look for supporting evidence.

50. Finally, in this context, we were reminded of a passage taken from R v Wong Wai-to CACC 371/1996 (unreported) where, at page 5, Mortimer JA said:

".... There are no circumstances in which it is ever necessary for a judge to give the old obligatory warning or look for corroboration in the technical sense when accomplice evidence is given."

51. Returning to the present case, it is apparent that the judge made plain to the jury the very real dangers involved in the evidence of the accomplice witnesses. Earlier, we cited one passage where the judge told the jury that defence counsel's description of them as "vermin, the dregs of society," may not have been an overstatement and that they had tried to escape the consequences of their crimes by lying in the earlier proceedings against them. The judge, in another passage cited earlier, had suggested to the jury that they might think that an accomplice, knowing of the possibility of a reduction in sentence if his evidence led to the conviction of an offender, would find this a strong incentive to give evidence. These passages are not to be viewed in isolation. The judge went on to highlight in respect of each accomplice the evidence which gave rise to the need for caution on the part of the jury in their approach to these witnesses.

52. It is clear to us that the judge was seeking to say that the jury could look at the evidence of the accomplice witnesses, all of which it goes without saying was admissible against the Applicant, to see whether the evidence given by one of them gave any support to what another had said. The word "corroboration" was perhaps not well chosen as a lay jury were unlikely to have understood it quite so well as the word "support", but it was plainly meant to have been taken in that sense and not in some other technical sense understood by lawyers.

53. There was, in our view, no reason in common sense, in logic or in law, why the jury should not have taken into account the evidence given by each of the accomplices for the purposes of determining what evidence could be relied upon as both truthful and accurate. Before the jury could reach the conclusion that the evidence of the accomplice witnesses lent any support to one another, they would have had to reject the proposition which had been put to all of them in cross-examination that they had conspired to give a concocted story against the Applicant. This aspect was fully dealt with by the judge towards the end of the summing up. Once that proposition was rejected, there was no reason why the jury should not have looked at the separate testimony of each accomplice to see whether support was given by one or more of them for what had been said by another accomplice, in order to dispel any doubts there might otherwise have been over the integrity of that evidence. In particular, in telling the jury that they might look for support in the evidence of another witness if they first accepted the truthfulness of his testimony, which was plainly the effect of what the judge was telling them in the passage about which complaint is made, he was not in our opinion saying anything which was contrary to either logic or law. Ultimately, it was for the jury to decide whether they believed the accomplices. Plainly they must have done so in large measure in order to have convicted.

54. We reject the submission that the judge misdirected the jury in their approach and this ground must also fail.

Conclusion

55. There was a wealth of evidence against the Applicant and the points for and against him arising from that evidence were fully and fairly reviewed by the judge when summing up to the jury. We could find no reason for saying that the verdicts were in any sense unsafe or unsatisfactory. The application was therefore dismissed.

Representation:

Mr D.G. Saw, SC, DDPP and Ms Laura Ng, GC, of the Department of Justice, for the Respondent.

Mr Clive Grossman, SC and Mr Osmond Lam, instructed by Messrs Tang & So, for the Applicant.