Ho Ping-fai (on Bail) v. The Queen

CACC000751/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.751 OF 1974

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Coram: Briggs, C.J., Huggins and McMullin, JJ.

Date of Judgment: 14th January, 1975.

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JUDGMENT

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1. The appellant was convicted of two offences (1) selling tobacco to a prisoner contrary to section 19(a) of the Prisons Ordinance, and (2), criminal intimidation. He appeals against both convictions.

2. The appellant was at the material time an officer in the Prisons Department stationed at the Cape Collinson Training Centre. The complainant, CHAN Wing-shing, was an inmate of the Training Centre.

3. Chan obtained money from a Miss Mak, one of his friends who visited him at the Centre, in order to purchase tobacco for his own use in the prison. He purchased cigarettes from the appellant but the appellant did not hand over the full quantity of packets which were agreed upon.

4. In her evidence, Miss Mak said that she knew that the money she gave to Chan would be used for the illegal purchase of cigarettes. And it was conceded by the Crown at the hearing of the appeal that she was therefore an accomplice. There was no corroboration of the evidence of Miss Mak.

5. In his judgment the learned trial judge does not mention this. It is nowhere apparent that he considered her to be an accomplice; nor that it was desirable that her evidence should be corroborated.

6. Mr. Eddis, who appeared for the appellant quoted various authorities to us. We think that it is only necessary to quote one. It was held in the case of WU Sui-yee & Others v. R.⁽¹⁾ that where a judge is sitting alone without a jury, as was the case here "is mindful of convicting on the uncorroborated evidence of an accomplice, all that is necessary is that he should make it clear that the danger of so convicting was present in his mind.

7. In the circumstances, we allowed the appeal on the first charge and quashed the conviction and set aside the sentence.

8. The second charge was for intimidation. The complainant, Chan, said that the appellant instituted disciplinary proceedings against him for being in illegal possession of a packet of cigarettes. However the proceedings ended in Chan's favour with consequent loss of face to the appellant. Chan said that shortly after this the appellant threatened him that he could plant heroin on him and warned him to be careful. These threats were also made to another inmate of the Centre, one Pang, who was a friend of Chan and the go-between the appellant and Chan. Chan and Pang escaped from the Centre but were quickly recaptured. They were interviewed by a member of the Independent Commission against Corruption. It was in this way that the whole story came out. The trial judge accepted the evidence of Chan on this aspect of the case. He also believed the evidence of Pang. Pang was not an accomplice but his evidence corroborated the evidence of Chan in all material particulars.

9. In the event, we dismissed the appeal on the second charge.

Representation:

Eddis (Gunston & Chow) for appellant.

Stapp, c.c. for Crown/respondent.

(1) (1969) H.K.L.R. 224.