Yim Chor Man @ Yim Kwan @ Yim Kam Tai @ Yim Kai Tai and Others v. The Queen
Read the full judgment text of CACC 345/1975 on BabelCite. This Court of Appeal judgment.
1. The three Appellants were convicted in the District Court of conspiracy and three offences of theft. They appeal against their convictions and sentences. The alleged conspiracy was one to defraud a man called PUN Ting-chau and the three thefts were the successful outcome of the conspiracy.
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CACC000345/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 345 OF 1975 -----------------
----------------- Coram: Huggins, McMullin & Trainor, JJ. Date of Judgment: 8th September 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The three Appellants were convicted in the District Court of conspiracy and three offences of theft. They appeal against their convictions and sentences. The alleged conspiracy was one to defraud a man called PUN Ting-chau and the three thefts were the successful outcome of the conspiracy. 2. The first ground of appeal which we have allowed to be argued before us is
As we pointed out, even assuming that this should read "'particeps criminis' or an 'accomplice'" the form of the notice of appeal successfully obscured the real point which it was desired to argue. Moreover, with respect to counsel for the Appellants his arguments on this aspect of the case were not entirely consistent. In the leading case on the subject, Davies v. Director of Public Prosecutions (1954) 38 Cr. App. R. 11, the House of Lords considered the extent of the rule that where the prosecution sought to adduce evidence of an accomplice the jury must be warned of the danger of acting upon such evidence unless it is corroborated. Lord Simonds said at p.32:
In the case before us counsel for the Appellants did not indicate within which of these three classes of witness he alleged Mr. Pun came, but merely submitted that there was a doubt whether he was an accomplice and that the judge failed to consider that issue. However, counsel had previously said that he did not contend that Mr. Pun was an accomplice but rather that he was "in the position of an accomplice", by which we understood him to mean that his position was analogous to that of an accomplice. Again, counsel suggested that the Court of Appeal in Reg v. Vernon 1962 Crim. L.R. 35 had extended the category of accomplice beyond the three classes mentioned by Lord Simonds and he invited us to extend it further so as to include a witness like Mr. Pun. 3. In our view any argument that Mr. Pun was an accomplice cannot be sustained. Davies v. Director of Public Prosecutions (supra) makes it abundantly clear that the natural and usual meaning of the word "accomplice" is a particeps criminis, the crimen being the very offence with which the defendant is charged. It is unfortunate that the courts have ever sought to extend the meaning of the word rather than to extend the rule by applying the underlying principle to analogous cases. However, that is how the law has developed and we must take the law as we find it. Nevertheless Lord Simonds expressly said that the category of "accomplices" ought not to be extended, and that necessarily means that the three classes within that category ought not to be extended. Mr. Pun was not particeps of the crime with which the Appellants were charged and cannot come within Class 1. Mr. Sanguinetti argued that the Court of Appeal had been willing to extend the category of accomplices by including any thief who was called to give evidence against the receiver of the goods he had stolen. He also seemed to suggest that the Court of Appeal had created a fourth class, but we do not think that is correct. The question decided by Reg. v. Vernon was whether the witness might be a particeps criminis, i.e. a person who fell within Class 1: if he was, then the judge ought to have left to the jury the issue accomplice vel non. In discussing the position of a thief it was recognized that he was not, as was a receiver in respect of the thief, necessarily a person who was closely connected with a receiver of the goods he had stolen: if they had conspired together that the one would steal and then pass the goods to the other, both were particeps of the crime of the other, but the receiver could commit his offence without the thief's being directly involved in it. On a proper reading of Reg. v. Vernon the Court of Appeal did not purport to extend the category of accomplice at all. In particular it was never there suggested that thieves should be brought into Class 2 nor do we see any justification for any such extension: receivers were made a class of their own because, knowledge of the theft being necessary to their conviction, they were so closely connected with the thief that even in cases where they were not actually particeps of the theft they had a motive for trying to implicate the thief. In cases where they were particeps of the theft they would in any event fall within Class 1. 4. Mr. Sanguinetti referred us to Mohammed Farid (supra), which was the source of Lord Simonds's third class of "accomplice". As Mr. Sanguinetti does not suggest that Mr. Pun was within a the four corners of that class but that he was "in the position of an accomplice with regard to other illegal acts" (the illegal acts being the "conspiracy" to defraud the third Defendant), that case is, strictly, irrelevant to the ground of appeal which is before us, but we think it right to go on to consider whether we ought to require the giving of a warning in cases where a witness, although not an accomplice, may have a similar motive for giving false evidence against the defendant. We could have wished that the law had developed differently for there can be no doubt that as it stands it is irrational, but this is a result which all too often occurs where a matter of common sense becomes enshrined in a rule of practice which in turn acquires an authority equivalent to that of a rule of law. Chief Baron Joy in a book which is cited in 7 Wigmore (3rd Ed.) 322 (2057) points out the arbitrariness of the rule as it existed in his day and we appreciate that in the present case the necessity or otherwise for a warning depended entirely on matters which did not affect the mind or the actions of Mr. Pun. However, as we have said, we must take the law as we find it. If we further extended the application of the principle by analogy, we would in effect be extending the category of "accomplice", which Lord Simonds said ought not to be done. That is not to say that it is not open to a judge to give a warning in such a case, but merely that he is not obliged to give a warning: he is back in the position which existed before the rule of practice came into existence and may properly give the jury the benefit of any advice which his experience suggests to him would be appropriate in the individual case. It will often be desirable that such a warning should be given, even though the danger may be apparent. 5. In view of what we have said paras. (i) and (iii) of Ground 2 of the Amended Grounds of Appeal might not require discussion were it not for the contention that counsel for the Crown in the court below is recorded as having conceded that corroboration was necessary - presumably, it is said, on the basis that Mr. Pun was an accomplice. Mr. Alderdice agrees that he did say corroboration was "required" but he says he meant only that it was desirable and not that the law made it essential. We are satisfied that, if such a concession was made, or was understood to have been made, and was relied upon by the defence in such a way that the Appellants would be prejudiced if we were to allow the Crown to contend in this Court that Mr. Pun was not an accomplice after all, it would be wrong for us to look beyond the concession. As it appears to us, the concession was not made until the closing speech of counsel for the Crown. All the evidence had been completed and the decision not to call the Appellants or any other witness for the defence was in no way affected by it. Unless some injustice will be done it is always open to the Crown to support the convictions on grounds other than those advanced in the court below. In our view no injustice can result here. 6. Nevertheless it is contended that the learned judge treated as corroboration matters which were not capable of being corroboration and that, even though corroboration may not have been necessary, that is fatal to the convictions because the judge might still not have believed Mr. Pun had he realized there was no corroboration. While it is true that, as was said in Director of Public Prosecution v. Kilbourne 1973 A.C. 729, 741 (per Lord Hailsham), "the word 'corroboration' by itself means no more than evidence tending to confirm other evidence" and (per Lord Simon at p.750) "there is nothing technical in the idea of corroboration", nevertheless there is a particular type of corroboration which is, in a sense, technical, namely corroboration "which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it" and when lawyers use the word "corroboration" it is usually that particular type to which they are referring. It was for that reason that the Privy Council in CHIU Nang-hong v. Public Prosecutor 1964 1 W.L.R. 1279 held that they could not assume, where the word "corroboration" had been used by the trial judge, that he meant only "consistency". Although it is probably desirable that the word should only be used in the sense we have indicated, no harm is done if it is used otherwise where corroboration is not required. Here we have a case where corroboration was not required but where, in view of the concession made by counsel for the Crown, the safer course would be to assume that the judge thought that it was required. We think that in such a case, also, we must assume that the judge has used the word "corroboration" in the sense we have indicated. Was the evidence upon which he relied as corroboration capable of being corroboration? We think that it was not. As regards the second and third Appellants the position is clear: the other evidence was consistent with that of Mr. Pun but did not have the elements required in corroborative evidence. As regards the first Appellant the position is not quite so obvious. He was found in possession of equipment capable of being used for cheating and of bundles of paper which had the appearance of being bundles of banknotes but which in fact consisted mainly of blank sheets of paper. Mr. Pun's evidence was that similar bundles of what appeared to be banknotes had been produced by the Appellants at the time of the alleged cheating and that subsequently someone had said in the presence of the first Appellant that the bundles which had thus been produced were not in fact banknotes. The finding of the bundles by the police was consistent with the story told by Mr. Pun and the Crown contends that this evidence was capable of sufficiently corroborating the evidence of Mr. Pun. The evidence that the first Defendant remained silent when, in his presence, someone said the notes used at the time of the games were false was clearly not sufficient corroboration, because it was given by the very witness whose evidence was to be corroborated. Could the finding of the fake notes in the possession of the first Defendant constitute sufficient corroboration? In our view it could not. It certainly tended to show that the first Defendant was intending to cheat someone at some time, but if one disregards the tacit admission that fake notes were used at the time of the games there is nothing to connect the notes which were found with the games in which Mr. Pun played. In any event the finding of the notes was as consistent with an intention to cheat the third Defendant as with an intention to cheat Mr. Pun: the fact that Mr. Pun says he was not aware that fake notes were being used does not necessarily mean that the third Defendant was aware of it. Therefore this evidence did not implicate the first Defendant in the particular offence charged. We think, therefore, that the judge did misdirect himself in the manner alleged. Is that fatal? Clearly where corroboration is required and matter which is not capable of being corroboration is treated as if it were, the conviction cannot stand (Reg. v. Thomas (1959) 43 Cr. App. R.210) but no case has been cited where matter was treated as corroboration although corroboration was not required. What we ask ourselves is whether we are satisfied that no substantial miscarriage of justice has occurred as a result of this misdirection. Having anxiously considered the judgment we are satisfied that the judge was convinced of the substantial truth of Mr. Pun's evidence even without the supposed corroboration. As to para.(iii) of Ground (2) it is enough to say that while an express warning regarding the inherent danger of convicting without corroboration may have been desirable it was not essential. In so far as the appeal is based upon complaints relating to corroboration it must, therefore, fail. 7. The other alleged misdirection is contained in the following passage:
It is argued that this amounts to adding suspicion to suspicion, which was condemned in CHAN Yuet-kwan v. Reg. Crim. App. No. 212 of 1973 as explained in NG Sheung-kwan v. Reg. Crim. App. No. 516 of 1974. What the court was dealing with there was an attempt to draw an inference of guilt from other inferences which were not themselves justified. That is a very different thing from drawing an inference of guilt from established facts and it seems clear to us that a combination of apparently innocuous circumstances may in a proper case be the foundation of a finding of guilt. 8. Counsel has been unable to show us that there is any justification whatsoever for the complaint in para. (v) of Ground 2, relating to the burden of proof. 9. The next ground of appeal relates to the evidence of Senior Superintendent MacMahon of the Royal Hong Kong Police. It is objected that he was wrongly received as an expert. It was only in the argument on behalf of the Respondent that it was made to appear to us that, expert or not, Mr. MacMahon gave any expert evidence: indeed, it was argued on behalf of the Appellants that his evidence did not relate to matters of science or art. If that were so it would be irrelevant whether he was an expert or no. However, he did express an opinion as to the degree of chance involved in a tien sin kuk and as to the likelihood of a victim's winning or losing. That was conceded by Mr. Sanguinetti to be a matter of expertise to which a duly qualified witness could speak, for he expressly said that there could be a person qualified to give such evidence and the grounds of appeal also predicated that there could. What he submitted was that Mr. MacMahon was not peritus in these matters and that no one other than someone who had been present at the time of a tien sin kuk (whether as victim, swindler or onlooker) could be an expert. With respect we think there is an error in the assumption that there could be an expert in such matters as that on which Mr. MacMahon expressed an opinion and we certainly cannot agree that an onlooker, far less a victim, of a tien sin kuk would necessarily be an expert. What is required is, first, that the subject matter of the evidence should be one of science or art or the like and, secondly, that the witness should have acquired a special knowledge, by study or from experience, of the subject to which he speaks (see Clark v. Ryan (1960) 103 C.L.R. 486), it being for the judge to decide whether he thinks the witness's qualifications are sufficient. The "expert" evidence given by this witness, i.e. the opinion evidence, related to the chances of a victim's winning or losing. As it seems to us that must necessarily depend upon the circumstances of each individual case. One swindler may be more skilful than another or may have more reliable equipment. The chances of Mr. Pun's winning or losing were in no way related to the chances of one or more previous victims. If they had been, then it is possible that Mr. MacMahon would have been in a position to speak from his ten years' experience of this type of case of the chances involved and we would not have been able to say that there was no evidence upon which the judge could be satisfied as to his qualifications. As it is, we think this witness ought not to have been called as an expert. 10. It is then said that the other evidence which this witness gave ought to have been excluded. Two reasons are given: (i) that it was irrelevant and (ii) that even if it was relevant its prejudicial effect far outweighed its probative value. It is obvious that if the evidence was irrelevant it had no probative value and there can be little doubt that it was, to some extent at least, prejudicial. This other evidence, if relevant, could have been given by any witness with direct knowledge of a number of tien sin kuk. It is not, we think, suggested that it was in itself relevant that other persons had previously committed similar offences, any more than it would be relevant on a trial for robbery that other persons had committed robberies or had committed robberies in a particular way. As we understand it, what is said to have been material was that it was possible to swindle in the manner alleged in the present case and that there was an established pattern of such swindles which had acquired a name of its own. In our view that went beyond what was permissible. It was for the judge to decide whether the Appellants had committed the swindle alleged and to do that he had to decide whether such a swindle was possible. We think he had to decide that in the light of his own knowledge and experience of human nature. The evidence of Mr. MacMahon was bound to indicate that there had been similar cases and it tended to suggest that because others had in similar circumstances had a fraudulent intent the Appellants must have had such an intent. That is not to say that any reference to a tien sin kuk in the course of a trial is objectionable but only that such a reference would have to be made with the greatest circumspection so as to avoid any hint that there had been similar cases in the past. So long as the term "tien sin kuk" was applied to the facts of the present case alone, no harm could be done. Counsel could fairly have said that he intended to prove a tien sin kuk and have translated the words into English. He could then have explained why the swindle could be described as "heavenly" and have pointed out the parts all the participants were alleged to have played, but he would have had to take care not to infer that this particular type of swindle had occurred before. By calling evidence of the kind adduced here the implication that there had been previous cases was inevitable. It does not assist the Crown that in CHAN Ngan-lun v. Reg. Crim. App. No. 488 of 1973 this Court made no adverse comment on the admission of similar evidence, because no point was there taken as to its admissibility. 11. We are, therefore, of opinion that none of Mr. MacMahon's evidence ought to have been admitted and have to decide whether it can be said that its admission has not resulted in any miscarriage of justice. As to the "expert" evidence we might have been sure that that led to no substantial miscarriage of justice but for one question which was put to Mr. MacMahon, namely
To which his reply was:
The question was a compendious one but we are unable to read the answer otherwise than as purporting to answer the very issue which was the substantial issue to be decided by the Court. The question should not have been allowed oven though it was put in cross-examination. So far as the first Appellant is concerned he could hardly complain, since it was his advocate who put the question, were it not for the fact that the witness should not have been called as an expert in the first instance. Whilst it can be argued that a professional judge would be unlikely to allow himself to be influenced by such an answer, we are still faced with the admission of the "non expert" evidence and we have reluctantly come to the conclusion that the matter is too serious for us to be able to say with certainty that the judge, having said how much he relied upon it, would inevitably have returned the same verdict in the absence of Mr. MacMahon's evidence. 12. For these reasons the convictions are quashed. 8th September 1975. Representation: |