Cecil James Matthew Cunningham Benno Thompson v. The Queen
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CACC000096A/1976
Coram: Briggs, C.J., Huggins, J.A. and McMullin, J. Date of Judgment: 6 June, 1977. ----------------- JUDGMENT ----------------- 1. This is a reference to the Court of Appeal under the provisions of section 83P(1) of the Criminal Procedure Ordinance. 2. The appellants were convicted on January 5th, 1975 in the District Court of conspiracy contrary to common law. There were other charges which need not concern us here. The particulars of the conspiracy were that the appellants, being Superintendents of Police conspired together with some twelve named persons and others unknown to obstruct the course of public justice by acting contrary to their duties as police officers in relation to the administration of the law. 3. The appellants appealed and this appeal was dismissed by this Court on July 13th, 1976. 4. The case for the prosecution was that the appellants and others were operating a wide-spread scheme whereby immunity from police interference was granted to operators of gambling stalls and vice establishments in return for regular payments of money. 5. At the time of the alleged offences the appellants were stationed at the Bay View Police Station and the charge named three station sergeants from that police station as fellow conspirators. One of these three, Lau Cheong Wah, gave evidence for the prosecution. 6. This man had previously been convicted of corruption on his own plea and sentenced to one year's imprisonment. He was given an amnesty by the prosecution in respect of the conspiracy, the subject matter of the present case. At the trial he was severely cross-examined as to his past and in particular the part he had played in events preceding and surrounding the arrest of one Leung Wing Sang in another case. 7. Leung Wing Sang was convicted of murder on January 9th, 1974 and sentenced to death. His appeal was dismissed. 8. Lau Cheong Wah was one of the police officers who arrested Leung in that case. 9. After his conviction, allegations were made by Leung Wing Sang that Lau Cheong Wah had induced him to plead guilty to wounding for which he, Leung Wing Sang, was to receive $10,000. 10. A Commission of Inquiry under the Chairmanship of a High Court Judge was set up to inquire into the circumstances leading up to and surrounding the arrest and charging of Leung Wing Sang and whether or not those circumstances might have prejudiced his trial. 11. The Commission found that though Leung Wing Sang had not been prejudiced at his trial, Lau Cheong Wah had lied when he was giving evidence in the present case. He lied when answering questions put to him concerning his part in the arrest of Leung Wing Sang. The Commission also found that he had lied when giving evidence before them. 12. After the appeals of the present appellants were dismissed, Lau Cheong Wah, with another man, was found guilty of conspiracy to defeat the course of justice in the Leung Wing Sang case. Lau was also found guilty of four counts of perjury. One count related to his evidence given at the present trial and referred to the answers he gave relating to his conduct in the arrest of Leung Wing Sang. The other counts related to perjury committed in his evidence before the Commission of Inquiry. Lau absconded during the trial but he was sentenced to a total of seven years' imprisonment. 13. The terms of the present reference to this court are as follows:-
14. It is agreed by both parties that though this reference is to be dealt with as if it was an appeal by the appellants, it is not an appeal against the appeal of the appellants which was dismissed by this court on July 13th, 1976. Matters which were decided in that appeal cannot be re-opened here. We are restricted within the limits of our terms of reference. 15. Mr. Scrivener, who appeared for the appellants, urges us to disregard the evidence of Lau Cheong Wah entirely. And, he says, if that evidence is excluded from the case there is insufficient other evidence for the case to stand up. He pointed out passages in the judgment of the trial judge which clearly showed that he relied upon the evidence of Lau as being direct evidence of the conspiracy. Lau was the key witness for the prosecution and this point has been conceded by the Crown. 16. He also pointed out the corrupt character of Lau. This was referred to in the judgment of the trial judge in no uncertain terms. But Lau's evidence was relied upon and since that time he has been convicted for perjury, the perjury relating to a part of the evidence given at this trial. In those circumstances, he said, he should not be believed at all. 17. The Court of first instance and this Court at the time of the appeal were well aware of the character of Lau Cheong Wah. He was a corrupt man and had been convicted for corruption, he is now also convicted of conspiracy and perjury. 18. We do not think that we must totally exclude the evidence of this witness. It is always open to a jury, or to a judge when sitting alone, to accept part of the evidence of a witness while rejecting other parts of his evidence. The evidence of Lau as to the existence of the conspiracy between the stall holders, the station sergeants and the two appellants was accepted by the trial judge who accepted the fact that Lau was a discredited witness. The perjured evidence given by the witness was given in cross-examination and it formed no part of the case against the appellants. It was part of his cross-examination as to credit. The fact that that part of his evidence is now known to be perjured is merely proof of the man's corruption. But the fact of his corruption was fully appreciated and considered by the trial judge who had the advantage of seeing and hearing the witness himself. We do not think that had the trial judge known that that portion of the evidence of Lau was a lie he would have rejected the whole of his evidence in consequence. 19. The findings of the Commission were made public before the hearing of the appeal of the appellants in July 1976, but no reference was made to those findings at that appeal. We do not think that if these findings had been drawn to our attention on that occasion that would have affected the view we took of the quality of Lau's evidence. 20. We also think that even if the evidence of Lau is totally disregarded enough evidence remains to prove the conspiracy against the two appellants beyond reasonable doubt. This aspect of the case was dealt with in the judgment of the trial judge and this point was specifically made in the judgment of this court when dismissing the appeals of the appellants. 21. There was clear evidence of the conspiracy as charged. The two appellants were supervising the Bay View Police Division. The station sergeants controlled the collectors who actually received payment from the stall holders who were to be given police protection. And some of the money thus collected and paid was traced to certain bank accounts controlled by the two appellants. From the evidence the only inference that can be drawn is that the appellants knew of and participated in the conspiracy. 22. For these reasons this appeal must be dismissed.
Representation: Scrivener, Q.C. & P. Chan (Hampton, Winter & Glynn) for appellants. M. Lucas for crown. |