The Queen v. Liu Tsui Lan

HCMA000113/1991

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 113 OF 1991

___________

BETWEEN

______________

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 11 April 1991

Date of Delivery of Judgment: 30 May 1991

___________

JUDGMENT

___________

1. The Appellant was found guilty after trial in the Magistrates' Court on a charge of Aiding and Abetting a Breach of Condition of Stay, contrary to section 41 of the Immigration Ordinance, Cap.115. The Particulars of offence read as follows:-

"On divers day between a day in January 1989 and a day' in August 1989 you did aid and abet Gemma V. Magno to breach a condition of stay imposed on her by an immigration officer, in that she was only permitted to work for Mr. Yuen Ching as a domestic helper but you did aid and abet the said Gemma V. Magno to work for Ms. Mak Po-lin and Ms. Leung Sau-lan Connie without permission."

2. The prosecution case was that the Appellant was the manageress of an employment agency business known as Technic Employment Service Centre. In the course of that business, the Agency recruited domestic helpers from the Philippines. The Agency had its principal office in Central and branch offices in Kowloon, New Territories and Vancouver. Gemma Magno (PW1) said that in April 1988 after applying to an agency in the Philippines, she was interviewee by the Appellant. In August, 1988 she was asked to return to the Philippine agency. She did and signed a contract of employment with Mr. Yuen Ching (PW5) . She arrived here on 29th December, 1988. The admitted facts are that on arrival she was allowed to remain here until 29th June, 1989 on condition that she worked as a domestic helper for PW5 during that period.  She did not work for PW5 during that period but worked first for Mak Po-lin (PW3) for three months and then for Connie Leung Sau-lan (PW4) for the remainder of the period.

3. By breaching her condition of stay PW1 committed an offence under s.41 of the Immigration Ordinance. Those who may have aided and abetted her in the Commission of that offence were, apart from the Appellant, PWs 3. 4 & 5. Each of those witnesses was given an immunity from prosecution before giving evidence on behalf of the Prosecution and the learned magistrate found each of them to be particeps criminis in respect of the offence charged. The other witness was PW1's sister, Gloria Mandillo (PW2). There was no suggestion that she aided and abetted the offence charged but, during cross-examination, she revealed that she was worried during the investigation of PW1's case that some transgression of her own might be exposed. This led the learned magistrate to regard her as a suspect witness to the extent that he treated her as if she were within the "accomplice" category of witness. As a result, all the oral evidence was within the "accomplice" category.

4. The Appellant's major complaint is about the way in which the learned magistrate dealt with that oral evidence. In his Statement of Findings he said this: -

"I therefore treated all the five Prosecution witnesses as accomplices when weighing up their evidence and assessing its weight and reliability

...................

PWl and PW2 were examined and cross-examined extensively. They both admitted that when they were initially being interviewed by the Immigration Department, they did not provide details of what occurred during PW1's first four days in Hong Kong. Apart from this however - and I accepted their explanation for their reticence  I found their evidence to be detailed and corroborative and, so far as could be ascertained, consistent with what they had said in their statements. Further I .found found both to be impressive witnesses - honest, open and straightforward although not of very high intelligence.

As to the two employers PW3 was initially evasive but after a warning, I found her evidence to be credible and reliable. As to PW4, she came across as a robust and open witness - and I believed her. PW5 was a witness of no relevance and little value except in so far as he said he did intend to employ PW1 originally but never aid (nor did he ever see her) ...........

In all,  it was a detailed and comprehensive collection of corroborating evidence from four witnesses (all of whom were cross-examined skilfully and at length) plus a number of exhibits. Despite warming myself of the dangers,: I was satisfied there was no reasonable possibility that the evidence of the witnesses had been concocted individually or in concert."

5. Miss Toh for the Appellant, submitted that the learned magistrate's misdirections regarding corroboration were such that the resulting conviction was unsatisfactory.

6. Mr. Bailey, for the Respondent, conceded that there was no corroboration at all in the strict, or Baskerville sense.  He also conceded that there was "a real difficulty" arising from the learned magistrate's reference on two occasions to "corroborative evidence" when there was none. He sought, however, to support the conviction by this submission: the learned magistrate had shown (a) that he was fully aware of the danger in accepting unreservedly evidence from "accomplice" witnesses, and (b) that, notwithstanding that danger, he was still able to accept the evidence of PW1; therefore the learned magistrate had correctly applied the law even though he might have used the term "corroboration" and its derivatives in a non Baskerville sense. The learned magistrate recognised the appropiate danger and applied the law as it is expressed, according to Mr. Bailey's submission, in the following passage from the speech of Lord Hailsham, L.C. in D.P.P. v. Kilbourne (57 Cr. App. R 381; 404-5): -

"Obviously where two or more fallow accomplices give evidence against an accused their evidence is equally tainted. The reason why accomplice evidence requires corroboration is the danger of a concocted story designed to throw the blame on the accused. The danger is not less, but may De greater, in the case of fellow accomplices. Their joint evidence is not "independent in the sense required by Baskerville.... and a jury must be warned not to treat it as corroboration

........

On the other hand, where the so called accomplices are of the third class listed by Lord Simonds in Davies v. D.P.P. (38 Cr. App. R 11 at P 33).... the danger is or may be nugatory. The real need is to warn the jury of the danger of a conspiracy to commit perjury in these cases, and, where there is the possibility of this, it is right to direct them not to treat as corroborative of one witness the evidence of another witness who may be part of the same conspiracy, but who cannot be an accomplice because if the evidence is untrue there has been no crime committed. This prompts me to point out that although the warning must be given in every appropriate case, the dangers to be guarded against may be quite different. Thus the evidence of  accomplices is dangerous because it maybe perjured......

I do not, therefore, believe that there is a general rule that no persons who come within the definition of accomplice may be mutually corroborative. It applies to those in the first and second of Lord Simond's categories and to many other case where witnesses are not or may not be accomplices. It does not necessarily apply to all witnesses in the same case who may deserve to be categorised as 'accomplice'. In particular it does hot necessarily apply to accomplices of Lord Simond's third class, where they give independent evidence of separate incidents, and here the circumstances are such as to exclude the danger of a jointly fabricated story."

7. The last sentence of the quoted part of the learned magistrate's Statement of Findings shows that he was alive, as Mr. Bailey submitted, to the danger of a conspiracy to commit perjury. But, the juxtaposition of that reminder with the finding that there "was a detailed and comprehensive collection of corroborating evidence from four witnesses", leads almost inexorably to the conclusion that the learned magistrate put all four witnesses in Lord Simond's this class. That class, of course, embraces those who are not criminally responsible with the accused in respect of the offence charged but are criminally responsible in respect of a similar offence the proof of which is offered by way of similar fact evidence relevant to proof of the offence charged. As Lord Hailsham pointed out in the passage set out above, "accomplices" in that category can corroborate one another if the tribunal of fact concludes that they are hot telling & ,jointly fabricated story.  In the same passage, however, he maces it clear that, in his view, the rule debarring mutual corroboration among accomplices does apply in respect of those who share criminal responsibility in respect of the offence alleged in the charge being tried.

8. The last two sentences of the learned magistrate's Statement of Findings set out above indicate that he was applying the test which, according to Lord Hailsham, is applicable to accomplices in Lord Simond's third class But PWs 3, 4 & 5 did not belong to that class. They were accomplices because they were found by the learned magistrate to be criminally responsible in respect of the offence charged. They belonged to that class of accomplice which, according to Lord Hailsham could not corroborate each other because their "joint evidence was not 'independent' in the sense required by Baskerville" The learned magistrate should, therefore, "have warned [himself] not to treat their evidence as corroboration".

9. PW2 did hot belong to that class. Having found that she was not a party to a conspiracy to give false evidence against the Appellant the learned magistrate could have used her evidence as corroborative of PW1, if it did corroborate her. The learned magistrate s findings show that he did regard her evidence as corroborative of the evidence of PW1. But the Respondent concedes that her evidence did not corroborate PW1.

10. I am, therefore, persuaded that Miss Toh's submission has substantial merit. The learned magistrate convicted the Appellant on the basis that there was a need for corroborative evidence to support a conviction and found (a) that witnesses who could not, in law corroborate each other were capable of corroborating each other; and (b) that there was corroborative evidence in circumstances where counsel for the Crown on this appeal concedes that there was none.

11. A conviction under those circumstances is unsatisfactory. The appeal must, therefore, be allowed and the conviction quashed.

Representation:

Mr. S.R. Bailey S.C.C. for Crown

Ms. E. Toh instructed by M/S C L. Chow & Lam for Appellant, Liu Tsui Lan