R. v. Wong Wai To and Others

CACC000371/1996

IN THE COURT OF APPEAL

1996, No. 371
(Criminal)

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Coram : Mortimer, J.A., Liu and Mayo, JJ.A. in Court

Date of Hearing : 12 June 1997

Handing down reasons for judgment: 13 August 1997

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On the 12 June 1996 we dismissed these applications for leave to appeal against conviction. We now give our reasons.

The facts

2. Wong Wai-to (D1), Wan Man-fai (D2) and Lee Yuk-tin (D3) were serving police officers. Yip wing-chung (D4) was unemployed.

3. On 24 June 1996 they were each convicted by Her Honour Judge H.C. Wong of offences relating to the running of 2 gambling dens.

4. The first was a flat in San Po Kong (The 1st den) which was run between 1 November 94 and 30 April 1995. The second was a flat in Lung Hong Road, Kowloon (the 2nd den) which was operated between 1 June 1995 and 30 September 1995.

5. Lai Po-keung (PW2) was a police constable. Late in 1994 he persuaded (D4) to assist him by renting a flat (the 1st den). D4 with another man Au Tsz-loong (PW3) assisted in the running of the 1st den for $500 each per day out of the takings. In November 1994 D2 and D3 were invited by PW2 to join in operating the 1st den.

6. D2's role was to introduce customers (other police officers) to the den and to provide warnings to those operating it of any proposed police raids.

7. D3 agreed to assist in the running of the 1st den. The profits of which were to be shared between PW2 and D2. Between 5 December 1994 and 1 April l1995 D2 provided advance information of police raids on 4 occasions and he received money on each of those occasions which amounted to a total of $4,000.00.

8. The 1st den was closed in April 1995. For those activities D2, D3 and D4 were convicted of Count 7. Conspiring to operate a gambling establishment. D2 was convicted of 4 offenses of accepting advantages from PW1 contrary to Section 4(2)(b) of the Prevention of Bribery Ordinance Cap. 201.

9. Turning to the 2nd den. - In June 1995 PW2 and D3 contributed $33,000.00 to establish it. D4 was asked by PW2 to rent the premises. D4 and PW3 operated the establishment and received the same remuneration - $500.00 per day out of the takings - for running it.

10. PW2 asked D1 to join operating the den although he was not asked to pay toward it. He agreed, however, to provide advance warning of police raids and introduce now customers who was chiefly police officers. He introduced new customers on 2 occasions 3 July 1995 and 10 July 1995.

11. PW2, D1 and D3 shared profits which amounted about $87,500.00.

12. These activities came to an end on 30 September 1995 when there was a police raid following ICAC surveillance on the premises.

13. For their activities relating to the 2nd den D1, D3 and D4 were convicted of Count 2 - a conspiracy to operate a gambling establishment. D1 was also convicted of a conspiracy to accept advantages.

14. For the above offenses. D1 and D2 were each sentenced to a total of 2 years imprisonment. D3 was sentenced to 8 months imprisonment and D4 was also sentenced to 8 months imprisonment but his sentence was suspended.

The trial

15. The case depended upon the evidence of two accomplices. The first was PW2 - the person who planned and organized those establishments and recruited the others to assist. The second was PW3 who assisted in the running of both with D4. In her reasons for verdict the judge recognized that the case depended upon PW2 and PW3 and that they were accomplices.

16. The judge reviewed the evidence with some care. She set out the evidence of these two witnesses and the exhibits seized at the time of the raid on the 2nd den which indicated that the premises were run as a gambling den. P4 was found. It was obviously a rough record of the accounts of the gambling establishment together with names and telephone numbers of customers. It was found with D3's passport and PW2 said that it was kept by D3. The premises were rented by D4 and the keys were found on him.

The Application

17. Mr. Adams for the applicants takes two main points:

1. That the judge erred in law in accepting PW2's evidence as corroboration of PW3's evidence when they were both accomplices and could not corroborate each other in law;

2. That the judge failed to consider the case against each defendant separately.

The first point - accomplices and corroboration

18. Mr. Adams for the applicants summits that the judge recognised the danger of accepting the evidence of the two accomplices - PW2 and PW3 - and looked for evidence capable of corroborating their evidence in the legal sense. It is suggested that she directed herself that these accomplices were capable of corroborating each other and further that exhibit P4 was capable of corroborating the evidence of both of them.

19. The passages relied upon in the reasons for verdict are first at 23A where the judge said:

"PW3's evidence corroborated with the evidence of PW2"

Secondly, at 32G-O:

"I have reminded myself that these two witnesses may have a purpose to serve in giving evidence for the prosecution. Section 60 of the Criminal Procedure Ordinance has abrogated the requirement of a judge to warn a jury or himself of the dangers of convicting on the uncorroborative evidence of an accomplice. I have nevertheless warned myself of the danger of convicting solely on the evidence of accomplices in the present case. ... In the present case, I find exhibit P4 corroborated the evidence of PW2 and PW3."

It is submitted that the judge erred as one accomplice cannot corroborate another and exhibit P4 at most could corroborate the evidence against D3 in respect of the 2nd den.

20. This is another appeal in which counsel suggests that the judge has given herself the warning on corroboration which was obligatory before the passing of Section 60 of the Criminal Procedure Ordinance. This section provides:

(1) 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.

(2) Any requirement that it is applicable at a trial by a judge or magistrate and corresponds to the requirement mentioned in subsection (1) is hereby abrogated.

21. This necessary reform reversed the technical, judge made, law on obligatory warnings to be given on corroboration of accomplice witnesses. The purpose is to free fact finders from this artificial technicality and allow the facts to be determined according to law, and fairly by giving proper weight to the evidence. The change in the law has not made accomplices more reliable than they were before but it is now for the judge in his discretion to determine the caution to be exercised and whether any warning to himself or a jury is required, and if so, in what terms. 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.

22. When considering a similar provision to Section 80 above Taylor LCJ said in R. v. Makanjuola [1995] 2 Cr. App. R. 469

"The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving "discretionary" warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the Act. 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."

We respectfully adopt the guidance given in the above passage.

23. With this in mind we turn to the first question - whether the judge directed herself in the terms of the old obligatory warning. Secondly, whether she relied upon 'corroboration' in the legal sense.

24. Although 'corroboration' is an ordinary English word when used by lawyers it has become a term of art. But for the judge's use of this word it is doubtful whether any application for leave would have been advanced on this ground. It is necessary to consider the judge's use of the word in its context and to determine whether she was using it in the technical sense.

25. In the first passage - "PW3's evidence corroborated with the evidence of PW2" - it seems to us that the judge was not there directing herself that one accomplice could corroborate the other. At most she was indicating - correctly - that one witness was consistent with, or supported, the other.

26. As to the passage at 32G-O she indicated a full awareness of the effect of Section 60 and gave herself a warning tailored to this case. "I have nevertheless warned myself of the danger of convicting solely on the evidence of accomplices in the present case." She found that exhibit P4 "corroborated the evidence of PW2 and PW3". But again it is clear to this court that the judge was not using technical language. This exhibit did provide general support for the evidence of those two witnesses about the running of the 2nd den as a gambling establishment. The judge was adverting to this support.

27. The judge considered all the evidence in the case with care. She gave herself such warnings as she determined were necessary on the accomplice evidence and having done so she decided "on the basis of all the evidence before me, I am satisfied the evidence of PW2 and PW3 to be both credible and truthful."

28. There is no basis for the criticism advanced.

The 2nd point. - Did the judge consider the case of each defendant separately?

29. In her reasons for verdict the judge considered the whole of the evidence and then turned to each defendant separately. Although she did not repeat the evidence relevant to each defendant she adequately demonstrated her consideration of each case separately.

Conclusion

30. It is not necessary to deal further or individually with the other grounds raised. None of them was remotely arguable.

31. For these reasons this application was refused.

Representation:

Mr. Nicholas E.W. Adams assigned by D.L.A. for 1st - 4th Applicants (D1 - D4)

Mr. Robert S.K. Lee (SCC) (Crown Prosecutor) for Crown/Respondent