The Queen v. Wai Chi Nam and Others

1986, No. 384
(Criminal)

Headnote

Criminal Law - Evidence of Accomplice - Nature of Corroboration required - Material Irregularity and Proviso within meaning of Section 83(1) of the Criminal Procedure Ordinance (Cap. 221).

Applicants for leave to appeal against convictions for robbery, conspiracy to rob and conspiracy to kidnap a person for ransom complained that the trial judge's directions relating to accomplice evidence were erroneous in that they allowed the jury to accept as corroboration matters which connected them with a crime only if reference was made to the evidence of the accomplices and that no distinction had been drawn between corroboration in relation to counts in the indictment and corroboration in relation to the complicity of specific applicants in the crimes charged in those counts. Complaint was also made of the Crown's failure in the course of the trial to disclose to the defence documents material to the grant of conditional immunity to one of the accomplices.

Held (allowing all applications and the appeals in part):-

(1)     That although evidence must derive from a source independent of an accomplice in order to corroborate his testimony it may, nonetheless, implicate an accused in the crime charged by reference to that testimony.

(2)     That corroboration of the testimony of an accomplice in relation to one accused is not available as corroboration of his testimony in relation to another.

R. v. Baskerville [1916] 2 K.B. 658 followed.

(3)     That the Crown's failure to disclose documents relating to the grant of conditional immunity to one of the accomplices constituted a material irregularity in the course of the trial within the meaning of Section 83(1)(c) of the Criminal Procedure Ordinance.

(4)     That since no miscarriage of justice had actually occurred as a result of the material irregularity the appeals would nonetheless be dismissed, insofar as they depended on such irregularity, pursurant to the proviso to Section 83 (1).

IN THE COURT OF APPEAL

1986, No. 384
(Criminal)

BETWEEN

THE QUEEN

and

WAI Chi-nam (D1)

LUI Tat-hang (D2)

CHEUNG Hoi-kuen (D3)

CHEUNG Chi-fung (D5)

FUNG To-shan (D7)

_____________________

Coram: Hon. Kempster, Clough, JJ.A. & Penlington, J.

Dates of Hearing: 14th, 15th, 19^th & 20th May, 1987.

Date of Judgment: 16th June, 1987.

_____________________

JUDGMENT

_____________________

Kempster, J.A.

1. On 18th July 1986 on the verdict of the jury Wai Chi Nam, Lui Tat Hang and Cheung Hoi Kuen were convicted by Bewley, J. of robbery, conspiracy to rob and conspiracy to kidnap a person for ransom; counts 3, 4 and 6 of the indictment respectively. Fung To Shan was also convicted of robbery and conspiracy to rob and Cheung Chi Fung of the possession both of arms and of ammunition without licence; counts 8 and 9. All these convictions are now the subject of applications for leave to appeal although, having regard to the grounds relied upon in relation to the robbery, which involve questions of law alone, leave may not be necessary. The question is academic. By reason of the substance of the matters canvassed in argument I would have no hesitation in allowing all the applications in any event and in treating the hearing as the hearing of the substantive appeals.

2. It seems convenient first to consider the convictions of Cheung Chi Fung who was the occupier of the flat in Shing Wo Road, Happy Valley, to which on 23rd September 1985 others brought the firearms and ammunition subsequently found there after the premises had been stormed in a manner reminiscent of the capture of Delhi's Kashmir Gate during the Mutiny. As occupier he was presumed, pursuant to s.24(1)(b) of the Firearms and Ammunition Ordinance (Cap.238), to have had these items in his possession. That presumption did not apply to the others, jointly charged with him, who were acquitted either on submission or by the jury. None elected to give evidence or to call witnesses.

3. Certainly Cheung must have known about the revolver and ammunition found on a tray in the living-room of the flat and about the other weapons which, in a written statement, he admitted had been shown to him. In that statement he claimed to have told Wai Chi Nam "that it was forbidden to do it in that way" whereupon Wai told him "to be at ease and that he would assume the responsibility." To Cheung's advantage the trial judge did not tell the jury that this exculpatory material was intrinsically less likely to be true than that which inculpated him or remind them that he had not given evidence on oath to such effect. Meticulously following the rules designed for the protection of an accused in Cheung's predicament Bewley, J. said to the jury "You may well think that the statement works in (his) favour - to some extent." Indeed, no criticism can validly be made of the summing-up in relation to Cheung's convictions. While Mr. Plowman, who appeared for him, conceded as much he urged us, in the words of Lord Widgery, C.J. in R. v. Cooper[1] at p.271 to ask ourselves the. subjective question:

"Whether we are content to let the matter stand as it is or whether there is not some lurking doubt in our mind which makes us wonder whether an injustice has been done."

This invitation we accepted but I found no lurking doubt in my mind. In consequence I consider that it would constitute a usurpation of the functions of the jury to interfere and would dismiss Cheung Chi Fung's appeal against his convictions.

4. Turning to the appeals of Wai, Lui, Cheung Hoi Kuen and Fung. it is to be observed in passing that the robbery in question was no petty crime. Watches and jewellery to a value of some $10,000,000 were taken from the staff at the Kowloon premises of the Dickson Watch Company on 24th April 1984 at gunpoint. What was in issue was the identity of the robbers and in the forefront of the arguments advanced to us was the propriety of the trial judge's direction to the jury that certain financial transactions were capable of corroborating the evidence of two accomplice witnesses who had implicated these appellants in that crime. If those transactions were so capable the further question as to whether there was corroboration in respect of all the appellants or only of some arises. These matters are of critical importance. As the trial judge stated, specifically in relation to the count for conspiracy to rob and generally in relation to all the counts upon which the appellants were convicted: "Counts one to seven stand completely or fall on the evidence of the two accomplices."

5. The accomplices, Chan Fu-kui and Ho Va Pang, both self-confessed criminals of the most dangerous sort, had respectively been granted conditional immunities from prosecution by the Attorney General before they gave evidence. The trial judge pointed out to the jury the contradictions as between the evidence of the one as compared with that of the other and their obvious motivation to lie. He reminded them that Chan had repudiated his evidence implicating the appellants in the course of re-examination and that Ho had been in the dock with the appellants until, at a late stage in the trial, they had been discharged from returning verdicts in relation to him; following a successful application for the severance of the indictment. He also gave the jury due warning as to the dangers inherent in convicting on the uncorroborated evidence of such witnesses and, mistakenly, told them that they had no need to look for corroboration unless they thought one or other accomplice worthy of credit in the first place. In so doing Bewley, J. did not have the opportunity of reading the decision of the Privy Council in Attorney General of Hong Kong v. WONG Muk-ping subsequently reported in [19871 2 W.L.R. 1033, but his error redounded rather to the advantage than to the disadvantage of the appellants.

6. Twice in the course of his summing-up the trial judge correctly defined corroboration as "some independent evidence of some material fact which implicates the defendants and tends to show that they are guilty of the offences" and went on to indicate whether any such evidence was or was not available in relation to each of the nine counts in the indictment. The first of such counts with which we are concerned is that charging the robbery.

7. According to Chan he was present at a meeting with the appellants at which the robbery at the premises of the Dickson Watch Co. was planned and when Wai said there would be "half a million Hong Kong dollars in it" for each of them. A fortnight after the robbery, at the Lisboa Hotel Casino. Macau. Wai gave him HK$480,000; $300,000 in cash and S180,000 by cheque drawn on behalf of the Casino. In due course Ho told him that these moneys constituted his share of the proceeds of the crime.

8. Ho gave like evidence about the promise of reward for the robbery and said that in due course he had delivered the proceeds to Wai following which Wai had paid him $480.000 "in dribs and drabs" as his share.

9. It is common ground that on 6th June 1984 Wai withdrew HK$450.000 in cash from his account at the Po Sang Bank, put the money into a brown envelope and handed it to Lui. Later that afternoon Lui entered the Lockhart Road Branch of the Standard Chartered Bank and took from a brown envolope HK$480,000 which he deposited for the credit of his account there.

10. Having regard to the relevant evidence of the accomplices it was open to the jury to infer that Wai had added $450,000 to $30,000 already in a brown envelope and handed it to Lui as his share of the proceeds of the robbery.

Of these transactions the trial judge said - "Those matters may corroborate the evidence of Chan and Ho that they each received HK$480.000 from the first defendant as their share of the robbery proceeds though in themselves the transactions prove nothing."

It was submitted that he thereby misdirected the jury.

11. Any consideration of the rule relating to corroboration of the evidence of accomplices, the abolition of which. it may be recalled. was recommended by the Criminal Law Revision Committee in England in 1972 (11th Report Cmnd. 4991) starts and finishes with the considered judgment of a Court of Criminal Appeal comprising Scrutton, Avory, Rowlat and Atkio JJ. given by Lord Reading C.J. in R. v. Baskerville[2] at pp.664-667:

"As the rule of practice at common law was founded originally upon the exercise of the discretion of the judge at the trial, and, moreover, as it is anomalous in its nature, inasmuch as it requires confirmation of the testimony of a competent witness, it is not surprising that this rule should have led to differences of opinion as to the nature and extent of the corroboration required, although there are propositions of law applicable to corroboration which are beyond controversy. For example, 'confirmation does not mean that there should be independent evidence at that which the accomplice relates, or his testimony would be unnecessary': Reg. v. Mullins[3] per Maule J. Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, It would be merely confirmatory of other and independent testimony. What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. - The evidence of an accomplice must be confirmed not only as to the circumstances of the crime, but also as to the identity of the prisoner. - It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime. - We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, hut also that the prisoner committed it. - The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime."

12. To the best of my understanding, derived from this and other authorities cited to us, in order to constitute corroboration evidence should derive from a source independent of the accomplice and confirm some part of his story which implicates the accused in the crime charged. The relevant evidence here meets those requirements and renders it probable that a significant part of the story of the two accomplices in relation to the complicity in the robbery of Wai and Lui is true. I cannot, for my part, accept the submission, albeit at first blush supported by the judgment of Isaacs J. in Ridley v. Whipp[4] at pp.391-392, that in order to be available as corroboration the evidence implicating the accused must not only derive from a source independent of the accomplice but tend to connect him with the crime without reference to the accomplice's testimony. Such a contention cannot readi1y be reconciled with the passage cited by Isaacs J. from his earlier dissenting judgment in Eather v. The King[5] "the child's evidence must be looked at to see whether the other evidence is material" and is at the other end of the spectrum from the unsuccessful submission made in R. v. Beck[6] at p.470 that evidence is only capable of amounting to corroboration if and in so far as it directly corroborates a piece of evidence given by the accomplice.

13. It follows, in my view, that there was no misdirection in relation to the corroboration of the evidence of the accomplices as regards Wai and Lui in the context of the robbery. Other considerations obtain in relation to Cheung Hoi Kuen and Fung.

14. Since it is conceded that the evidence of the accomplices in relation to the complicity of these latter appellants in the robbery is not corroborated a further passage from the judgment of Lord Reading C.J. in R. v. Baskerville at p.669, quoted with approval by Lord Lane C.J. in R. v. Donat[7] at p.l78, falls for consideration:

"The question was discussed on the hearing of this appeal whether the evidence of an accomplice against two prisoners, corroborated as to one prisoner's participation in the crime, but not as to the other, can be regarded as corroboration with regard to both prisoners. We think the law is correctly stated by Alderson B. in Reg. v. Jenkins[8]. The learned Baron said: 'Where there is one witness of bad character giving evidence against both prisoners, a confirmation of his testimony with regard to one, is no confirmation of his testimony as to the other. If, therefore, you find there is a corroboration applicable to one prisoner, take it as against him; but unless it exists with regard to both, it seems to me it would be unjust to give it a general effect.'"

If then the trial judge directed the jury that the material available to corroborate the accomplice evidence as against Wai and Lui in relation to the robbery was also available as against Cheung Hoi Kuen and Fung their convictions on count 3 would be unsafe and unsatisfactory.

15. What he said in this regard was:

"On some of the counts there is no evidence capable of being corroboration. - Having considered all the evidence on each count, you will decide which counts have been proved and which have not, bearing in mind my warning that it is dangerous to convict on the uncorroborated evidence of an accomplice. - On the first two counts I direct you that there is no corroboration. The 1st, 2nd, 3rd and 7th defendants are all implicated by both accomplices."

And after telling the jury what could constitute corroboration on the relevant count:

"The 1st, 2nd, 3rd and 7th defendants were all implicated by both accomplice s on t hat count."

The defendants in question were Wai, Lui, Cheung Hoi Kuen and Fung To Shan.

16. As his summing up continued and also in response to questions from the jury the judge dealt with each count in like manner pointing out whether or not the evidence of the accomplices was corroborated. Unhappily he never distinguished between corroboration in relation to the count and corroboration in relation to a particular defendant charged on that count. On the counts for robbery, conspiracy to rob and conspiracy to kidnap a person for ransom, where it was indicated that corroboration of the evidence of one or more of the accomplices was available, the jury convicted each defendant charged. On the remaining counts, where the trial judge directed them that no corroboration was available, they acquitted each such defendant.

17. For my part I am satisfied that the jury understood the judge to have directed them that in order safely to convict they had to look for corroboration of the accomplice evidence in relation only to each of the several counts in the indictment and not in relation to the involvement of the individual defendants implicated. On the robbery count I therefore find the convictions of Cheung Hoi Kuen and Fung To Shan unsafe and unsatisfactory as the accomplice evidence implicating them was not corroborated.

18. By the same token I find the conviction of Liu for conspiracy to kidnap a person for ransom unsafe and unsatisfactory. The trial judge did not mention the corroboration available as against Fung To Shan on Count 4, conspiracy to rob, but Mr. McNamara, who appears for the Crown, has satisfied me that ample corroborative evidence was In fact available.

19. There is no room for the application of the proviso to section 83(1) of the Criminal Procedure Ordinance in the circumstances.

20. Before parting with “corroboration” I would adopt the advice given by the Court in R. v. Beck⁽⁶⁾ at p.470 that in such cases as the present counsel for the prosecution and for the defence should be offered an opportunity of making submissions as to the availability of corroborative material prior to final speeches and in the absence of the jury.

21. On the 3rd and 4th days of the hearing, as had earlier been foreshadowed, applications were made on behalf of all appellants save Cheung Chi Fung for an order for the production of certain documents pursuant to Section 83V(l)(a) of the Criminal Procedure Ordinance. The documents in question were copies of three statements, together with translations, made by one of the accomplices, Ho Va Pan, to the police and Crown counsel relevant to the immunity granted to him by the Attorney General. The applications were supported by affidavits to which alone they are relevant.

22. “The defence is entitiled to know everything about (an accomplice) the terms of the immunity and any matters surrounding it which could affect the credibility of his evidence" per Silke J.A. in R. v. Tsui Lai Ying & Others[9] Having regard to this authority and to the guidelines issued by the Attorney General in England (Practice Note [1982] 1 All E.R. 734) it was common ground that these documents should have been disclosed to the defence at an early stage in the trial. I would allow the applications, receive the documents, and permit these appellants to rely on additional grounds of appeal.

23. It is submitted that the statements in question contradict Ho's oral testimony and thus were germane to his credibility in that, had they been available to the defence at trial, his already suspect general credibility might further have been impugned. Baksh v. R.[10]

24. What were available to the defence in the material regard at trial were copies of typewritten letters written to Ho by the Director of Public Prosecution respectively dated 17th and 23rd June 1986. The first offered him undertakings by the Crown to bring to the attention of the sentencing court authorities showing that a significant discount should be afforded to a prisoner who pleads guilty and assists the prosecution, to secure his physical safety, not to prosecute him for other offences disclosed in his statement to the police, albeit some had already been included in an indictment, and, finally, to assist in the clarification of his own and his family's immigration status. A line ran through a provision requiring Ho to plead guilty to the robbery and "Deleted 20/6/86" had been added in longhand together with the signatures of Chief Inspector Taylor and Mr. Wong, Ho's counsel.

25. The second letter, which referred to statements which had been disclosed, confirmed what had been agreed in the course of negotiations to which Ho and his counsel had obviously been party on 20th June 1986; the date of the first of the undisclosed statements. The contents of that statement would, I accept, have afforded additional ammunition to defending counsel in relation to Ho's statement under cross-examination that he had not personally refused to plead guilty to the charge of robbery at the premises of the Dickson Watch Company.

26. The second statement, dated 24th June 1986, refers to the letter of the 23rd. The last two paragraphs read:

“The Senior Crown Counsel Harry Macleod has explained to me the contents of the Immunity Order in great detail. Now I turn down the request of Attorney General and refuse to become a prosecution witness unless the court will pass sentence upon my offences in the first place, so that I shall make deliberation after knowing what punishment has been awarded to me. It is because the Legal Department cannot guarantee the term of my imprisonment.

Now I further put forward that if (I) accept the conditions set forth in the Immunity Order by the Legal Department, the term of imprisonment I shall get will not exceed 9 years. In case of the term of prisonment exceeds 9 years, and I am further required to give evidence in a court of law, I shall refuse to give evidence."

However, in the third statement, made on the following day, Ho said:

"I understand that I could not be guaranteed of the length of imprisonment because it is absolutely out of the control of Attorney General - upon my careful consideration, I decide to accept the conditions of amnesty offered to me by the Legal Department to become prosecution witness."

Accordingly, it is apparent that the last two statements would have informed defending counsel that it was only as a result of further negotiations that Ho accepted the terms for immunity offered in the letter of 23rd June and also that during their course he had been concerned about the length of the sentence which he would receive.

27. In answer to Mr. Corrigan who, with Mr. Plowman, represented all the appellants at trial, Ho said that prior to an approach by a police officer while he was in Lai Chi Kok Detention Centre he had given the length of the sentence he might receive no thought. This was a strange attitude to have adopted as the trial judge pointed out when reminding the jury of a number of questionable features in his evidence but no inconsistency with the terms of any of the undisclosed statements is demonstrated in that regard. I cannot think that the revelation of Ho's subsequently developed interest in his potential sentence when hope had been kindled, even in conjunction with his prevarication in relation to the Dickson Watch Company robbery, could have afforded the defence significant grist to their mill, affected the credibility of Ho's evidence to a further material degree or led the jury to bring in different verdicts. The situation was in no way analogous to failure by the Crown to reveal the previous conviction of a sole prosecution witness as to the facts who had been presented as a person of good character. R. v. Paraskeva[11].

28. In the premises while the prosecution were at fault in failing to disclose the documents to the defence in the course of the trial and such failure constituted a material irregularity it did not, in my opinion, render any conviction unsafe or unsatisfactory in all the circumstances: Section 83(1)(a) and (c) of the ,Criminal Procedure Ordinance. Since I am satisfied that the Crown's default occasioned no miscarriage of justice I would apply the proviso to Section 83(1).

29. In summary. I would allow all the applications before the Court whether for an order under Section 83V(1)(a) of the Criminal Procedure Ordinance or for leave to rely upon fresh grounds or to appeal against conviction. The hearing should be treated as the hearing of the appeal. I would allow the appeals of the Cheung Hoi Kuen and Fung To Shan on the robbery count (3) of the indictment at of Lui Tat Hang on the count for conspiracy to kidnap a person for ransom (6). Such convictions should be quashed and the related sentences of imprisonment set aside. I would dismiss the remaining appeals.

Clough, J.A.:

30. I have had the advantage of reading in draft the judgment prepared by Kempster J.A.. I agree with it and with the orders he proposes to be made on all the applications and appeals.

31. I only add a few words in deference to one aspect of the able argument advanced by Mr. Plowman on behalf of Cheung Chi-fung (D5) concerning his conviction under counts 8 and 9 of possession of arms and ammunition without a licence.

32. In the event Wai Chi-nam (D1) and Cheung Chi-fung (D5) were the only defendants in respect of whom the jury's verdict was required under counts 8 and 9 at the end of the trial. The two accomplices, Chan and Ho had pleaded guilty to both counts. The judge had upheld a submission of no case to answer made on behalf of Lui Tat-hang (D2),

33. Cheung Hoi-kuen (D3) and than Chi-kuen (D6). In support of his argument that this court should entertain a lurking doubt about the conviction of Cheung Chi-fung (D5) on those counts, Mr. Plowman contended that in the light of the acquittal of Wai Chi-nam (D1) on the same counts the conviction of Cheung Chi-fung was almost perverse.

33. In rejecting this contention I emphasise that the Crown's case against each of the two defendants in question was not dependent on the same evidence. In acquitting Wai Chi-nam (D1) the jury was not prepared to infer joint possession of the arms and ammunition by him together with others by reason of his association with the two accomplice witnesses (who had pleaded guilty to counts 8 and 9) or by reason of the accomplices' evidence that he had previously supplied arms for the gang of which he was the leader.

34. On the other hand Cheung Chi-fung (D5) had admitted in his cautioned statement that he had permitted the introduction of firearms into his premises by one of the accomplice witnesses on the 23rd September 1985. On the next day a 38 revolver and some loose ammunition were found by the police in a tray on the shelf of a wall unit in the sitting room. In convicting Cheung Chi-fung (D5) on the evidence before them the jury could not have been satisfied on the balance of probabilities that he had, by the self serving part of his cautioned statement or otherwise, rebutted the presumption of possession arising against him under section 24(1)(b) of the Firearms and Ammunition Ordinance (Cap. 238).

35. There was thus ample evidence to justify the jury's finding of joint possession against Cheung Chi-fung (D5). Wai Chi-nam (D1) may have been fortunate to be acquitted, but in my judgment his acquittal in no way renders the conviction of Cheung Chi-fung unsafe or unsatisfactory. I accordingly agree with Kempster. J.A. that it would constitute a usurpation of the functions of the jury to interfere.

Penlington, J.:

36. I agree with the orders proposed for the reasons given by Kempster and Clough, JJ.A.

Desmond Keane, Q.C., Gary Plowman (Haldane Midgley & Co.) for D1.

Gary Plowman (Haldane Midgley & Co.) for D2, D3, D5 & D7.

J. McNamara, Roger Leclaire for Crown.

[1]  [1969] 1 Q.B. 267

[2]  [1916] 2 K.B. 658

[3]  3 Cox, C.C. 526, 531

[4]  [1916] 22 C.L.R. 381

[5]  [1914] 19 C.L.R. 409

[6]  [1982] 1 W.L.R. 461

[7]  [1986] 82 Cr. App. R. 173

[8]  1 Cox, C.C. 177

[9]  Cr. App. No. 406 of 1985 (unreported)

[10]  [1958] A.C. 167

[11]  [1983] 76 Cr. App. R. 162