The Queen v. Liu Kan Por and Others

IN THE COURT OF APPEAL

1987 No.83
(Criminal)

BETWEEN:

THE QUEEN

and

LIU KAN POR (D.1)

LUI MEI LIN (D.3)

YICK WAI MING (D.4)

Coram: Yang, Ag. C.J. Kempster & Power, JJ.A.

Date of Hearing: 5th June, 1987.

Date of Delivery of Judgment: 25th June, 1987.

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JUDGMENT

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Yang, A.g. C.J.

1. The applicants, D.1, D.3 and D.4, were each convicted after trial of one count of forgery of dies and another count of forgery of valuable securities. D.1 was additionally convicted, also after trial, of a count of possession of forged dies. Deputy Judge Ryan imposed sentences of three years' and four years’ imprisonment respectively for the two counts of forgery on each of the applicants, and a sentence of one year on D.1 for possession of forged dies. The sentences were to run concurrently.

2. The applicants now seek leave to appeal against conviction. D.1 and D.3 also apply for leave to appeal against sentence.

The Crown's Case

3. The Crown’s case, in respect of the two counts of forgery, may be stated briefly. In the early part of 1986, D.3 approached a Mr. YUEN Ching-ping (P.W.4) and asked him if he knew anybody who could do some printing, whereupon Mr. Yuen introduced D.1 to D.3.

4. In mid-March, D.1 contacted his younger brother (P.W.1) and at D.1's premises P.W.1 was shown a genuine Indonesian revenue stamp as a sample. D.1 told P.W.1 that he had a woman friend who wanted some printing of the stamp done. After some enquiries, P.W.1 found D.4, who, having informed himself of a description of the stamp and of what needed to be printed, said that he was already doing a similar job for someone.

5. A number of meetings followed. The fees for printing were agreed upon. During a meeting at which P.W.1 was present, a Mr. LAW Wing-kwan (P.W.2) gave D.4 some money and told D.4 to proceed with the printing. Three days' later Law (P.W.2) gave P.W.1 a bag containing samples and these W8re shown to D.1 and D.3.

6. There were then meetings between P.W.1, D.1 and D.3 and also between P.W.1 and D.4. It is not in dispute that dies for the printing of forged Indonesian revenue stamps were made and a large number of stamps were in fact forged.

7. The true issue at the trial was simply one of guilty knowledge. In effect, what the applicants said was this: "We did do these things but we did not have any dishonest intent. We did not know what we did was illegal."

8. As to the charge of possession of forged dies, there is D.1' s own evidence that by the 11th of June, 1986 (the date specified in the indictment) he knew he was holding in his possession forged dies purporting to be Indonesian revenue stamps. It may be recalled that he also said in evidence that he became suspicious as to "what were the printed matters” (i.e. the Indonesian revenue stamps). He showed them to an Indonesian Consul, Mr. Sujata, who told him these were "Indonesian duty stamps" and “it was a syndicate doing the forgery”. He then became aware that these were counterfeit Indonesian revenue stamps.

The Grounds of Appeal.

9. In seeking to have his conviction quashed, D.1 repeats his own evidence in the court below, stresses the alleged lacunae in the prosecution's case and inconsistencies of the evidence of the prosecution witnesses, and points out such evidence as he considers to be not creditworthy.

10. We do not think it necessary to repeat what he has submitted before us: these are all jury matters, and there is nothing in what he says that might lead us to think that the jury's verdict should be. upset on the grounds he has advanced. There is, however, a complaint raised by Mr. Alderdice on behalf of D.4, which is relevant to D.1's case. We shall come to this complaint shortly when we deal with D.4.

11. D.3's grounds of appeal revolve around one central issue only, namely, whether the trial judge erred in law or, alternatively, wrongly exercised his discretion, in nut permitting cross-examination of D.1 by counsel acting for D.3, upon a previous cautioned statement (Ex. PP.49) made by D.1 to the police, held by the judge to be inadmissible, particularly in the light of a number of inconsistencies between what was said in that statement and D.1's evidence, and between assertions in the statement and P.W.1's evidence.

12. The answer to D.3’s complaint is to be found in the judgment of MCMullin, V.P. in Yu Tit-hoi v. R.[1], where he said (at p.16) -

"Mr. Westbrook relies on Treacy [1944] 30 Cr.App.Rep. 93 and Rice [1963] 47 Cr.App.Rep. 79. These cases are clear authority against using an inadmissible statement against the maker of it or against a co-accused of the maker. In the latter case it was said that while information contained in such a statement may be used in cross-examination, the fact that such information is derived from an induced or inadmissible statement must not be revealed to the jury. There is not, as Counsel conceded, any authority directly stating that this rule applies also where Counsel for a co-defendant - as distinct from prosecuting Counsel - seeks to use such a statement. Mr. Niamatullah for the 2nd applicant suggested, if somewhat tentatively, that a different rule should apply between co-defendants. He points out that his client was as gravely disadvantaged by not being able to contradict the evidence of the other applicants as they might have been by any adverse inference which the jury might have drawn from reference to their statements. No doubt that is so. We cannot however find any good reason for drawing such a distinction. Although a judge trying the issue in voir dire proceedings is concerned solely with voluntariness, the principle which underlies the use of that procedure is that an induced statement may be false. There can be no reason effective to disallow reference to such a statement which would not equally apply to every party to a criminal trial.”

13. The judgment of the Court 'of Appeal is clearly binding on us, but Mr. Mullick, counsel  for D.3, seeks support from R. v. Rowson[2] which adopts an attitude different to that in Yu Tit-hoi ⁽¹⁾.

14. Robert Goff, L.J., in Rowson ⁽²⁾, applying the speech of Lord Donovan in Murdoch v. Taylvr[3], said that where a defendant has made a previous written statement which has been ruled inadmissible but which is material to the defence of a co-defendant, then if the defendant gives evidence inconsistent with that statement he may be cross-examined on it on behalf of the co-defendant (see p. 542).

15. Be that as it may, here in Hong Kong, this Court has held, in R. v. Ho Sai Kuen[4] that it considered itself bound by its previous decision in Yu Ti t-hoi. If further authority be needed, it may be found in the judgment of Lord Salmon in Attorney General v. Reynolds[5], where he said -

“So long as there is an appeal from a Court of Appeal to their Lordships' Board or to the House of Lords, the Court of Appeal should follow its own decisions on a point of law and leave it to the final appellate tribunal to correct any error in law which may have crept into any previous decision of the Court of Appeal. Neither their Lordships' Board nor the House of Lords is now bound by its own decisions, and it is for them, in the very exceptional cases in which this Board or the House of Lords has plainly erred in the past, to correct those errors - just as it is for them alone to correct the errors of the Court of Appeal.”

16. It is, in our judgment, futile for counsel to argue that Yu Tit-hoi ⁽¹⁾ was wrongly decided and seek to persuade this Court to follow Rowson ⁽²⁾ instead.

17. This being the sole ground of D.3's appeal (a ground relating to D.3' s exculpatory statement having been abandoned), his application must fail.

18. We now come to D.4. Mr. Alderdice, counsel for D.4, submits that the trial judge's direction to the jury was defective in that P.W.1 was clearly an accomplice, but there was no direction as to whether there was any evidence capable of corroborating P.W.1's evidence. And similar criticism was made of the judge's direction on the evidence of a few other prosecution witnesses who might be treated as accomplices.

19. As has been noted earlier, these grounds of appeal are also relevant to D.1's application.

20. The judge gave a perfectly adequate direction to the jury on the need of corroboration of P.W.1' s evidence if they considered him to be an accomplice. He also said that P.W.1's evidence involving D.3 was uncorroborated. Referring to the evidence of n number of prosecution witnesses, he warned the jury not to use the evidence of any of these accomplices to corroborate the evidence of another accomplice.

21. Then he went on to say -

"In respect of the parts alleged by PW1 to have been played by the 1st accused and. the 4th accused, there is some evidence which comes from these defendants themselves which does, if you accept that, corroborate to a degree what PW1 has said about them. Only about them. You can't take what they have said about the 3rd accused into account but what they have said about themselves.

The 1st accused agrees that he did discuss the printing of stickers with PW1, that they were similar to the exhibits which you have got before you. And although he disagrees with some of the detail that PW1 gave, he does agree with some of the basic framework as to what took place; and where he agrees with PW1, then as far as the 1st accused is concerned, there is no dispute about those bits of the evidence. And similarly, with the 4th accused, he agrees that he did negotiate a deal with PW1; and while he also disagrees with a good deal of the detail, he does agree with that basic fact.

So you can take those into account when you come to assess the credibility of PW1 but in the areas that are contested and in the areas that are not corroborated, you have to take PW1's evidence as standing alone and you have to assess him with the warnings that I have given you in mind and decide whether or not he is telling you the truth upon the matters of importance."

22. As the only contested area was one of guilty knowledge, there were no other areas that required corroboration. The Crown does not deny that there was in fact no corroborative evidence relevant to the contested issue, namely, guilty knowledge. The judge, in his direction to the jury, did not make it clear to them what was the evidence which was capable of corroborating the only issue in dispute, nor that there was in fact no such evidence.

23. In our view the summing up is, to the extent indicated, defective as regards both D.1 and D.4 and the convictions are therefore unsafe and unsatisfactory.

Conclusions

24. For the reasons given above, we allow the applications of D.1 and D.4 in respect of their convictions on the two counts of forgery, and treat the hearing of the application as a hearing of their appeals, allow the appeals and quash the convictions. Their sentences under these two counts are set aside.

25. D.1’s application for leave to appeal against his conviction of possession of forged dies is dismissed. His application for leave to appeal against his sentence of one year's imprisonment is also. dismissed. On the facts, the sentence is clearly proper.

26. D.3's application for leave to appeal against conviction is also dismissed. D.3 having played an important role, the sentences imposed upon her cannot be said to be too heavy, her application for leave to appeal against sentence is refused.

27. In all the circumstances, we deem it proper to order a re-trial of D.1 and D.4 on the two counts of forgery. We so order and direct that a fresh indictment be preferred.

Power, JA -

28. I concur. I do, however, wish to add that I consider it unfortunate that we are not free to consider the arguments of Mr. Mullick as to the right of one defendant to cross-examine another on the contents of a cautioned statement which has been held to be inadmissible.

LIU Kan-por, D.1. Applicant in person.

Mr. J. Mullick (K. Y. Woo & Co.) for LUI Mei-lin, D.3.

Mr. G. Alderdice (C.K. Mok & Co.) for YICK Wai-ming, D.4

Mr. R.A. Dalgleish, Senior Crown Counsel, for Crown.

[1]  [1983] H.K.L.R. 7

[2]  [1985] 2 All E.R. 539

[3]  [1965] A.C. 574, 593

[4]  Cr. App. No. 471 of 1985, unreported.

[5]  [1980] A.C. 637, 660