Chan Siu-hung and Others v. The Queen

CACC001091/1975

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Coram: Huggins, Pickering, JJ.A. & McMullin, J.

Date of Judgment: 19th March, 1976.

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JUDGMENT

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McMullin, J.:

1. Five men, including the three appellants, were arrested in an isolated house at the top of a hill near the Clear Water Bay Road on the 24th April 1975 in the course of a police raid upon those premises. A quantity of equipment of a kind customarily used in the preparation of dangerous drugs was found in one of the rooms and it was clear that dangerous drugs were actually in the process of being manufactured at the time of the police raid. The drugs seized included some 13 kilogrammes of heroin. All five were charged under s.6 of the Dangerous Drugs Ordinance with manufacturing and, in a second count, possession of dangerous drugs contrary to s.7 of the Ordinance. One of them, NG Ka-tung, the original third accused, was additionally charged with permitting the premises to be used for the manufacture and storage of those drugs. He and the original fifth defendant, FONG Sum, pleaded guilty to the manufacturing count and the Crown did not proceed any further against them on the possession charge nor against the third defendant on the charge of permitting and storing. The first and second defendants (who are the present first and second appellants) and the fourth defendant, LAM Ti, were tried upon the possession and manufacturing counts and the jury returned verdicts of guilty upon those counts in respect of the first and second defendants but acquitted the fourth defendant upon both counts.

2. On the undisputed facts surrounding their arrest it was clear that the statutory presumptions relating to possession, knowledge, and possession for the purpose of trafficking arose against all defendants. The three defendants who pleaded not guilty and were tried (the first, second and fourth defendants) endeavoured to rebut these presumptions by giving evidence on their own behalf. Of the two defendants who had leaded guilty (the third and fifth defendants) only the fifth defendant was called as a witness. He was called by counsel for the second and fourth defendants and his testimony, which was strongly favourable to those defendants, was, however, clearly adverse to the interests of the first defendant. It should be added that he had been duly sentenced before giving evidence. The first defendant told the court that he was a drug addict who had gone to the premises on the date in question as a result of an invitation given to him by the fifth defendant, who had formerly worked for him at his metal work business, and who offered to treat him to some heroin at the house on the Clear Water Bay Road a house with which he was unfamiliar but which he reached by following the instructions given to him by the fifth defendant. He denied all knowledge of what was going on in the house and said that he had been taken to the particular room in which he was eventually discovered, by the fifth defendant, who supplied him with heroin as he had promised and then left him to himself. He smoked a certain quantity and then feeling dizzy he lay down and went to sleep and was later disturbed by the sound of the police arriving, tried to escape through the living room but had to retreat to the bedroom, and was arrested as he tried to hide behind the wardrobe. He denied knowing any of the other defendants apart from the fifth defendant although he admitted to having seen the third defendant, at a kind of club which he used to frequent, and the fourth defendant on one occasion at the metal work premises when he, the first defendant, was taking it over from the previous owner.

3. The story of the second defendant was that he had formerly lived in that house with the owner, a man called AU Pan, but had left it and lived elsewhere some time prior to the events concerned in the trial. About a week before the date of his arrest he said that at the request of his younger brother, the fifth defendant, he repaired a water pipe at those premises and then, once again at his brother's request, returned on the date before his arrest to set up an alarm system which he understood was to give warning of the advent of thieves. He was prevailed upon to stay that night by the fifth defendant because the work was not yet finished and he was arrested by the police on the following morning.

4. The fourth defendant's story was that the fifth defendant had engaged him to work at the premises as a cook upon the 20th of April and he had turned up to take up duty on the 23rd. He knew nothing about the anufacture of drugs upon the premises but said that he had seen the first, the third and the fifth defendant working in two of the rooms in the building one of which was the room in which the police later discovered a lighted stove with a basin upon it containing dangerous drugs in process of preparation. That evidence related to the 24th of April but in cross-examination the witness added that on the 23rd he had seen the first defendant at the premises and had had a conversation with him at the end of which the first defendant gave him orders to clean out the kitchen. Later on the same date the first defendant gave him orders to cook food for the evening.

5. The evidence of FONG Sum, originally the fifth defendant, was to the same general effect as that given by the second and fourth defendants but it is to be noted that, although he had pleaded guilty to the charge of manufacturing he clearly wished it to be understood that the first defendant was the prime mover in the business and that he himself had no active part in it. Indeed his admission went no further than agreeing that he had assisted the first defendant to procure the premises which he understood the first defendant intended to use for the purpose of rearing pigeons and that he only came to understand what its true purpose was, from what the first defendant himself told him, on the very night before the police raid.

6. The learned trial judge in dealing with this obvious conflict of interests between the accused addressed the jury in the following way:

"Not perhaps very surprisingly in this case, some of the accused have given evidence against others in effect. Particularly, the fourth accused has given evidence against the first accused, and FONG Sum, who was the fifth accused, has given evidence against the first accused though, of course, for this purpose he is not to be regarded as an accused person but as a defence witness, but if those persons, in your view, are admitting their own participation and blaming somebody else as well, they are stating themselves to be what we call 'accomplices' and naturally their evidence has to be looked at with considerable care and a certain amount of reserve if not suspicion. If the evidence against an accused person is only that of an accomplice, a person who admits himself to be an accomplice, it would be dangerous to convict a person on that evidence alone. You could do it if you found it very convincing but there is a danger in doing that. You may, however, feel that in this case there is plenty of other evidence against the individual accused. That is a matter for you. I am simply telling you of the danger that exists in convicting an accused person on the uncorroborated, unsupported evidence of a person who admits or claims to be an accomplice of that accused."

That was all he said to the jury upon this question.

7. Mr. Sedgwick, who appears on behalf of the first defendant only, concedes that, on the authority of a whole line of cases commencing with R. v. Barnes and Richards⁽¹⁾ and most recently emphasized in R. v. Russell⁽²⁾ that there is no rule of law that the jury must be warned in terms of the need for corroborative evidence where a defendant gives evidence which implicates a co-defendant. He relies however on R. v. Prater⁽³⁾, R. v. Roberts and Witney⁽⁴⁾; and also upon the decision cited above in R. v. Russell⁽²⁾ as establishing a rule at least of practice [see R. v. Stannard and Others⁽⁵⁾] which obliges a judge to give to the jury a warning in terms similar to the warning which is given in cases where accomplice evidence has been called by the Crown. He does not deny that a warning of sorts is contained in the passage from the summing-up which has been set out above but his contention is that, having justifiably referred to D.4 and D.5 as accomplices, and having told the jury that it was dangerous to convict on the uncorroborated testimony of an accomplice, he should have gone on to say: (a) what corroboration in law amounts to; (b) what evidence in the case might be relied upon as corroborating the testimony of those witnesses; and (c) that the testimony of a person who is an accomplice, in the sense that he is a participator in the actual crime charged against the accused person, is not capable of being corroborated by the testimony of another witness who is in a similar position as an accomplice.

8. It is clear that the learned judge was justified in referring to both of the witnesses as accomplices. There is however an obvious distinction between them which bears upon the nature of the testimony that they gave and the need for warning the jury in their regard. The reason for obliging a judge to warn a jury in respect of accomplice evidence has often enough been stated and is not in doubt. It is based upon the possibility that an accomplice defendant giving evidence on his own behalf may seek, in endeavouring to exculpate himself, to throw the blame upon other persons including his co-accused. That motive was very much alive in the case of the fourth defendant but it did not apply at all to the case of the fifth defendant who had already received his punishment. In his regard however there was still the possibility that in giving the evidence which he gave he might be serving a special interest of his own inasmuch as he was the brother of the second defendant and a close friend of the fourth defendant, both of whom he strove to exculpate at the expense of the first defendant. In two respects therefore it might be said that the direction which is complained of went further in favour of the accused than was strictly necessary, for not only did the learned judge not point out this distinction between the position of the fourth and the fifth defendants - a factor which might have been regarded by the jury as somewhat mitigating the danger inherent in the evidence of the fifth defendant viewed as an accomplice - but also he did not leave it to them, as strictly he should have done, to decide whether these witnesses were accomplices having pointed out to them the evidence on which they could rely for deciding that issue. Had the learned judge never referred to the need for corroboration at all we think that counsel would have found it difficult to argue that the warning given was insufficient. That warning was, indeed, as counsel for the Crown pointed out, not greatly different in substance from the direction which was criticised in R. v. Russell (supra) but which the Court of Appeal refused to regard as amounting to misdirection.

9. A review of the decided cases on this matter tends to confirm the view that this is one of those areas of the law in which the courts are troubled by the persistence of distinctions which are not always wholly easy to account for. It is difficult to assign a logical basis for the distinction which is made in this regard between unconvicted accomplice witnesses who give evidence for the Crown and those who give evidence for the defence. Since the root of the danger which is supposed to underlie the testimony of such accomplices generally is the possibility that an accomplice may be a person who, to employ the language used by the Court of Appeal in Prater's Case⁽³⁾: - "may be regarded as having some purpose of his own to serve, ..." one would think that in all cases in which a witness may be seen to have a real reason, other than his obligation to tell the truth, for speaking as he does the need to issue a warning in some form must arise. We are left however with the reality that there does exist a rule of law obliging a full and somewhat complicated direction in relation to participant accomplices who are called by the Crown; and over against that something - deriving from the decision in Prater's Case⁽³⁾ - which is not only not a rule of law but, if approached from the sceptical angle adopted by the court in Reg. v. Stannard (supra), is something in the nature of a moral exhortation rather than even a true rule of practice. The difficulty raised by Prater's Case⁽³⁾ derives from the fact that it is said that "the warning against uncorroborated evidence" should be given in every case where the testimony being scrutinised is that of a person who "may be regarded as having some purpose of his own to serve, ..." Those words suggest that in all cases where a special motive may be discerned such as might tend to cloud the value of a witness's testimony the subject should be given, if I may put it that way, "the full treatment" in the sense that the jury must be told everything which a jury normally is told when a judge is dealing with a case of participant accomplices. If the sense of the decision in Prater's Case⁽³⁾ is that it is desirable to give such a full warning whether the witness be called by the Crown or by the defence and whether he be in the full sense a participant accomplice or simply a person whose testimony may be clouded by the existence of some indirect motive, then clearly no such direction was given in the present case. The whole weight of Mr. Sedgwick's contention on behalf of the first defendant therefore comes down to this: that having chosen to treat both D.4 and D.5 as accomplices and having referred to the danger of convicting on the uncorroborated evidence of an accomplice the learned trial judge stopped short at that warning and failed to give the matter what I have referred to as the "full treatment". He did not that is to say tell them what corroboration in law amounted to; he did not tell them what evidence in the case might be regarded by them as affording corroboration; and he did not warn them that one accomplice cannot corroborate another. The whole point, that is to say, turns in effect upon the use of the word "uncorroborated" and it affords a good example of the difficulties which arise when a plain word of ordinary currency acquires in law a special mystique of its own. Mr. Sedgwick continues his argument by enlisting the authority of R. v. Trigg⁽⁶⁾ which establishes the principle that where evidence is called which, if accepted, indisputably must amount to corroboration, it is always necessary to tell the jury how dangerous it would have been to convict if there had been no such evidence. And finally he relies upon what was said by the court in the same case at page 101 in dealing with the effect of the failure to give such a warning:

"In principle this court feels that cases where no warning as to corroboration is given where it should have been should, broadly speaking, not be made the subject of the proviso to s.4. There are cases where the evidence has been such that this court has felt it possible to apply the proviso, but those cases, in the view of this court, must be regarded more as exceptional than as in any sense a regular matter."

In John Joseph O'Reilly⁽⁷⁾ - a case, in which, as in Trigg's Case⁽⁶⁾, the sole issue was the question of identity in the case of a sexual assault - Salmon L.J., giving the judgment of the court, commented upon the decision in Trigg's Case⁽⁶⁾ in the following words (page 349):

10. In the later case of Russell⁽²⁾ Diplock L.J. approved this passage from O'Reilly's Case⁽⁷⁾ and went on to say (page 150):

"The purpose of giving such a warning is to remind the jury that an accomplice may have some purpose of his own to serve in throwing the blame on the fellow-accused or on the accused person."

Although that case and a number of later cases, notably R. v. Henry & Manning⁽⁸⁾ and R. v. Price⁽⁹⁾ emphasised that there is no "magic formula" or "mumbo-jumbo" to be observed in the giving of the necessary warning the effect of all these cases is that it is still the law that in warning the jury as to the danger of an accomplice's evidence, or as to the danger inherent in the evidence of a complainant in a sexual assault case, the judge in dealing with the testimony of any witness for the Crown must tell the jury why that evidence is possibly suspect; he should tell them that it is desirable to look for corroboration of that evidence; he should tell them what corroboration in law amounts to; and he must point out what evidence in the case could in law amount to corroboration leaving it to them to decide whether it does so or not. He should of course also inform them that having considered a warning given in those terms they are entitled to convict in the absence of corroboration.

11. In the present case although there was no strict rule of law obliging the judge to warn the jury against the evidence given by D.4 and D.5, who were not prosecution witnesses, [R. v. Barnes and Richards⁽¹⁾] we think it was a case in which the judge rightly perceived it to be necessary, within the spirit of the exhortation of the court in R. v. Prater (supra) to be a case in which a special warning which was necessary. It might be argued that in giving the warning he gave it could be left to the commonsense of the jury to assume the reason for the warning. But the consensus of the cases to which reference has been made appears to be that it is desirable that the reason for the danger said to be inherent in such evidence should be explained and that was not done. Moreover, the judge presented the case to the jury as one in which corroboration of the accomplice testimony was desirable and he should therefore, as the court held in O'Reilly's Case (supra), have gone on to give the jury the usual directions as to corroboration. However, having given careful consideration to the evidence as a whole we are satisfied that, although Mr. Sedgwick reasonably complains of a defect in the direction in these two respects, yet nevertheless, no miscarriage of justice can have occurred. It is true that the evidence of D.4 and D.5 was extremely damaging to the case of the first defendant but even without it there was, if not overwhelming, then, at any rate, strong evidence pointing to his guilt. There was first of all the inherent improbability in his story of having gone to that place, far removed from his habitation and place of business, upon the casual invitation of a former acquaintance for the sole purpose of gratifying his addiction. Then there was the police evidence that the appellant, upon the arrival of the police party, was observed running out of the room in which drugs were actually being prepared upon a stove. That evidence was challenged but it cannot be said to have been seriously shaken. Finally there was the damning evidence of a fingerprint identified as that of the first defendant which was found upon a glass beaker, clearly not a domestic utensil, which was found tucked away under a desk in the main living room adjoining the room in which the preparation of drugs was going on. That beaker showed traces of heroin upon examination and in view of its position, which is clearly shown in the photograph Ex. P.1(24), it seems extremely unlikely, indeed impossible, that the appellant's fingerprint could have been inadvertently placed upon it, as he himself suggested, in the course of his flight through the sitting room at the time of the raid. In the face of this formidable evidence we do not think that the jury, even in the absence of the testimony of D.4 and D.5, could have come to any other conclusion but that the appellant was an active participant in the manufacture of the dangerous drugs. Notwithstanding what was said in the case of Trigg (supra) it is clear that, both before that decision and since, there have been many cases in which, despite the want of a proper direction on the question of corroboration, the Court of Appeal in England has nevertheless applied the proviso to s.4(1) of the Criminal Appeal Act 1907 and upheld the conviction. Notwithstanding the inadequacy of the warning given in relation to corroboration we have no hesitation in applying the proviso to s.82(2) of the Criminal Procedure Ordinance. Accordingly the appeal of the first appellant against conviction must be dismissed.

12. As to sentence, the appellant received sentences of 12 years and 7 years respectively on the first and second counts, the sentences to run concurrently. The learned trial judge regarded him as having "played rather a more leading part than the others." He is the oldest of the persons involved in the offences, 52 years of age, and has a history of drug addiction. Although the jury's verdict does not disclose the view they took of the respective parts played by the three appellants we think that on a reasonable view of all the evidence it was open to the judge to conclude that the first appellant was shown to have been the organiser of this operation. Mr. Sedgwick informed us that as a result of offences committed while he was on remand the first appellant was already serving sentences totalling twelve months at the date when he received the present sentences and that this was a fact which was not known to the trial judge. While, therefore, we feel unable to interfere with the present sentences in view of the gravity of these offences, we shall order that the sentences the subject of this appeal shall run concurrently with any sentences he may at present be serving.

13. At the conclusion of hearing the appeal of the first appellant, the second appellant, who appeals against conviction only, asked for an adjournment to apply for legal aid and this was granted. The third appellant, who appeals against sentence only, asked that a Fukienese Interpreter should be present and since no such interpreter was immediately available we adjourned the hearing of his appeal against sentence and ordered that it should be taken together with the appeal of the second appellant upon the resumed hearing.

Representation:

Mr. Sedgwick (H.M. So & Co.) for 1st Appellant.

2nd & 3rd Appellants in person.

Mr. G. Edwards, Crown Counsel for Crown/Respondent.

(1) (1940) 27 Crim. App. R. 154

(2) (1968) 52 Crim. App. R. 147

(3) (1960) 44 Crim. App. R. 83

(4) (1967) Crim. Law Review 477

(5) (1964) 48 Crim. App. R. 81 at 91

(6) (1963) 47 Crim. App. R. 94

(7) (1967) 51 Crim. App. R. 345

(8) (1969) 53 Crim. App. R. 158

(9) (1968) 52 Crim. App. R. 295