R. v. PUN SIT LEUNG and Another

IN THE COURT OF APPEAL

1996, No. 9
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The first applicant (A1) seeks leave to appeal against his convictions on three charges of handling stolen goods. He also seeks leave to appeal against the total sentence of two-and-a-half years' imprisonment which was imposed upon him.

2. The second applicant (A2) seeks leave to appeal against his convictions on two counts of handling stolen goods and two counts of theft.

3. The prosecution of this case was to a large extent dependent upon the evidence given by an accomplice Mr Tang who has already been convicted of offences arising out of the facts of this case.

4. He was a lorry driver. He gave evidence that he came to know A1 when on behalf of his employer he took an old lorry to him to sell as scrap. A1 had a business dealing in scrap goods. It was his practice amongst other things to cannibalise parts of vehicles sold to him to make them available to his brother who was in the motor trade in China.

5. Some time after the initial transaction which was a perfectly legitimate one Mr Tang asked A1 if he would be prepared to purchase scrap vehicles from him without requiring him to tender registration documents. A1 said that he was prepared to do so.

6. According to Mr Tang A1 had stipulated that on such transactions it was necessary for the vehicle to be delivered to his yard in the morning because such vehicles were "time bombs waiting to explode".

7. Mr Tang gave evidence that he also invited A2 to join in the arrangements. His role was to supply suitable vehicles which were ripe for scrapping.

8. The modus operandi was that A2 would advise Mr Tang when a vehicle was available. Mr Tang would drive it to A1's yard and sell it. The proceeds of sale would then be divided between himself and A2. It was evident when Mr Tang took delivery of the lorries that the ignition system had been tampered with.

9. There were three transactions which were the subject of these charges. There was also a further theft charge laid against A2. This related to the alleged theft of a licence disc relating to one of the vehicles.

10. Besides the evidence of Mr Tang there were also admissions made in statements made by both applicants.

11. Notwithstanding the fact that the admissibility of these statements was contested on the ground that they were not voluntary statements the judge was satisfied that they were freely and voluntarily made and admitted them as evidence.

12. So far as A1 was concerned the greater part of his statement was of an exculpatory nature. He denied that he had stolen the vehicles. He claimed that he had proceeded upon the basis that they were legitimate transactions. He did however admit that he was aware that at least one of the vehicles had been stolen. He later claimed that the police officer who had taken this statement had fabricated this evidence.

13. The only admission made by A2 was the theft of the licence disc. He had only admitted this after being told that his fingerprints had been lifted on the disc.

14. At the trial before Her Honour Judge Chua the main line of defence run by both applicants was that Mr Tang had been the initiator of the whole scheme and that their participation had been innocent. A1 claimed to have had no knowledge that the vehicles had been stolen. He suggested that Mr Tang's motive for testifying against him was to attempt to obtain a reduction in the term of imprisonment he was presently serving.

15. A2 claimed that Mr Tang had been actuated by personal malice against him. He suggested that because he had provided information to the police in respect of one of Mr Tang's previous transgressions and that this had led to his conviction for an offence he was attempting to incriminate him.

16. In lengthy Reasons for Verdict Chua DJ gives detailed reasons for accepting the testimony of Mr Tang and rejecting the testimony of both applicants.

17. There is one main perfected ground of appeal lodged on behalf of A1. It is as follows:

"1. The trial Judge erred in law and wrongly failed to deal with the issue of corroboration in respect of the evidence of Tang Kit-ming (PW1) in a proper or safe and satisfactory manner.

Particulars

(1) The trial Judge decided that she would warn herself on the dangers of convicting a defendant upon the uncorroborated evidence of an accomplice namely Tang Kit-ming (transcript 21N - 22C);

(2) Having so decided the trial Judge then completely failed to deal with the said issue of corroboration in respect of the 1st Appellant though the trial Judge did so in respect of the case against So Wing-cheung (transcript 27 E-G);

(3) Thereby the questions of whether there was evidence which in law properly amounted to corroboration and/or whether or not the trial Judge used such or whether she in fact used irrelevant material as corroboration were left completely unresolved and unanswered."

18. The simple answer to this is that it was not necessary for Mr Tang's evidence to be corroborated. Accordingly it was not necessary to define what evidence did or did not amount to corroboration.

19. What is required in jury trials is referred to in R. v. Makaujouler [1995]1 WLR 1348. If this is transposed to what is required of a professionally qualified District Judge it is clear that the judge did more than satisfy these requirements:

* If the Reasons for Verdict are read as a whole it is manifest that the judge was indeed mindful of the fact that Mr Tang was an accomplice and that his evidence had to be treated with great caution.

* We think it appropriate to remark that as it is no longer necessary in law to look for corroboration of accomplice evidence the sooner that term is dropped from the legal lexicon when referring to accomplice evidence the better. If a judge considers that he should exercise caution before accepting the evidence of an accomplice or any witness it would be much better for him to say just that and to avoid the use of any term which it might be suggested raises the now banished spectre of corroboration.

20. More specifically it is clear that the judge did consider the only evidence which could have amounted to corroboration namely the contents of the cautioned statement. It is evident that the judge accepted some inculpatory parts of the statement in which A1 admitted that he was aware of the fact that for example a vehicle registration mark EE 4396 but in fact EJ 2334 had been stolen. When this admission is taken in conjunction with the other matters referred to in the statement there was ample evidence that A1 had handled stolen goods.

21. It is also correct to state that District Judges are not required to condescend to particularity as to how they resolve issues such as those raised in these grounds of appeal.

22. So far as A1 is concerned these convictions are in no way unsafe or unsatisfactory and the application for leave to appeal against the conviction is dismissed.

23. In his home-made grounds A2 states that there were doubts concerning the case and that the accomplice's evidence was unreliable and actuated by malice. Besides his evidence there was no evidence against him. He also claimed that the judge was biased.

24. Before us A2 complained the judge had emphasized the necessity for corroboration but notwithstanding this she had convicted him.

25. All of these matters were put before the trial judge. These convictions of A2 are also in no way unsafe or unsatisfactory and the application for leave to appeal against the convictions is dismissed.

26. So far as the A1's application for leave to appeal against the sentences imposed upon him we have already dealt with the facts of the case in some detail. These were quite serious offences. In this case there was a series of transactions over a period of time. Even taking into account his role where he was not the main instigator and the fact of his clear record the sentences were well within the proper range. We can see no justification to interfere with them. The applications are dismissed.