THE QUEEN v. LAI KIN SHING AND ANOTHER

    When directing a jury as to which evidence is capable of amounting to corroboration of the testimony of an accomplice (or any other witness on whose evidence it is dangerous to convict without corroboration) in a case where there is more than one accused or more than one count or both, the proper course for the judge to adopt is to deal with evidence that is capable of amounting to corroboration in respect of each accused on each count separately. Evidence which may corroborate the testimony of a suspect witness in respect of one count does not necessarily corroborate that testimony in respect of another count against the same accused or the same count or different counts against another accused.

    A global direction in respect of all accused on all counts is, at least, likely to confuse a jury and provides a fertile ground for appeals.

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JUDGMENT  OF  THE  COURT

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Macdougall, J.A.:

1. The applicants, who were the 1st and 2nd accused at trial, and three co-accused were tried before Deputy Judge Leonard, as he then was, and a jury on an indictment containing one count of robbery and one count of handling stolen goods. The robbery count related to the 2nd applicant and the three co-accused, but the 1st applicant alone stood trial on the handling count. Both applicants were convicted on their respective counts by majority verdicts of five to two and were sentenced to three and a half and ten years' imprisonment respectively. They now seek leave to appeal against both conviction and sentence.

2. The principal evidence which is relevant to this application was briefly as follows. The accomplice, a man named Fung, who had been given an immunity that was conditional upon him giving full and true evidence, testified that he together with the 2nd applicant and the 3rd and 4th accused had carried out a robbery at a godown of  the Michelle International Transport Company in Chai Wan in the course of which a number of valuable antiques were stolen and carried away in a van brought to the scene by the 2nd applicant. There was evidence from a Mr. Ngan that the 2nd applicant had borrowed his van on the day of the robbery. The role that was allegedly played by the remaining co-accused, the 5th accused, was that he had provided information which enabled the robbers to carry out the robbery.

3. Fung further testified that he had enlisted the services of the applicant to dispose of the antiques. To this end Fung together with the 1st applicant and the 1st applicant's wife attended at the office of a real estate agent where the 1st applicant paid the rental deposit for a flat to which the stolen goods were moved pending their disposal. Knowing that the owner was anxious to let it to a married couple, the 1st applicant brought his wife to the estate agent's office to pose as Fung's wife since it was in Fung's name that the flat was to be let.

4. A Miss Lee employed at the real estate company testified that it was Fung who had produced a wad of banknotes and that he had handed it to the 1st applicant who counted the money and then handed it to her. However the owner of the flat, a Mr. Hung, who was present at the relevant time, gave another version of the incident. He said that Fung had produced several thousand dollars but that it was not enough to meet the deposit of $20,100. The man accompanying Fung then made up the difference. The 1st applicant, who elected to give evidence, admitted that he had accompanied Fung to the estate agent's office but denied having paid any of the deposit money.

5. There was evidence that the police had intercepted the 1st applicant together with Fung and the 3rd accused as they were leaving the building in which the flat was situated. The 1st applicant was found to have on his person the keys to the flat and some photographs of some of the stolen goods. The three men were taken to the 5th floor where the 1st applicant, having been told by the police that they were prepared to search every flat in the building if necessary, led them to the flat on the 3rd floor where all the stolen goods were recovered

6. The 1st applicant sought to explain his involvement by testifying that Fung owed him approximately $50,000 and had offered to repay the loan and give him some commission by enlisting his services to find a buyer for some antiques that Fung said were "parallel goods" brought from China "to earn the difference in price". The thought not occurring to him that the antiques might have been stolen, the 1st applicant agreed to assist in their disposal. He conceded in cross-examination however that one or two hours before his arrest he had begun to wonder where Fung had had obtained two million dollars worth of antiques. Prior to that he had been busily engaged in taking measurements of them and had had no time to think about the matter.

7. Fingerprints of the 1st applicant were subsequently found in the flat on a Sotheby catalogue and a polythene bag containing a towel. The 2nd applicant's fingerprints were also found on the catalogue, the wooden door of the flat and a plastic bag and a brown paper bag both of which were found in the flat.

8. The fingerprints of the 3rd and 4th accused were found on the Sotheby catalogue, and the 4th accused's prints were found on other items in the flat.

9. Finally there was evidence that Fung's fingerprint and that of the 2nd applicant were found on a parking ticket issued at the parking building at which Fung testified that the 'van had been parked after the robbery had been committed.

10. The principal ground of appeal that was argued by Mr. Egan, who appeared for the 2nd applicant in this court but not in the court below, and was adopted by Mr. Marash, who appeared for the 1st applicant in this court only, was:

"    The learned trial Judge erred in law in that, having correctly directed the jury that it was dangerous [in this case] to convict on the uncorroborated evidence of an accomplice and having further as a matter of law correctly defined corroboration, he thereafter failed to identify, or failed sufficiently to identify, the evidence that was capable of amounting to corroboration in respect of each particular accused and in particular he failed to identify which particular piece of evidence was in law capable of amounting to corroboration in respect of which particular accused."

11. The direction which the judge gave the jury as to the evidence which he considered capable of amounting to corroboration was as follows:

"    Now the following evidence, if you accept it and depending on how you assess it, is capable of corroborating Fung Kwok-kuen's evidence against D2, 3, 4 and 5 in relation to the robbery count, and where applicable, his evidence against Dl on the handling count. First of all, there is the evidence of Mr. Ngan Lik-chung who told you about the hiring of the van, but in fact there is no dispute about that either now; secondly, the evidence of Miss Lee, the lady who worked at the estate agents, and of Mr. Hung, the landlord. They corroborate Fung Kwok-kuen's evidence about the renting of the flat, although I will have something to say about their evidence later because in part they contradict Fung Kwok-kuen.

    Next, you have the fingerprints of the 2nd accused on the parking ticket, the door of the flat and the receipt from the metal company. Then you have the evidence of the 1st accused himself 'as to his activities' and the evidence by the police of the finding on him of the keys and photographs. Then you have the finding of the prints of the other defendants on the articles in the flat to the extent that either they show that they touched stolen goods, or the container to stolen goods, or they were at the flat, but that is with the exception of the Sotheby's catalogue which I shall deal with separately.

    As I have said, there is the evidence of finding Fung Kwok-kuen's fingerprints on the parking ticket and his palmprints on various cartons, and that is evidence which is capable of corroborating Fung Kwok-kuen's evidence if you accept it and depending on what view you take of it, but as I have already said, fingerprints cannot speak, so although they are consistent with Fung Kwok-kuen's story, you also have to consider whether they are consistent with the explanations given by the defendants.

    Now I want to tell you specifically that the following matters of evidence are not in law capable of corroborating Fung Kwok-kuen's evidence:"

12. The judge then proceeded to refer the jury to various aspects of the evidence that are not relevant to this application. Having then told the jury that there was no evidence capable of corroborating Fung's testimony against the 5th accused, the judge continued:

"    With regard to the handling charge, some parts of Fung Kwok-kuen's evidence are undisputed and Dl's evidence, as I have told you, is capable of corroborating it, it is common ground that Dl was trying to dispose of the stolen goods shown in the eight photographs, Exhibit P.25, and it is agreed that Dl went to the estate agents with his wife to help Fung take the tenancy of the flat, and that he later went to view it. Likewise, it is common ground that on the 2nd of December he went to the flat with keys given to him by Fung Kwok-kuen together with D2 and D3, and they were all arrested when they came out, and the evidence of Madam Lee and Mr. Hung is capable of corroborating Fung Kwok-kuen's evidence that Dl. went to the estate agents.

    Now the following matters are in dispute: First, that the alleged robbers visited Dl at his home on the 15th of, November so that - I am sorry, that's - yes, that's right, that the alleged robbers visited D1 at his home on the 15th of November in order that Sai Keung could ask for a loan for the renting of the flat. Now there is no evidence capable of corroborating that.

    Second, Fung's evidence was that at the estate agent Ah Shing, that is D1, took twenty thousand dollars from his pocket and handed it to Miss Lee. Now Miss Lee said that it was Fung Kwok-kuen himself who produced the wad of notes and handed it to D1 who counted it and handed it over, and so there is a direct contradiction of Fung Kwok-kuen. Mr. Hung, on the other hand, said Fung produced a wad of notes but the money was not enough so the other man, who must have been. D1, also produced a wad of notes.

    That evidence of Mr. Hung, if you accept it, and depending on how you assess it, is capable of corroborating Fung's assertion that D1 handed over some money. But, of course, Fung Kwok-kuen said that D1 provided all the money. So the two versions don't match.

    D1, of course, denies providing any money at all. And in connection with that part of the evidence, you will recall that counsel for Dl has suggested to you that where they differ, Miss Lee is probably a more reliable witness than Mr. Hung. That is a matter entirely for you, of course."

13. Following this, the judge went on to refer to three other pieces of evidence, two of which he directed the jury were not capable of amounting to corroboration.

14. In our view this treatment of the evidence was likely to confuse the jury. Having told them initially that there was evidence which was capable of corroborating Fung's testimony against the 5th accused on the robbery count, the judge then went on to tell them that there was no such evidence. Secondly, he directed them that the testimony of Mr. Ngan concerning the hiring of the van and that of Miss Lee and Mr. Hung was capable of amounting to corroboration without specifying the accused person or persons or the count or counts to which it related. Where there is more than one accused or more than one count it is conventional to direct the jury as to the relevant evidence in respect of each accused separately on each count. The danger in taking the global approach adopted by the judge is that a jury is likely to think that a piece of evidence which is only capable of corroborating the accomplice's evidence in respect of one accused on one count is capable of corroborating his evidence against all accused on all counts.

15. Having told the jury that Mr. Ngan's testimony regarding the hiring of the van was capable of amounting to corroboration, the judge failed to direct them as to whom of the accused it related.

16. Moreover, we do not think that Mr. Ngan's testimony was capable of amounting to corroboration of Fung's evidence in respect of any of the accused. There was no independent evidence that the van which he lent, or indeed any van, was used in the robbery or in the transportation of the stolen goods to the flat in which they were found. But, even if his testimony had been capable of amounting to corroboration the jury should have been told which accused it affected. Although the judge initially told the jury that the evidence which he was about to mention was capable of corroborating Fung's testimony "where applicable, .... against D1 on the handling count", he failed to direct them where it was applicable. The jury were left to speculate in this regard.

17. In adopting this ground for the lst accused, Mr. Marash submitted that the judge's directions on corroboration were further flawed by the following passage in the summing up:

" As I have said, there is the evidence of finding Fung Kwok-kuen's fingerprints on the parking ticket and his palmprints on various cartons, and that is evidence which is capable of corroborating Fung Kwok-kuen's evidence if you accept it and depending on what view you take of it, but as I have already said, fingerprints cannot speak, so although they are consistent with Fung Kwok-kuen's story, you also have to consider whether they are consistent with the explanations given by the defendants."

18. Plainly, this was a misdirection. At best, the finding of Fung's fingerprints on the parking ticket and his palm prints on the cartons in the flat merely supported his testimony that he was involved in the commission of one or other of the two offences on which the applicants and their co-accused were standing trial. It was incapable of corroborating his testimony concerning the involvement of, the applicants or their co-accused in those offences for the simple reason that it did not tend to implicate them in the commission of either offence.

19. Clearly the jury were not prepared to convict on the evidence of Fung alone for they returned a verdict of not guilty in respect of the 5th accused after the judge had directed them there was no evidence to corroborate Fung's testimony as to his involvement in the robbery. They also returned verdicts of not guilty in favour of the 3rd and 4th accused. They did so despite the judge's opening remark that "the following evidence ..... is capable of corroborating Fung Kwok-kuen's testimony against D2, 3, 4 and 5 in relation to the robbery count". It is significant, however, that when he outlined the evidence that he said was capable of amounting to corroboration he made no reference whatever to the 4th accused. And, with respect to the 3rd accused, he merely told them what evidence was not capable of amounting to corroboration.

20. It seems likely therefore that the jury concluded that there was no evidence capable of corroborating Fung's testimony in respect of either of those two accused notwithstanding the judge's earlier general indication that there was evidence which had that quality. That they would have reached that conclusion was rendered more likely by the contradictory directions concerning the 5th accused. The only accused whom the judge specifically connected to evidence that he stated was capable of amounting to corroboration were the applicants. In view of the directions that the jury received, it is not surprising that they returned the verdicts that they did.

21. Taking into consideration, the judge's global direction concerning evidence that was capable of amounting to corroboration and the confusion that it was likely to have engendered; the fact that the testimony of Mr. Ngan was not capable of amounting to corroboration in respect of either applicant, and the misdirection that the evidence of Fung's fingerprints on the parking ticket and his palm prints on the cartons found in the flat was capable of corroborating his testimony, we have come to the conclusion that the convictions cannot stand.

22. We therefore grant the applications, and, treating the hearing as the hearing of the appeals, allow the appeals and set aside the sentences.

[Retrial ordered fhe 2nd applicant]