THE QUEEN v. WONG TAK KEI

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Headnote

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Criminal Law and procedure - accomplice warning - magistrate, where no legal requirement for corroboration, finding evidence capable of amounting to corroboration did not sufficiently evaluate credibility, and failed to consider need to give himself accomplice warning. Indication that conviction depended on corroboration. Conviction quashed, retrial ordered.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 988 of 1986

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BETWEEN

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Reasons for decision

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1. On the 17th October 1986 I allowed this appeal and said that I would later give reasons, which I now do.

2. Wong Tak Kei (the appellant) appeared before a magistrate charged with two offences as follows :

3. The person allegedly induced to become a member of the unlawful society (the Wo Hop To Triad Society) was a fifteen year old girl, who was also the alleged victim of indecent assault. I shall refer to her as PW1.

4. The magistrate acquitted the appellant on the charge of indecent assault but convicted him of inducing PW1 to become a member of an unlawful society. He accepted the evidence of PW1 as truthful, and described it in his statement of findings as explicit and convincing. In the absence of any evidence of recent complaint and of any evidence to corroborate PW1's allegation of indecent assault, the magistrate said whilst I accepted PW1 as a witness of truth I had to recognise practical effect of the proper warnings a jury would receive and therefore sitting as a jury I allowed the Appellant the benefit of the Warnings". Nevertheless, in relation to the first charge, he said : "On the prosecution evidence I was satisfied beyond reasonable doubt that each and every element of the charge A had been proved. Further I warned myself in respect of the age of PW1 and of the practical need for corroboration. I found such corroboration in the evidence of PW3". . The person described as PW3 Was one TSOI Wai keung.

5. On the basis of substituted grounds of appeal, counsel for the appellant argued that, having determined that the evidence of PW1 needed corroborating before it could be acted upon, the magistrate erred in finding the evidence of PW3 to be corroborative on without adverting to or having regard to the fact that PW3 was an accomplice in the offence charged and to the dangers inherent in relying on such evidence. An alternative ground was that even if in law PW3 was not to be regarded as an accomplice, nevertheless the magistrate ought to have warned himself of the dangers of relying upon his evidence, because the witness had a motive for giving false evidence. Counsel pointed out that PW1 had testified that PW3 was her former boyfriend and that PW3 as well as the appellant had previously claimed to be a member of the Wo Hop To Triad Society. PW3 had been present with PW1 and the appellant when the appellant had allegedly induced PW1 to join the Wo Hop To. In those circumstances, submitted counsel for the appellant, PW3 was lending support by his presence to what was going on. That made him an accomplice. The magistrate should have warned himself explicitly of the dangers of acting on the evidence of an accomplice. Counsel further submitted that even if in law PW3 were not an accomplice, the evidence indicated that he had a motive for lying. When he was asked in cross-examination :

                    "Were you aware of anyone including yourself of asking (PW1) to follow you?"he claimed privilege against self-incrimination and refused to answer.

6. PW3 himself testified that he had been PW1's boyfriend until after the incidents giving rise to the charges.

7. It was also apparent from the evidence that PW1 had been beaten up on the 22nd May whilst on her way to school. She had been told that the appellant was connected with the beating and she suspected that it was so. She had reported the beating on the day it happened but it was not until six days later, on the 28th, that she first reported the alleged indecent assault of the 19th May, and presumably the inducing of the 12th May.

8. The magistrate was apparently impressed by the fact that PW1 could recite three sentences of a poem which she said was connected with Wo Hop To. He said. of PW1 in his statement of findings :

                    "She was explicit and convincing particularly when called upon to recall the Wo Hop To poems taught to her by the Appellant." Counsel pointed out that the evidence about the Triad poem related to a meeting on 17th May. The evidence was that PW3 was not at that meeting so the evidence of that meeting was not corroborated. Moreover in chief PW1 after speaking of various things said to her about the Triad Society on the 12th May, vas asked "was it first time you heard things like that?" and she replied "correct". In cross-examination, however, she was asked:

                    "Before you met defendant did you have knowledge of Triad words disciple etc.?" Her reply was . Yes, I have heard of those things before but I have little knowledge of that."

9. The only analysis of PW3's credibility is in the first page of the statement of findings where the magistrate says "He was basically a reluctant witness".

10. Counsel for the appellant submitted that the magistrate should have directed his mind to the various matters which bore upon the question of PW3's credibility and that there was nothing to indicate in his statement of findings that he had done so. The magistrate had made it clear that he was not prepared to convict in the absence of corroboration and the question of the credibility of PW3 was vital.

11. Counsel appearing for the Crown at the appeal pointed out that the magistrate was overgenerous in looking for corroboration, which was not a legal requirement. He would have been entitled to convict without it.

12. It is correct that in law no corroboration was required for PW1's evidence. The magistrate's statement of findings, however, strongly suggests that he was not prepared to convict without corroboration. Had he said that he would have been prepared to convict on the uncorroborated evidence of PW1, the appellant would be in a much more difficult position. I could not assume that the magistrate would have convicted on the evidence of PW1 alone. In the circumstances, his assessment of PW3's credibility was vital. There were aspects of the relationship between PW1, PW3 and the appellant which raised serious questions as to the motivation not only of PW3 but also of PW1. PW3 was on the evidence in a position to teach PW1 the Triad expressions which so impressed the magistrate. PW3 should have been treated as an accomplice. The magistrate should have warned himself of the dangers of accepting PW3's evidence. There was nothing to indicate that he did so. It is not enough that evidence is capable of providing corroboration it must also be found to be credible.

13. The magistrate did not appear to have directed himself as fully as he should have done. In the circumstances I found that the conviction was unsafe and must be set aside. The sentence must fall with the conviction.

14. Counsel for the appellant properly said that he could not oppose an order for a retrial. I considered that the interests of justice required it.

15. For these reasons I set aside the conviction and sentence and ordered a retrial before a different magistrate.