Chan Shu-ming and Another v. The Queen

CACC000499/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 499 OF 1981

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Coram: Garcia J. in Court

Date of Judgment: 10th July 1981

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JUDGMENT

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Garcia, J:-

1. I allowed the appellants' appeals against conviction and stated that I would give my reasons in writing which I now do.

2. The two appellants were charged in the Magistrate's Court at Fanling together with three others with two counts of aiding and abetting the remaining in the Colony of Illegal Immigrants contrary to Section 38(1)(b) of the Immigration Ordinance Cap. 115 and Section 89 of the Criminal Procedure Ordinance Cap. 221 of the Laws of Hong Kong. These two offences were later substituted by an amended charge of conspiracy to aid and abet, counsel or procure persons who had landed unlawfully in Hong Kong, to remain in Hong Kong without the authority of the Director of Immigration, in breach of Section 38(1)(b) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong, contrary to Common Law.

3. The particulars of the offence were that CHAN Shu-cheung, CHAN Shu-ming, i.e. the first appellant, WONG Choi-kam and LIU Shun-kwong, i.e. the second appellant, on divers days between the 20th day of July 1980 and the 3rd day of August 1980, in this Colony, conspire together and with other persons unknown to aid and abet, counsel or procure YEUNG Shui-chi, YUEN Yuk-chi, YUEN Oi-lan, LIU Chi-wo and TSANG Chun-hin and other persons unknown, being persons who had landed in Hong Kong unlawfully to remain in Hong Kong without the authority of the Director of Immigration.

4. The two appellants were convicted on the 31st March 1981 and each of them were sentenced to 2 years' imprisonment. The only evidence for the prosecution against these two appellants and another person who was also convicted, came from the witness YEUNG Shui-chi who himself admitted that he was an illegal immigrant. According to his evidence, he came to Hong Kong by swimming the Shum Chun River on the night of 18th July 1980, and upon arriving here met the two appellants that night by a fishpond in the New Territories. These two appellants eventually took him to a flat where he stayed with other illegal immigrants for a few days and whilst he was in that flat he was required to cook for other illegal immigrants who were there, and as a result he had been able to speak to the other illegal immigrants whilst he was in the flat. This witness, one of the persons mentioned in the particulars of the charge, describes how he was taken away from the flat by the first appellant on 27th July 1980 and then handed over to his uncle, Mr YIP Lung-for, who then handed that appellant money and clothes in exchange. His uncle does not substantiate Yeung's statement saying that he could not recognise the person who brought YEUNG Shui-chi to him. Other witnesses for the prosecution who admitted being illegal immigrants were either unable or unwilling to identify the persons who were engaged in the alleged conspiracy. The learned magistrate considered in his reasoned judgment that it was plain that the prosecution relied very heavily on the evidence of Mr YEUNG Shui-chi for the conviction of these two appellants and that of another person. It has been submitted on behalf of the appellants that whilst the magistrate was entitled to convict on the evidence of one witness if he believed that witness's evidence, nevertheless, since that witness YEUNG Shui-chi had been treated as an accomplice the magistrate ought to have warned himself (i) that such evidence required corroboration as a matter of practice and (ii) the danger of convicting on that uncorroborated evidence. Counsel referred me to the reasoned judgment and also to the magistrate's statement of findings and it appears from both these documents that the magistrate had not applied his mind to this principle before convicting the two appellants. Counsel for the respondent has asked me to consider that the following extracts from the statement of findings and the reasoned judgment do not indicate that the magistrate had brought his mind to bear upon the question of corroboration. The sentences to which reference have been made appear as follows:-

In the reasoned judgment he states as follows:-

In another page of the judgment he states as follows:-

Counsel for first appellant referred me to the case of TANG Chi-keung and Others v. The Queen, Criminal Appeal No. 471 of 1977 where it was held that with regard to accomplice evidence the trial judge ought to give a clear warning of the dangers of convicting without corroboration and explain the reason for the warning without detracting from the warning given. In the present case it cannot be said that the magistrate had warned himself of the dangers of convicting upon the uncorroborated evidence of the witness YEUNG Shui-chi. I have also been referred to the decision of the Full Court in Reg. v. CHAN Siu-wong (1970) H.K.L.R. page 61 where the headnote reads: "Criminal Law - Prevention of Corruption Ordinance 215 - Accomplice Evidence - No corroboration - Cap. 215 Section 9 - Where the judge sitting alone required to warn of the danger". This case has also been referred to in the judgment of Trainor, J. in CHEUNG Yeuk-man and The Queen, Criminal Appeal No. 981 of 1974. With regard to the submission made on behalf of the appellants the duty of magistrates in this respect is abundantly clear from the part of the judgment of that court of the Chief Justice Sir Ivo Rigby where it says that "In so far as Magistrates Courts are concerned, we are fully satisfied that it remains the duty of a Magistrate to make it apparent in his judgment or grounds of decision that he has warned himself of the danger of convicting upon the uncorroborated testimony of an accomplice ...... The evidence in this case (a trial in the District Court without a jury) upon this charge depended solely upon the uncorroborated testimony of the two partners who, as we have said, were undoubtedly accomplices in any corrupt payment allegedly made. The learned trial judge having failed to record that he gave himself, in any terms whatsoever, the warning which in our view was, and is essential in such cases, we are satisfied that the conviction on this count must be quashed". In the judgment reference is also made to CHIU Man-hong v. Public Prosecutor (1964) 1 W.L.R. 1279, a Privy Council case.

Whilst the learned magistrate did indicate that he was holding YEUNG Shui-chi an accomplice and that his evidence was that of an accomplice and that there were dangers because he was an illegal immigrant and therefore he was more prone to giving evidence favourable to the prosecution because of the advantage he might gain from doing so, nevertheless, the magistrate did not advert to the fact that such evidence requires corroboration or that if there were no corroboration it would have been dangerous to act solely on the evidence of that accomplice. I think construing the extracts which appear both in his reasoned judgment and in his statement of findings relating to the evidence of YEUNG Shui-chi, it cannot be said that he had directed his mind towards the question of corroboration of that particular evidence or that it was dangerous just to act on that evidence alone without corroboration. The evidence of P.W.7, i.e. the uncle of YEUNG Shui-chi, would appear also to be the evidence of an accomplice and therefore that evidence was not, under the circumstances, capable of corroborating the evidence of YEUNG Shui-chi. I think in the circumstances the cases which have been cited do apply to this case and accordingly the convictions must be quashed and the sentences set aside.

Representation:

J. G. Fenton (Kwan & Kwan) for 1st appellant

D. Mackenzie Ross (David K. W. Tsang & Co.) for 2nd appellant

Peter Conran, crown counsel, for crown/respondent