The Queen v. Wu Tat Wai and Another

CACC000074/1991

HEADNOTE

The court held that it was not incumbent upon a judge to spell out in specific terms that he had warned himself of the risk involved in convicting on the uncorroborated evidence of an accomplice. It is enough if the judge uses words which demonstrate that he was aware of the danger. A defendant who does not call for the production of evidence in the possession of the Crown which might be in his favour but through his counsel, having become aware of the existence and nature of the evidence, deliberately refrain from calling for it to be produced, cannot be heard to complain of an injustice on appeal. Entries in a notebook were properly held to be capable of being corroboration.

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Coram: Hon. Yang C.J., Silke, V.-P. and Power J.A.

Date of Hearing: 24 - 25 October 1991

Date of Judgment: 25 October 1991

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicants were two of five defendants who faced a charge that they, on divers days between the months of February 1988 and November 1988, in Hong Kong, conspired together with HO Hung-fai and NG Gim-hin to take part in bringing women into Hong Kong for the purpose of prostitution. The 1st defendant (A1), the 2nd defendant (A2), the 4th defendant and the 5th defendant were convicted after trial. The 1st defendant and the 2nd defendant now appeal against that conviction. The personae at the trial were:the 1st defendant David WU Tat-wai, a serving Immigration Officer, the 2nd defendant TANG Chi-kuen, an ex-senior Immigration Officer and a friend of the 1st defendant, the 3rd defendant CHENG Kwok-hoi with whom we need not concern ourselves, the 4th defendant CHAN Ping-lam who was the proprietor of a transportation company, and the 5th defendant KUNG Wing-kong who can shortly be described as an arranger. Also figuring in the trial were Ah Chung who was an employee of the 4th defendant and HO Hung-fai, the principal prosecution witness, who was PW9. WONG Kam-ming also known as NG Gim-hin was PW3 but his evidence was not of significance in the outcome.

3. The importance of the evidence of PW9 was made plain by the trial judge at the outset. He said that - "In relation to the 1st defendant and to a very great extent the 2nd defendant the evidence relied upon is that of a co-accused PW9."

4. The trial judge in his reasons outlined the evidence of PW9 saying that he was a pimp who escorted girls to hotels in Hong Kong. He outlined the evidence of PW9 as follows: At a meeting in August or September 1988, the 5th defendant asked him to go to tea saying to him someone wanted to arrange girls. At that meeting, the 6th defendant introduced him to the 4th defendant and to Ah Chung. There was a discussion then about bringing girls to Hong Kong and the 4th defendant then told PW9 to exchange telephone numbers with An Chung. In October 1988, PW9 contacted An Chung and they met at the Hunghom Railway Station and were there joined by PW8 and the 1st defendant. The 1st defendant raised the cost of bringing girls to Hong Kong and asked for an explanation as to how the monies that would be earned by the girls would be distributed. Finally he said that he would think the matter over and he told PW9 to give his telephone number to PW8. About a week later the 4th defendant told PW9 to go to the Grand Hotel. The 4th defendant, the 5th defendant and PW9 met as arranged and they were there joined by PW8 and by the 1st defendant and 2nd defendant. The 1st defendant said that the 2nd defendant would contact PW9 in future in relation to, to quote the words used, "doing the girls" matter on the Thailand side" and he instructed PW9 to exchange telephone numbers with the 2nd defendant. The 2nd defendant arranged a further meeting with PW9 several days later at the Grand Hotel. PW9 went there and met the 2nd defendant and the 1st defendant who told him to set off for Thailand and select 8 to 10 girls for eventual selection by the 2nd defendant who would go to Thailand for that purpose and who would give instructions in Thailand as to consequential matters. On 31st October 1988, PW9 went to Thailand and, with the help of two friends, selected six girls. He telephoned to the 2nd defendant in Hong Kong and told him of this and the 2nd defendant arrived in Thailand on 2nd November 1988. (That he did fly to Thailand was an agreed fact.) He was met at the airport by PW9 and taken to the Diamond notel.

5. On the following day, arrangements were made for the girls to the 2nd defendant's room one by one. This having been done, the 2nd defendant told PW9 that he had selected four girls and that they should join tours going to Hong Kong. On 12th November, PW9 and his two friends went to a travel agency and booked two girls to go to Hong Kong on 16th November and then went to another agency and book the other two to go on 17th November. The money for the tickets was provided by the two friends of PW9. (It was an agreed fact that on 13th November, the 2nd defendant went to Bangkok from Hong Kong.) On the morning of 16th November, the 2nd defendant and one of PW9's two friends escorted the two girls to the Bangkok Airport. It was later learnt that the two girls were refused entry to Hong Kong and the 2nd defendant then said he would call the 1st defendant in Hong Kong. Having made a telephone call, he reported that there had been a problem at Hong Kong Airport and that the 1st defendant had issued instructions that the two girls booked to travel on the following day should not go for the time being. On 18th November, PW9 and the 2nd accused returned to Hong Kong. On 25th November, PW9 met the 1st and the 2nd defendants in the Grand Hotel Coffee Shop and PW9 showed them the invoice issued by the travel agency for the two girls who were not admitted into Hong Kong. He pressed for reimbursement of the passage money which had been paid by his friends. The 1st accused disavowed any responsibility for the loss thus incurred and this angered PW9.

6. The trial judge had no doubt as to the truthfulness of the evidence and, relying in large part upon it, indeed, solely as regards the 1st defendant, was satisfied beyond reasonable doubt as to the guilt of both the 1st and the 2nd defendants.

7. Mr. Sanguinetti who appears for the 1st defendant has argued five grounds of appeal. In his first ground, he submitted that the trial judge "did not warn or adequately warn himself of the risk involved in convicting the 1st applicant solely on the uncorroborated evidence of the accomplice - Mr. HO Hung-fai." He submits that nowhere is there an indication of an accomplice warning and relying upon the authority of CHIU Nang-hong v. the Public Prosecutor [1984] 1 WLR at 1279 (P.C.), he submits that a failure by a judge sitting alone to demonstrate within his judgment that he has properly warned himself is fatal. He refers particularly to the passage at p.1285 which reads as follows:

"Their Lordships would add that even had this been a case where the judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant's evidence, nevertheless they do not think that the conviction could have been left to stand. For in such a case a judge, sitting alone, should, in their Lordship's view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge's mind upon the matter should be clearly reviewed.

Their Lordships recognize the careful nature of the judgment in the present case: but on this particular point it is ambiguous as the differing interpretations of the Court of Appeal and of their Lordships show; and there should be no ambiguity upon such a matter where the liberty of the subject is involved."

We were referred also to cases which involved directions given by trial judges to juries but did not find any real assistance from those cases as the circumstances there obtaining were necessarily substantially different from the situation where a professional judge is sitting alone. We are satisfied, as indicated in CHIU Nang-hong's case, that we must look to the reasons for verdict and ask whether the trial judge has demonstrated that he had properly warned himself. What he said in this regard was:

"I am conscious, of course, that he is a co-conspirator on his own evidence and that before accepting the evidence of a co-conspirator one must look very carefully at his evidence and scrutinize it carefully before deciding whether it can be accepted or not. In the case of the 1st accused there is no corroboration from a source outside of PW9 for his evidence. In the case of the 2nd accused there is evidence which I take to be corroborative of his evidence and that's to be found in the notebook which was discovered in the house search of the 2nd accused by officers of the I.C.A.C. Counsel for the Crown suggested that some corroboration of PW9's evidence implicating the 2nd accused may be found too in the invoice which was tendered in evidence. The invoice supports evidence of PW9 but does not itself implicate the 2nd accused. The cautioned statements of 4th accused and of 5th accused provide corroboration of PW9's evidence implicating them in the agreement.

However, even looking at the evidence of PW9 with the greatest of suspicion, I am satisfied that he was telling the truth and he told the truth to the best of his recollection and that in respect of dates and conversation his evidence is consistent, believable and reliable."

The trial judge, as this passage shows was clearly conscious of the need to look for corroboration. The passage further indicates to us that he was applying the right test when determining what evidence was capable of constituting corroboration - we will return to this aspect of the matter later when dealing with the arguments advanced on behalf of the 2nd accused.

8. The argument of Mr. Sanguinetti, as he appears to concede, involves the contention that the trial judge knew what corroboration was, knew the test to be applied when looking to see whether it existed, but was unaware of the reason why he was carrying that exercise and of the use to which the evidence should be put. We have borne in mind all that Mr. Sanguinetti has urged but in the outcome have no doubt that the judge showed himself to be clearly aware of the danger of convicting on uncorroborated evidence of an accomplice and that he, in the passage to which I have just made reference, demonstrated himself to be so aware.

9. I turn next to the second ground of appeal which was that the "evidence of PW9 was unreliable as shown ex-facie on the relevant part of the Transcript and particularly so as he had a grudge against the aforesaid 1st Applicant.

10. Mr. Sanguinetti refers in this regard to case of John Pattinson and James Laws (1974) 58 Cr.App.K. 417. He drew our attention particularly to the passage at p.426 which reads as follows:

"Gibson had the clearest possible motive for shifting responsibility from himself to another. It was pointed out by Mr. Taylor, who has appeared on Laws's behalf before this court, that Gibson's evidence at the trial was in many places in contradiction to what he had said in statements to the police and at the magistrates' court when he was giving evidence for the purposes of the depositions. He cannot be regarded as a satisfactory witness."

It was argued by the Crown in that case that Gibson's evidence was corroborated in two respects. The trial judge accepted that there was evidence capable of being corroboration on one of the points but not on the other. The court having dealt with the issue of corroboration went on to say:

"Indeed the issue for the court has been whether Gibson's evidence was credible. If it was not credible, then the question of corroboration just does not arise at all. It has been a very worrying decision for this Court to decide whether in all the circumstances Gibson's evidence can be regarded as credible. But we have come to the conclusion that it was so tainted, and that the story he told so unsatisfactory in its detail that it ought not to have been accepted, and this Court certainly is not prepared to accept it. It follows then that his conviction must be quashed." (Emphasis supplied.)

The court was clearly satisfied that this man has so discredited himself that no court could properly have held him to be a witness of truth.

11. Mr. Sanguinetti has indicated passages in the cross-examination of PW9 when he hesitated and passages where he was, it would seem from the record, to an extent nonplussed. He has also reminded us of his admitted hatred of the 1st defendant. The position in the present case is, in our view, a far cry from that which faced the court in that of Pattinson and Laws. There, the contradictions between the evidence and the earlier statements of the witness were, on their face, such as to satisfy the court that his evidence was "so unsatisfactory in its detail that it ought not to have been accepted". The matters to which Mr. Sanguinetti has referred us undoubtedly raise issues of credit. They are, however, of the kind which occur in trial after trial and which are essentially for the determination of the trial judge. It is he who sees the witnesses, and he who must make his assessment as to the credit of which they are worthy. There is nothing in the record in the present case which would warrant our interference in the decision of the trial judge thereon. Indeed, as regards PW9's admitted hatred of the 1st defendant, it might be argued that this gives credibility to his evidence, as it was his evidence that it grew out of what he considered to be the 1st defendant's unreasonable failure to contribute to the expenses in Thailand.

12. Ground 3 submitted that the trial judge:

".... erred in law in allowing hearsay evidence to be adduced in so far as it incriminated the aforesaid 1st Applicant, and specifically relying on same in his Reasons for Verdict."

This refers to the evidence of PW9 in which he told the court what the 2nd defendant had told him of his telephone conversation with the 1st defendant when he rang him from Bangkok to Hong Kong shortly after the 16th November 1988. Mr. Sanguinetti submits that this repetition was clearly hearsay and was inadmissible. Whether or not it be hearsay, the objection to admissibility must fail as it was clearly admissible evidence against all conspirators, being a declaration by one of them in furtherance of the conspiracy.

13. We turn to Ground 4 which submits that the judge

".... misdirected himself in law in that he shifted the burden of proof on to the aforesaid 1st Applicant to prove that PW9 was not telling the truth and that Mr. Fung Chi Ming had fabricated the conversation specified in the following particulars.

Particulars

The Learned Judge said in his Reasons for Verdict that,

i)     'I am not satisfied that he (PW9) was attempting to keep or was keeping anything back'.

ii)     'I am satisfied that the evidence that PW9 gave is true. And I am satisfied that he was not coached or induced to say things had been said or done when they had not been'.

iii)     'I am not satisfied that PW10 has gone to the extent of fabricating the conversation which he says in his evidence in the witness box he did overhear.'"

Mr. Sanguinetti submits that when these passages are analysed, they show a shifting of the onus and a confusion of thought which maxes the conviction both unsafe and unsatisfactory. He accepts as regards (ii) above that when the judge used the word "satisfied", he must have meant "satisfied beyond reasonable doubt". He paraphrases this passage as follows:

"I am satisfied beyond reasonable doubt that the evidence that PW9 gave is true. And I am satisfied beyond reasonable doubt that he was not coached or induced to say things had been said or done when they had not been."

He then applies the same reasoning to (i) and (iii), which contain negatives, reading them thus:

"(i)     I am not satisfied beyond reasonable doubt that PW9 was attempting to keep or was keeping anything back."

"(iii)     I am not satisfied beyond reasonable doubt that PW10 has gone to the extent of fabricating the conversation which he says in his evidence in the witness box he did overhear."

He argues that the trial judge here clearly throws the onus onto the defence.

14. The sentences are of course unobjectionable if the negative is placed in the position in which it appears in the second sentence of (ii). When considering this ground, we are satisfied that the passage must be read in the context of the Reasons as a whole. In particular it must be borne in mind that, at the outset, the trial judge had indicated the proper onus by saying:

"At the end or that exercise, in my judgment, it has been established, and established beyond reasonable doubt, that each of the accused was a participant in the conspiracy alleged in the charge sheet"

and that again, on the final page of the Reasons, he said:

"I am, as I have said, left in no doubt that it has been established beyond reasonable doubt that each of the four accused, that is the 1st, 2nd, 4th and the 5th, did agree with others to the arrangement".

When the Reasons are read as a whole, we are left in no doubt that the trial judge had the proper onus in mind throughout and that he inadvertently misplaced negatives in the two passages of which complaint is made. We are satisfied that he did not wrongly shift the burden of proof onto the defence.

15. In Ground 4A, complaint is made that:

"The Crown failed in their duty to supply the Defence with the tape recording done by P.W.9 of the conversation between P.W.9 and the 1st Applicant. Accordingly, the Court and the Defence were deprived of a legitimate chance to know the 'warts and all' of P.W.9 which might affect his credibility."

16. This tape recording was referred to during cross-examination of PW9:

"Q. In the first ICAC interview, shortly before it ended, you told the ICAC officers, that you had recorded a conversation with wu, on tape.

A. Yes.

Q. That you had done that in Guang Dung Hotel in Hong Kong?

A. Yes.

Q. You said, 'It had been recorded once. I failed to record it.' That's what the transcript of the interview says.

A. I meant it was not recorded clearly.

Q. Later you said 'It was recorded in the Guang Dung Hotel'. That is, it was recorded twice?

A. No. It was recorded only once.

Q. Mr. Law said, 'it was not successful too'. Does that not mean two attempts to record?

A. I knew nothing about it. I had only recorded once.

Q. At the time you made this recording you knew that Mr. Wu was an Immigration Officer?

A. Yes. The reason I wanted to record his conversation was that I was in fear that in future he might make a fool of me.

Q. Over what? For doing what?"

It was Mr. Sanguinetti's submission that the suggested failure of duty of the Crown was an additional factor to be weighed when considering whether the verdict was unsafe and unsatisfactory. He referred to The Queen v. TSUI Lai-ying & others [1987] HKLR 857 at 873 where Silke J.A. said:

"It is clear beyond peradventure that in cases like this the accomplice should be presented to the court warts and all. The defence is entitled to know everything about him, the terms of the immunity and any matters surrounding it which could affect the credibility of his evidence."

That case was primarily concerned with the failure of the Crown to reveal the full terms of an immunity given to witness. There was, of course, no such failure in the present matter.

17. The significance of the tape must be examined against the background of the following two considerations. Firstly, it was never clearly established that the tape was made during the period of the conspiracy charged. Mr. Sanguinetti answers this by submitting that the date of the making of the tape is irrelevant as its contents may go to the credit of the witness whenever it was made. Secondly, according to PW9, it was taped in order to obtain a record that would be adverse to the interest of the first defendant. If this be so, the tape might well have been more damaging than helpful to the defence. Mr. Sanguinetti answers this by saying that it should, whatever it contained, have been revealed to the defence so that they could make of it what they would.

18. This, in our view, brings us to the real issue. The existence of the tape but not its contents was revealed to the defence before PW4 commenced to give his evidence. Counsel did not, when he became aware of the existence of the tape, seek to obtain a transcript of it. The nature of the tape, but again not its contents, was revealed in the course of the cross-examination but again counsel did not seek to obtain a transcript. Whether or not the Crown should have provided a transcript without any request being made is no longer the issue. Its existence and nature were revealed and defence counsel clearly, and understandably, in our view, made a conscious decision not to pursue this matter. We are quite satisfied that the 1st defendant cannot now be heard to complain that any injustice has been occasioned to him by the course which the trial took in this regard.

19. We turn now to Ground 4B which submits that the judge:

".... erred in law in using and relying on parts of the statements made by CHAN Ping-lam and KUNG Wing-kong, the 4th and 5th accused, in considering the case against the 1st applicant."

This ground can appropriately be dealt with at the same trial Grounds 4A and B argued by Mr. Hoosen, who appeared for the 2nd defendant, which read as follows:

"4A The learned trial judge further misdirected himself on the evidence in stating that PW9 gave evidence.

(i)    (in chief) that An Chung was an employee or clerk of the 4th defendant,

(ii)    that the way in which the various defendants were brought into the conspiracy involved a stage where the 4th defendant, through PW8, brought the 1st defendant into it,

4B     In making the findings in Ground 4A (which were part of his findings in considering the case against the 2nd appellant), the learned trial judge erred in relying on evidence inadmissible against the 2nd appellant, namely the cautioned statements made by the 4th and 5th defendants."

The complaint, in short, is that the trial judge, when reviewing the evidence of PW9, showed with regard to two matters which he wrongly attributed to PW9's evidence contained in the cautioned statements of the 4th and 5th defendants. The first time he did so was when he referred to An Chung as a "clerk" of the 4th defendant. This was the description used by the 4th defendant in his statement whereas PW9 had done no more than An Chung was an employee of the 4th defendant. The second time he did so was when he said that PW9 had given evidence that the 4th defendant, through PW8, had brought the 1st defendant into the conspiracy. This information was contained in the statements of both the 4th and 5th defendants. PW9 in his evidence in this regard had simply said that Ah Chung, who was employed by the 4th defendant, had arranged a meeting between himself, the 1st defendant and PW8.

20. Given that the trial judge was mistaken as to the two matters set out above, we would, had these stood alone, have had no hesitation in holding that they were not matters of any real weight when considered in the overall context of the trial. However, both counsel urge that the mistakes reveal, or at least, indicate that the possibility exists, that the trial judge was, when considering the evidence against the 1st defendant and the 2nd defendant, influenced throughout by the evidence, inadmissible against them, which was contained in the statements of the 4th defendant and the 5th defendant.

21. A careful dissection of the outline of the evidence of PW9 set out by the trial judge reveals nothing else in the outline or indeed in the judge's reasons overall to indicate that he, in any other way, relied upon the statements of the 4th and 5th defendants when coming to his conclusion as to the guilt of the 1st and 2nd defendant. Indeed, the reference which he makes to those statements indicates a proper use thereof against the 4th and 5th defendants. He said: "The cautioned statements of the 4th defendant and of the 5th defendant provide corroboration of PW9's evidence implicating them in the agreement". It would, in our view, be quite wrong to apportion to these two relatively insignificant mistakes the significance suggested by counsel. They will simply not bear the weight of argument placed upon them.

22. We turn now to the grounds argued by Mr. Hoosen. Grounds 1 and 2 can be taken together:

"1.     The learned trial judge erred and misdirected himself on the evidence when he held that there was evidence from the accomplice (PW9) that the 2nd Applicant went to the travel agency to arrange the travel plans of two girls (who were said by PW9 to have been chosen to come to Hong Kong as prostitutes), when in fact there was no such evidence whether from PW9 or otherwise.

2.     The learned trial judge further erred and misdirected himself when he held that this evidence from PW9, namely that the 2nd Applicant went to the travel agency, was supported by a tour company invoice in that:

(i)     there was no such evidence from PW9, that can be supported by the invoice;

(ii)     even if there was any evidence to the alleged effect, it could not be supported by the invoice,

(iii)     the learned judge wrongly held in effect that PW9's evidence was corroborated by the invoice and/or that the invoice otherwise implicated the 2nd Applicant."

23. The passage of which complaint is made appears at p. 26 of the trial judge's reasons. It reads as follows:

"it was said on behalf of the 2nd accused that there is no evidence to show that the 2nd accused went to the travel agency to look after the travels of these two girls but of course there is evidence and that evidence came from PW9 and is supported by the invoice."

This passage can only be properly understood when looked at in the context of the Reasons overall. The evidence which came from PW9 in this regard had been clearly and correctly set out by the trial judge at p.8 and p.10 of his Reasons as follows:

"On the 12th of November 1988, the two friends of PW9 together with PW9 went to a travel agency where tickets were booked for two of the four girls on a tour to Hong Kong leaving on the 16th of November. And then arrangements were made at another tourist agency for the other two girls to join a tour going to Hong Kong leaving Bangkok on the 17th of November. The two friends of PW9 paid the cost of the air tickets for the tour for the two girls to leave on the 16th of November. On the morning of the 16th of November the 2nd accused and one of the two friends of PW9 escorted the two girls to the Bangkok Airport."

"Back in Hong Kong, because he was being pressed by his two friends for repayment, PW9 phoned the 2nd accused and asked him to make an appointment for him to see the 1st accused. Subsequently, around the 25th of November, the 1st and the 2nd accused arrived at the Grand Hotel Coffee Shop and on this occasion PW9 showed the invoice which had been issued by the travel agency for the two girls who travelled on the 16th of November to the 1st accused asking that he be reimbursed so that he could reimburse his two friends."

24. At p.11 of the Reasons, the judge again referred to the visit to the travel agent saying:

"Counsel for the Crown suggested that some corroboration of PW9's evidence implicating the 2nd accused may be found too in the invoice which was tendered in evidence. The invoice supports the evidence of PW9 but does not itself implicate the 2nd accused."

The trial judge in the above passages showed himself properly to have comprehended the evidence of PW9. We have no doubt, despite the inelegant phrasin, of the sentence, that when the judge spoke of the evidence of PW9 at p.26 he was referring to the evidence which he had earlier outlined.

25. We turn to the final two grounds of appeal argued by Mr. Hoosen. Ground 3 complained that the judge had:

".... erred in holding that a notebook found at the 2nd applicant's premises was corroboration in that it only shows that it contains two names which corresponded to the names of the two Thai girls who were refused entry into Hong Kong and whose names appear on the invoice, but it does not show either of itself or in conjunction with any other independent evidence or tend to show that the 2nd applicant was connected with these two girls in a material particular of the offence, i.e. that they were being brought to Hong Kong as prostitutes, and there was no independent evidence to show that they were connected with prostitution.

Ground 4 was in the alternative submitting that:

"if the note-book was capable or being corroborated, the learned judge failed to consider adequately or at all the limited effect of such corroboration."

Before proceeding, we indicate that Mr. Hoosen during argument, stated that ground 4 did not convey the sense intended by him. He said that it would be his submission that the notebook was not corroboration at all but was, at most, no more than supporting evidence.

26. The notebook itself must be examined when considering this submission. It goes considerably beyond the ambit suggested by Mr. Hoosen. It contains the names of six persons all of whom have Thai names. Two of them are the names of the girls who, as established by the admitted facts, did come to Hong Kong and were turned away. The notations themselves appear to indicate that at least two of the others are female. The notebook also indicates that it was dealing with persons travelling to Hong Kong. The question is whether this notebook is capable of corroborating the evidence of PW9 who stated, inter alia, that the 2nd defendant went to Bangkok and interviewed 6 Thai women, of whom two later came to Hong Kong and were refused permission to enter.

27. We refer firstly to the surprisingly unreported case of The Queen v. HO Ling-hung and others Criminal Appeal No.563 of 1982, which dealt with the question of corroboration. Silke J.A. there said:

"I do not intend to delve into the murky waters of evidence 'supporting' as distinct from - or indeed the same as evidence 'corroborating'.

Baskerville (1916) 2 KB 658, to which the trial judge referred himself - the aspects of which have been elaborated upon in both Hester (1973) 57 CAR 212 and Kilbourne (1973) 57 CAR 381, - speaks of corroboration in a material particular tending to show that the accused committed the crime charged.

As Lord Reading, C.J. said in delivering the judgment of the Court at page 667:

'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, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute.'

Apposite here for the perjury charges are within such class of offences.

A little later Lord Reading went on:

"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.'"

28. Mr. Hoosen submitted that it does not tend to involve the 2nd accused in the crime charged, arguing that there was no independent evidence to indicate that the women named in the notebook were in any way connected with prostitution. It is important in this context to bear in mind that the charge was one of conspiracy to bring women into Hong Kong for the purposes of prostitution. The question is whether the notebook was capable of corroborating PW9's evidence that there was such a conspiracy. Given the contents of the notebook, we have no hesitation in holding that it was capable of being corroboration. Indeed, in our view, it was cogent corroborative evidence. Having taken this view, it is not necessary for us to say anything further with regard to Ground 4.

29. Nothing has been advanced by counsel which would make the convictions either unsafe or unsatisfactory. The application must therefore be refused.

Silke, V.-P.:

30. As was indicated by Power JA, in his giving of the judgment of the Court, I am in agreement with the reasoning and the conclusions just delivered.

31. But before leaving this case, I think the attention of counsel should be drawn to the Practice Direction under the title "Criminal Appeals", and in particular to its para 4 subpara (ii) - that appears at p.10.8 of that Practice Direction. Under the heading of "Perfected Grounds" it reads:

"Perfected grounds should consolidate all the grounds of appeal in one document. If it is necessary to amend or vary perfected grounds, then a further document to be entitled Amended Perfected Grounds should be filed in substitution for the original and with the amendments of variations underlined in red. This document will then constitute the grounds of appeal to be argued at the hearing."

32. There should be a single document and not as here, a number of extra documents introducing separate grounds added to the documents originally headed, in one case, Perfected Ground of Appeal against Conviction and, in the other, Grounds of Appeal against Convictions.

Representation:

Mr. M.A. McManon (Crown Prosecutor) for the Respondent.

Mr. A.J.J. Sanguinetti and Mr. M.K. Wong (instructed by Messrs. Ip & Willis) for D1/1st Applicant.

Mr. A.A. Hoosen (instructed by Messrs. Ip & Willis) for D2/2nd Applicant.