Au-yeung Fai and Others v. The Queen
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CACC001260/1976
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 31st January 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. On 16th November 1977 we allowed the appeal of the 2nd Appellant against his conviction and said that we would give our reasons later. He was tried in the District Court on two charges of conspiracy. There was no charge of any substantive offence, although there can be no doubt, if the evidence of the prosecution witnesses was to be believed, that he was guilty of an offence under s.3 of the Prevention of Bribery Ordinance. Although he was acquitted on one of the two conspiracy charges, we cannot but doubt the propriety of laying both those charges together in the first place and we hope such a thing will not happen again. 2. The particulars of the charge on which he was convicted were that the Appellant and his co-defendants
The only ground of appeal with which we are here concerned was in these terms:
For the purpose of considering this ground it is unnecessary to go into the evidence in detail and it is sufficient to outline very briefly the case presented to the judge. This Appellant was a sergeant of police at Wanchai Police Station at the material time. He admitted receiving various sums of money from two of his alleged co-conspirators: some of these he claimed to be by way of compensation for a missing uniform and payment of gambling windings but some, in amounts of $100 and $200, he said were paid to him without his knowing what they were for, although he knew it was wrong for him to receive them. Nevertheless his defence was that he was not proved to have been party to the alleged conspiracy. To establish his part in the conspiracy the prosecution relied inter alia upon evidence of a meeting at the New Hoover Restaurant between this Appellant, Sergeant Kwok (the first prosecution witness, who had originally been charged as the 9th defendant) and Lung Tim (the second prosecution witness, a hawker who admitted having collected corrupt moneys from other hawkers and paid them to police officers). Lung Tim's account of this meeting was that it was held in order that he, as paymaster, could be introduced by Sergeant Kwok to this Appellant upon the Appellant's taking over duty from Sergeant Kwok. This Appellant's case was that he was asked at the meeting to stop arresting a particular hawker but that he replied that he could do nothing about this. Thereafter, he said, the conversation turned to horse racing. It was common ground that at the end of the meeting this Appellant wrote on a piece of paper his own telephone number and the telephone number of his uncle and that this piece of paper passed eventually into the possession of Lung Tim. The prosecution maintained that the numbers were given to enable Lung Tim to contact this Appellant in connection with the alleged conspiracy, but this Appellant said that he wrote the numbers to enable Sergeant Kwok to contact him in relation to bets, that he placed the paper on the table and that Lung Tim must have picked up the paper from there. 3. The judge was not prepared to accept any part of the evidence of the two prosecution witnesses "unless it [was] properly corroborated" and the corroboration on which he relied was "[Lung Tim's] production of the paper with [the Appellant's] phone numbers on it". The argument of Mr. Jackson-Lipkin for this Appellant eventually took this form:
4. In relation to the first two steps in the argument it is essential to distinguish between regarding the accomplices as credible and believing their evidence. Common sense dictates that the existence of evidence which is capable of amounting to corroboration cannot affect the inherent credibility of a witness but will inevitably have a bearing on whether his evidence will in the event be believed and acted upon. Thus Lord Hailsham, L.C., said in Reg. v Kilbourne 1973 A.C. 729, 746 that the purpose of corroboration was to support "a witness who is otherwise to be believed". In the present case the learned judge said in his judgment (and it was indeed a judgment and not ex post facto reasons for verdict):
By reason of the opening words of the third paragraph and the use of a separate heading for the findings it appears as if the learned judge relied upon the alleged corroboration not only in deciding whether to "accept" (i.e. to believe) the evidence of the prosecution witnesses (despite the fact that they were accomplices), but also in deciding whether they were credible. That would clearly have been illogical. When he said at the end of the same paragraph that the accomplices' evidence was "correct", that was consistent with his having intended to say that the evidence was actually believed rather than that it was merely inherently credible, but if that be what he did mean he was not observing his own divisions under the headings "P.W.1's and P.W.2's credibility" and "Findings". It was because of our doubt whether the learned judge did properly apply his mind to the inherent credibility or incredibility of the accomplices - a matter which was of vital importance having regard to the nature of the evidence - that we felt constrained to conclude that the verdict in relation to the 2nd Appellant was unsafe and unsatisfactory. 31st January 1978. Representation:
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 31st January, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 5. I agree. Put simply, what was said in Reg. v. Kilbourne(1) and what this Court must reiterate is that corroboration must come from a source independent of that which initially persuaded the Court of the credibility of the accomplice evidence. There is a logical fallacy in deciding that a witness is believable because of, or partly because of, a particular piece of evidence and then, in the search for corroboration, using that same piece of evidence as corroboratory. The point was covered somewhat obliquely in Kilabourne where Lord Hailsham L.C. said:-
6. The point there being made was that before the Court even looks for corroboration the evidence in need thereof must itself be credible. It is a necessary corollary that evidence leading to the conclusion of credibility cannot be returned to for the purpose of corroborating that credibility - for evidence cannot corroborate itself. 7. In the present case the learned judge pressed the paper uapkin bearing telephone numbers into double duty for he said:
8. It is apparent from the second paragraph of that extract that the judge was relying to some extent upon the paper napkin in assessing the credibility of the first and second prosecution witnesses and equally apparent from the third paragraph that he also relied upon it for the purpose of corroboration. But it could not serve both purposes. As was conceded by the Crown this was a case in which corroboration was necessary. There being no true corroboration, that is sufficient to dispose of the appeal. 9. The learned Chief Justice has authorised me to say that he agrees with the judgments of the members of the Court. Representation: Jackson-Lipkin Q.C. and Miss M. Tam (D.L.A.) for 1st and 3rd Appellants. Jackson-Lipkin Q.C. and Miss M. Tam (W.S. Lo & Co.) for 2nd Appellant. Graham for Crown/Respondent. (1) 1973 A.C. 729 at 746 |