The Queen v. Yeung Kwok-kuen and Another

CACC000078/1985

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Kempster, JJ.A.

Date of Hearing: 13th & 14th August 1985

Date of Judgment: 14th August 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application by two convicted men for leave to appeal against convictions. There were originally four defendants before the court. A nolle prosequi was entered in respect of the 4th Defendant and he in course of time became the first Prosecution witness.

2. There were two charges in the District Court. The first was one of soliciting an advantage, a charge laid against the 1st and 2nd Defendants - who are these Applicants. The second charge, which was laid against all the accused, was one of conspiracy to attempt to pervert the course of public justice. The 1st and 2nd Defendants were convicted on both charges and the 2nd Defendant on the 2nd charge.

3. The Crown's case was this, that the second Prosecution witness was alleged to have stolen a necklace from the 3rd Defendant. The Defence says that that was a genuine charge: the Prosecution witnesses say that it was a frame up. Be that as it may, the Crown then alleges that the 1st, 2nd and 3rd Defendants sought to obtain money from the second Prosecution witness in consideration of the 3rd Defendant's not giving evidence against the second Prosecution witness on the robbery charge. In pursuance of that conspiracy the 1st and 2nd Defendants were said to have demanded a sum of $50,000.00 for not doing their duty to secure the attendance of the 3rd Defendant to give evidence. There was evidence that the money was to be divided as to $20,000.00 to the 1st Defendant, $5,000.00 to each of the 2nd and 3rd Defendants and the balance to the officer or officers in charge of the case.

4. The Defence alleged that the allegation of robbery, as I say, was a frame up. There had been a dispute between the second Prosecution witness and the 2nd Defendant over a girl, and the 2nd Defendant I said to have agreed to pay compensation. It was then said that the 2nd Defendant handed over the necklace which was the subject matter of the robbery charge as security for the payment of that compensation. According to the Defendants it was the Prosecution witness who sought to bribe the 1st and 2nd Defendants to ensure that the 3rd Defendant did not give evidence against the second Prosecution witness. So far there was a comparatively simple issue of fact, but there was a complication in the case. The 4th Defendant, whom I shall refer to henceforth as the first Prosecution witness, was a police informer. The second Prosecution witness and the 3rd Defendant were members of a gang of which the third Prosecution witness was the leader. The police were led to believe that the gang possessed a gun and it was decided that the 1st and 2nd Defendants, who were detective police constables, should infiltrate the gang with a view to finding the gun. The 1st Defendant was, of course, known to at least one or more of the members of the gang to be a policeman. To ensure that firm control should be kept by the police on the 1st and 2nd Defendants and on the operation generally, an Occurrence Book was started. In that book the 1st Defendant was instructed to record details of everything that he did' in connection with this operation, including details of any conversations which he had. He was further instructed that no other record was to be kept - in particular in his police notebook. It was the 1st Defendant's failure to keep this book properly which was a substantial cause of the suspicion which originally fell upon him.

5. On the appeal there have been three main points taken. First it was argued that there was no evidence on which a reasonable jury (in this case a reasonable judge sitting alone) could find the Appellants guilty. If that failed, it was submitted that the verdicts were unsafe and unsatisfactory, and thirdly, as to the second charge of conspiracy, it was submitted that there was no completed agreement on which could constitute a conspiracy.

6. Dealing with those grounds in order, we are satisfied that there was evidence upon which a judge could reasonably come to the verdicts that this judge did.

7. The main argument addressed to us has in fact been that the verdicts were unsafe and unsatisfactory. Counsel addressed us on the law and we think that the law is sufficiently clear and is as stated in Cooper 1969 1 Q.B. 267 at p.271F-G:

".. in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds Which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

That decision was approved by the House of Lords in Stafford v Director of Public Prosecutions 1974 A.C. 878. At p.891 Viscount Dilhorne compared the former legislation under the Criminal Appeal Act 1907 with the provisions of the Criminal Appeal Act 1968. Those provisions are similar to the provisions which apply in Hong Kong. He observed:

"The new Act gave a wide power to the Court of Appeal and that it would be wrong to place any fetter or restriction on its exercise. The Act does not require the court, in making up its mind whether or not a verdict is unsafe or unsatisfactory, to apply any particular test. The proper approach to the question they have to decide may vary from case to case and it should be left to the court and the Act leaves it to the court, to decide what approach to make. It would, in my opinion, be wrong to lay down that in a particular type of case a particular approach must be followed. What is the correct approach in a case is not, in my opinion, a question of law and, with respect, I do not think the question certified in this case involved a question of law."

8. Mr. Mullick on behalf of the Applicants submitted that in a case where it was suggested that the evidence was unsatisfactory, so that the verdicts were unsafe and unsatisfactory, it was as much for the Crown to sustain as for the appellant to seek to disturb the conviction, and he cited a passage from LAM Ting-chung v Reg. 1970 H.K.L.R. 105 at p.133. We are satisfied that there is no burden on the Crown in these cases. It is for the defence to establish what the legislature has said must be established, namely that the verdict is unsafe and unsatisfactory.

9. In considering the evidence this court must give due weight to the assessment of the evidence and of the witnesses by the judge. This is clearly accepted by the authorities, and we think that this particular case is pre-eminently one where the view of the judge was of the greatest importance. He saw and heard the witnesses and he was in a far better position than we are to judge whether one side or the other was to be believed. The judge here was satisfied that the Prosecution witnesses were telling the truth, and the Appellants, in seeking to upset the convictions on this ground, faced a very heavy burden in satisfying us, who have not seen the witnesses, that the judge came to a wrong conclusion. The submission is that the verdicts were unsafe and unsatisfactory by reason of the nature of the Prosecution evidence.

10. The judge expressly refrained from deciding whether the three main Prosecution witnesses were accomplices. He Said that they clearly had interests of their own too serve and that corroboration should be sought. Mr. Mullick has submitted that that direction shows that the judge was unwilling to believe the witnesses unless they were corroborated. That cannot be right. The witnesses had to be capable of belief before the judge looked for corroboration. He then had to look for corroboration and, whether it was there or not, he had in the end to decide whether or not he did believe the witnesses. In this case there clearly was no corroboration, and the judge never suggested that there was. It was hinted at one time that a particular phrase in the judgment did suggest that he judge was relying upon the three Prosecution witnesses as corroborating each other, but we are satisfied that that is not the correct interpretation of what the judge said. In the result the judge was fully satisfied that the evidence for the Prosecution was true.

11. Mr. Mullick then went on to raise six matters which, he said, we should consider in our assessment of the witnesses and of the evidence. He emphasized the point, already made, that the witnesses had an interest of their own to serve. Second, he said that the three Prosecution witnesses had ill-will or resentment against the Appellants. There is no direct evidence of that. It may be true or it may not be true. Third, he said there are inconsistencies, contradictions and even untruths in the evidence of the three Prosecution witnesses and, together with that, he joined the point that the first Prosecution witness had offered himself as a witness in order to prevent his own prosecution. Fourth, attention was drawn to various conversations which were recorded, including some telephone conversations, and it is said that the general tenor of them all was that the second and third Prosecution witnesses were pushing the Appellants to agree the 3rd Defendant should be asked not to give evidence and that a bribe should be paid as a reward. Fifth, it is emphasized, as I have said, that there was no corroboration; and, sixth, it is suggested that there was a possibility of collusion between the second and third Prosecution witnesses, and that the judge did not mention that possibility. There was no requirement that the judge should mention that possibility: it is a possibility which exists in every case, that witnesses may have colluded one with the other.

12. We were taken at length through much of the evidence including the records of the conversations. The judge was not prepared to attach much weight to the transcripts of the tape-recordings, several of which were of the poorest quality. Clearly the transcriber had the utmost difficulty in his job, not least because of the expletives which continually interrupted the sense of what was said. We have considered all the alleged inconsistencies and contradictions, as did the judge. In the result we need say no more than that we are not persuaded that the verdict is either unsafe or unsatisfactory.

Then, as to the conspiracy charge, there was the suggestion that there was no concluded agreement. The basis of that contention appears to be that the amount of money which was to be paid had not been agreed. There are two answers to that. First, we think that it is not sustainable on the evidence as it stands, and, secondly, we are satisfied that it was not necessary that there should be any agreement as to the amount of money. The charge was one of conspiracy to attempt to pervert the course of justice. As soon as there was an agreement to attempt to persuade the 3rd Defendant that he should not give evidence there was a criminal conspiracy, and it seems to us that clearly on the evidence there was such an agreement. Therefore that ground of appeal also fails.

It is pointed out to me that I did not say (as is of course the case) that the judge expressly warned himself of the danger of accepting the uncorroborated evidence of an accomplice, and no ground of appeal lies for failure in that respect.

14th August 1985

Representation:

J. Mullick for 1st and 2nd Applicants.

Whitehouse for Crown.