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CACC000470/1992
IN THE COURT OF APPEAL
1992, No. 470
(Criminal)
HEADNOTE
Co-conspirator's rule - independent evidence in support of a co-conspirator's words and acts in furtherance of conspiracy - foundation evidence to be laid - for judge and not jury to decide on admissibility - standard of proof required - statements and acts done prior to the accused joining the conspiracy
Lies as corroboration
IN THE COURT OF APPEAL
1992, No. 470
(Criminal)
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ALICK AU SHUI YUEN |
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Coram: Hon Yang CJ, Bokhary JA, and Mayo J
Dates of hearing: 7 and 8 September 1993
Date of judgment: 29 September 1993
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J U D G M E N T
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Hon Yang, CJ:
1. After a trial which lasted some two and a half months, the applicant (the first accused) was unanimously convicted by the jury of conspiracy to pervert the course of justice in Hong Kong, contrary to Common Law. He was sentenced to imprisonment for four years.
2. He seeks leave to appeal against conviction and sentence.
3. The Particulars of Offence reads: -
" Alick AU Shui-yuen, KWOK Chi-wai, YAU Kwok-wah, LEUNG Wood-mo, Alan and TSANG Hing-wa, Mathew between the 27th day of October 1989 and the 30th day of March 1990, did conspire with each other and with others including Charles Warwick REID, Eddie SOH Chee-kong, George YEUNG and Michael CHAN and others unknown to pervert the course of justice in Hong Kong by assisting Charles Warwick REID to impede or prevent the lawful arrest and prosecution in Hong Kong of the said Charles Warwick REID with the knowledge that the said Charles Warwick REID was wanted in respect of suspected criminal offences."
4. At the outset in his summing up, the learned trial judge told the jury that, apart from Reid's evidence, there was no direct evidence of the conspiracy. He also stressed that Reid was an accomplice in the conspiracy.
Summary of Reid's Evidence
5. Briefly, what the judge told the jury is as follows.
6. Reid was a Crown Counsel wanted by the authorities for corruption. There were discussions between him and his friends (including Eddie Soh, named as a co-conspirator in the Indictment) for the purpose of effecting his escape to the Philippines. For about ten days at the end of 1989, he was accommodated at a flat in Shatin. The flat had been rented by the applicant from July 1984 to July 1988. Later the applicant proposed that Michael Chan (named as a co-conspirator in the Indictment) should take over the tenancy. Michael Chan, then, was the tenant of the flat when Reid went there on 21 December 1989 for his short stay.
7. In the course of Reid's stay in the flat, Michael Chan told him that the applicant and George Yeung (also named as a co-conspirator in the Indictment) were helping to arrange his departure by boat from Hong Kong. The judge's direction on this piece of evidence forms the subject matter of Ground 1(a) - (d) of the Appeal under the heading of "The Co-conspirator's Rule". We shall return to this subject below.
8. Reid gave a description of how on 30 December 1989 he arrived in Macau and was met by Mathew Tsang (the fifth accused). They then took a taxi to the Mandarin Oriental Hotel. Later that evening they went to the Skylight in the Presidente Hotel where they met George Yeung, Alan Leung (the fourth accused) and the applicant. He was greeted with a round of applause and was introduced as "John". He then moved to the Hotel Presidente as he felt unsafe at the Mandarin Oriental.
9. On the following day, i.e., 31 December 1989, the applicant, George Yeung, Mathew Tsang and Alan Leung came to his room and they discussed his leaving Macau for the Philippines. Reid said the applicant indicated that he had another route through Hainan Island which cost three to four hundred thousand dollars and involved the provision of a passport.
10. Two or three days later, Reid told the applicant and Michael Chan that he had asked his wife to obtain her brother's passport, called the Brake passport at the trial, after his brother-in-law's surname.
11. Reid's evidence was that the applicant and "everyone" knew who he was. He said that the applicant apologised for the mess in the plans. He related some of the personal details he said he had learned about the applicant in conversations with him. Reid also discussed with the applicant and George Yeung his concerns about a charge under Section 10 of the Prevention of Bribery Ordinance. He joked with the applicant about his own Legal Department card and the applicant's police warrant card ( - the applicant being an auxiliary policeman).
12. In early January 1990, the agreed plan was that he would go to Weizhou in China. The applicant indicated to him that YAU Kwok-wah (the third accused), who was someone from a syndicate, would help him in his escape. The upshot was that Reid, Michael Chan and the third accused arrived in Guangzhou by car, and then they were driven to the West Lake Hotel in Weizhou. There Reid saw and spoke to the applicant, who was also staying at the same hotel with George Yeung at one stage. This would be on 6 January 1990. Throughout his stay at the hotel, he, Michael Chan, George Yeung and the applicant discussed the passport question. He mentioned two of his former colleagues in the Legal Department, Egan and Cahill. He spoke about Cahill giving his passport to Egan, who was to deliver it to the applicant. He told the applicant about Egan's earlier offer of his own passport and the pen-gun, so that the applicant would be confident of Egan's reliability. Reid said that he had telephoned Cahill who refused, and that he could not reach Egan on the telephone.
13. In mid-January 1990, the Brake passport arrived in China. The applicant saw it and said it was useless as it had not been used in China.
14. Whilst still in China, either the applicant or George Yeung showed Reid a newspaper article about his escape. According to Reid, as the situation was constantly changing, the applicant suggested going through Guangzhou Airport ("the Baiyun Airport") with a forged passport he had been given earlier. The forged passport bore Reid's photograph taken in China but was in the name of CHEUNG Wing-kin. The applicant said he had a contact in Guangzhou in Immigration.
15. Still in mid-January 1990, Reid, Michael Chan, the third accused and the driver left the West Lake Hotel and went to a large hotel in Guangzhou. The applicant joined him later the same day and they had more than one discussion about money, particularly the payment to the syndicate for his departure from Guangzhou. There was also discussion of a contingency plan between Reid and the applicant in the event that there was trouble at the Baryon Airport. Their plan was for Reid and the applicant to go to the Philippines from Guangzhou. In the event, Reid's forged visa was discovered at the Baryon Airport and they had to go to the Philippines via Hong Kong.
16. There is no dispute that Reid and the applicant spent the night on 16 January 1990 in Guangzhou in the same hotel room, i.e., in Room 1425 of the China Hotel. There were four telephone calls made from Room 1425 to Manila, two on the 16th and two on the 17th. The applicant said in evidence that Reid told him he had made the calls, but Reid denied this, saying that the applicant made several calls from that room but spoke in Chinese.
17. Reid and the applicant were to fly to Manila via Hong Kong on 17 January 1990. The applicant told Reid he would contact his office in Hong Kong to arrange for them to transit in Hong Kong and to board a flight for the Philippines. Reid also said the applicant was in touch with the man they met in the coffee shop in Guangzhou, who was to change their air tickets and arrange their flight from Guangzhou to Hong Kong. The applicant, however, said in evidence that the man in the coffee shop was Reid's contact and not his. It would appear that these arrangements were made on the 16th.
18. On the 17th, the applicant and Reid flew to Hong Kong, sitting next to each other. In Hong Kong, the applicant alone collected the tickets for Manila at the transit counter: the applicant's evidence, however, was that he and Reid collected the tickets together.
19. In Manila Reid and the applicant were met by George Yeung and one Toby Lok, and they all went to the Plaza Hotel. According to Reid, the applicant told him later that he had to pay an agreed fee to the man who had facilitated their entries into the Philippines. The applicant's evidence was his movements in Manila were unconnected with Reid.
20. Reid also recalled a discussion with the applicant and George Yeung about the knowledge which the Independent Commission Against Corruption ("ICAC") had of the fact that the Brake passport had been delivered by DHL to Michael Chan's office.
21. Under cross-examination Reid admitted that he was corrupt, unscrupulous and dishonest, and the judge warned the jury of the dangers of his evidence, both as an accomplice and as a man with "an appalling record of corruption and deceit". Reid also said that the applicant and George Yeung had taken $1 million to fund his escape, but they both said they had not profited.
Defence Case
22. The thrust of the defence case was that his activities and movements were innocent and, at the material time, he did not know who Reid was. He did not, however, dispute the bulk of the prosecution case. He denied that part of Reid's evidence which implicated him and alleged fabrication. Having summarised the applicant's evidence, the judge properly warned the jury that the prosecution case against the accused stood or fell with Reid's evidence.
Evidence Capable of Corroborating Reid's Evidence
23. Finally, the judge dealt with the issue of corroboration which forms the subject of Ground 2(a) - (g) of the Appeal under the heading of "Corroboration".
24. The judge explained to the jury the individual items of evidence which are capable of corroborating Reid's evidence. There are seven items mentioned.
25. Firstly, the West Lake Hotel records for 6 January 1990 shows that Michael Chan, the third accused, and the applicant were registered into Rooms 619, 620 and 912 respectively. The applicant agreed that he paid for all these rooms for that night. The judge in his summing up told the jury that, if they found that Michael Chan was a member of the conspiracy, then the applicant's payment for his room was capable of corroborating Reid's evidence against the applicant by showing concerted activity between the applicant and Michael Chan.
26. Secondly, there was evidence that, on 15 January 1990, the applicant booked into Room 1216 of the China Hotel at Guangzhou. Michael Chan booked into Room 1208 and the third accused into Room 1209. The applicant said he saw Reid at the hotel. The way this item might corroborate Reid's evidence is dealt with below.
27. Thirdly, a credit balance from Room 1208 was transferred to the applicant's bill for Room 1216 which he settled on the 16th. A debit balance from Room 1209 was transferred to the applicant's account also. The applicant agreed that the hotel would not have made these transfers without being asked to do so, but he insisted that these transfers were made without his knowledge. Again the judge told the jury that, if they found Michael Chan to be a member of the conspiracy, then the evidence of credit transfer between Michael Chan and the applicant was capable of corroborating Reid's evidence against the applicant. It was capable of doing so by showing concerted activity between the applicant and Michael Chan at a time when Reid was also seen at the hotel.
28. And if again the jury found that the third accused was a member of the conspiracy, then the evidence of the debit transfer between his account and the applicant's account was also corroborating Reid's evidence against the applicant, by showing concerted activity between the applicant and the third accused at a time when Reid was seen in the hotel.
29. Fourthly, on 16 January 1990, the applicant and Reid checked into the China Hotel at Guangzhou and shared Room 1425 together. The applicant paid for the room. The judge told the jury that this evidence was capable of corroborating Reid's evidence against the applicant, in that it showed concerted activity between the two men in close proximity.
30. At this point of the summing up, the judge warned the jury that the evidence of concerted action between the applicant and Michael Chan and between the applicant and the third accused was not capable of corroborating Reid's evidence of the applicant's guilty knowledge, merely of concerted activity. However, the evidence of the applicant and Reid sharing Room 1425 was capable of corroborating Reid's evidence against the applicant by showing that the applicant's knowledge that Reid was a fugitive, and that the applicant was assisting Reid by sharing the room and paying for it.
31. The fifth item of evidence was his payment for Reid's flight from Hong Kong to Manila and return. He never sought reimbursement from Reid or anyone. No attempt was made to claim a refund from the airline for the unused return leg of the journey. This evidence, the judge told the jury, was capable of corroborating Reid's evidence against the applicant by showing that they were acting in concert, and by showing the applicant's guilty knowledge insofar as it showed the applicant actively assisting Reid by purchasing his flight ticket.
32. The sixth item concerns the applicant's written statement to the authorities at the Baiyun Airport (exhibited as WKC-3). Both the applicant and Reid were interrogated in respect of Reid's forged visa. The statement was that the applicant met "John" at the coffee shop at the airport and John said he was also going to Manila, so he "stayed together for the same flight". It was argued that the applicant thus made a false statement in that it did not divulge all the facts of the applicant's acquaintance with "John", nor that they were travelling together. The judge said that this statement was deliberately misleading to the authorities and it contained lies. He went on to say: -
" A lie is capable of amounting to corroboration whether told in court or out of court if it fulfils three tests: (1) it must have been deliberate, and this lie was obviously deliberate; (2) it must be clearly shown to be a lie, and Alick AU said he was economical with the truth and the statement is anyway inconsistent with his own evidence of his acquaintance with REID up to that time; (3) the defendant must have lied because he realised he was guilty and feared the truth coming out. People tell lies for all sorts of reasons other than out of guilt, for example, to bolster a true story, or for reasons of personal privacy."
33. And then, envisaging the possible argument that the applicant was attempting to dissociate himself from Reid because of the forged visa, the judge said: -
" It is up to you, but you may feel that with the lies in this statement Alick AU may have had good reason to distance himself from Reid, whether or not he knew who or what Reid was."
34. On the other hand, the applicant described his own statement as "economical with the truth".
35. The seventh item is the evidence that the applicant and Reid were seated next to each other on the two flights, viz., from Guangzhou to Hong Kong, and from Hong Kong to Manila. Reid was travailing under the name of CHEUNG Wing-kin. At Hong Kong, the applicant collected the tickets for their onward journey to Manila in the transit area. The applicant accepted in his evidence that he and Reid sat together on those two flights. The judge directed the jury that this evidence was capable of corroborating Reid's evidence against the applicant by showing that they were acting in concert at the time of Reid's escape. The applicant, however, denied any knowledge as to who Reid was or what the purpose of Reid's journey was. Au's evidence was that he did not know who Reid was, nor Reid's status as a fugitive until Reid was brought back to Hong Kong on 30 March 1990, and he was shocked.
What Michael Chan told Reid at Shatin
36. Before examining the Grounds of Appeal more closely, it is necessary here to refer to the judge's direction to the jury on the evidence of what Michael Chan had told Reid in the Shatin flat; it was that the applicant and George Yeung were helping to arrange his (Reid's) escape from Hong Kong by boat. It was in the context of this evidence that the judge explained to the jury what "the co-conspirator's rule" meant. He said: -
" Before, however, you may consider it as being admissible against Alick AU, you must find that there is some evidence overall both that the conspiracy as charged existed and that Alick AU was implicated in it. This need not at this stage be conclusive evidence on those two points, but there should at least be some evidence on those two points which you find merits your consideration.
Once you decide that there is such, what I may call, 'Threshold evidence', both of the conspiracy and of Alick AU's involvement in it, then Michael CHAN's statement about Alick AU, as testified by Reid, may be admissible against AU if you find that Michael CHAN was a co-conspirator and that what he said was said in furtherance of the conspiracy."
37. Then he went on to explain that what Michael Chan said must be pursuant to future arrangements conspired towards and not merely a recounting of past events, nor relating to matters not concerning the conspiracy.
38. He went on to say: -
" The purpose of this co-conspirator's rule is to enable the jury to consider as an overall picture what the Crown claims to be the evidence of the conspiracy. But you may not consider this evidence of co-conspirator's acts or declarations in furtherance of the conspiracy if that is the only evidence against an accused. That is why I have said that you must make a preliminary or threshold finding that there is at least some other evidence against Alick AU implicating him in the conspiracy and some other evidence that the conspiracy itself existed."
The Two Grounds of Appeal
39. We now come to the Grounds of Appeal against Conviction.
40. As has been indicated, the first Ground comes under the heading of "The Co-conspirator's Rule". It is argued here that the judge erred in leaving to the jury to decide whether there was independent evidence of participation of the applicant in an illegal combination sufficient to let in against him the statement of Michael Chan about the applicant, as testified by Reid. Next, the judge erred in directing the jury that they could find that there was "threshold evidence", which would activate the co-conspirator's rule against the applicant, if they concluded that there was "some evidence" that the applicant and Michael Chan participated in the conspiracy. The third point is that that evidence was inadmissible, and the final point made here is that the judge's directions were "confusing and intrinsically unsuitable in a jury trial".
41. The second Ground comes under the heading of "Corroboration". Seven complaints are made here, namely: -
(a) The direction on lies is partly based on R. v. Lucas [1981] 1 QB 720, which is said to be incorrectly decided.
(b) The judge was wrong in saying the applicant's lie was deliberate.
(c) The judge failed to explain the materiality of the alleged lie.
(d) The judge was wrong in saying the evidence that the applicant paid for the shared room in the China Hotel on 16 January 1990 was capable of corroborating Reid's evidence that the applicant knew Reid was a fugitive.
(e) The judge failed to stress that the essential aspect of Reid's evidence which required corroboration was his allegation of the applicant's knowledge of his true circumstances.
(f) The items suggested as being capable of corroboration of Reid's evidence depended in part on their being proof of a conspiracy involving Michael Chan, independent entirely of Reid's own evidence. There was no such sufficient proof, and the judge misdirected the jury as regards the first three items of evidence which the judge suggested was capable of being corroborative evidence (supra).
(g) he judge erred in not giving "a corroboration warning to the jury as to evidence of Michael Chan (as related by Reid)". It is argued here that a corroboration warning should be given in relation to the evidence of a named co-conspirator who is not on trial, whose evidence has been made admissible under the co-conspirator's rule.
The First Ground: Co-conspirator's Rule
42. Our research has not disclosed a wealth of authorities in England or Hong Kong, in spite of the fact that the rule has been used in the Courts for a very long time indeed. The most recent authority of importance seems to be the Australian case of Ahern v. R. (1988) 165 CLR 87, (1988) 37 A. Crim. R. 229. The only criticism comes from the Victorian decision of R. v. Pektas (1989) V R. 239, which argues that Ahern introduced "an altogether new and perhaps somewhat frightening departure from accepted practice in the criminal law": per Murphy J, at p.251. In Ahern, by a joint judgment of all judges sitting (Mason CJ, Wilson, Deane, Dawson and Toohey JJ), it was held that the judge ought to decide for himself whether there was independent evidence of the participation of the accused in the illegal combination sufficient to let in against him evidence of the acts and declarations of the other participants in further proof of that participation; the question ought not be left to the jury. The following passage in Triboldi v. The Queen (1961) 104 Cr. L.R. 1, at p.7 was cited with approval: -
"When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case."
43. The learned Chief Justice and the other judges then went on to discuss what "reasonable evidence" meant. They referred to Sec. 10 of the Indian Evidence Act of 1872 which provides: -
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done, or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
44. And noting that the 1872 Act was drafted by Stephen, the learned judges observed that the term "prima facie grounds" was used by Stephen in Art. 4 of his Digest of the Law of Evidence (1876), where he said (at p.6): -
"When two or more persons conspire together to commit any offence or actionable wrong, everything said, done, or written by any one of them in the execution or furtherance of their common purpose, is deemed to be so said, done, or written by every one, and is a relevant fact as against each of them .... Evidence of acts relevant under this article may not be given until the judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy."
45. The issue of what constituted reasonable evidence has exercised the Courts in several Common Law jurisdictions. In the United States of America, varying standards have been applied. They include "substantial independent evidence", "a prima facie case" and "proof of a conspiracy by a preponderance of evidence". In Canada, the requirement is that a "probability" is raised. In New Zealand, "reasonable evidence of common intention" has been adopted. In R. v. Buckton (1985) 2 NZLR 257, it was held by a majority that reasonable evidence is the equivalent of proof on the balance of probabilities. The judges in Ahern saw very little difference, if any, between "reasonable evidence" and a "prima facie case", and preferred the first terminology: see pp.98 - 100.
46. In R. v. Au Hang, Criminal Appeal No. 399 of 1987 (unreported), a decision of this Court, Penlington JA, delivering the judgment of the Court, described the test by the use of this formula: "Balance of probabilities, i.e., it must be more than a mere possibility". That does not portray the concept of a balance of probabilities in the ordinary sense. So there is no authority which binds this Court to a balance of probabilities test.
47. The application of the standard of "balance of probabilities" may in our view present difficulties. This is a concept normally associated with the final determination of a case, after weighing (on balance) both the evidence for one party and that for the other. "Prima facie case" seems to us to be preferable because it does not imply a final determination. It is also preferable to "reasonable evidence" because it is precise and readily understood and applicable.
48. In applying the prima facie case test, we would state the co-conspirator's rule thus - Before the evidence of the words and acts of the accused's co-conspirators, done in furtherance of the conspiracy, is admissible against the accused, a foundation for its reception must be laid. This takes the form of independent evidence which links the accused to the conspiracy charged. This evidence must be independent in the sense that it is evidence other than that admissible only pursuant to the co-conspirator's rule (i.e., evidence of the co-conspirator's doings relied on for its hearsay value). This evidence must of course be admissible against the accused: see Gillies on The Law of Criminal Conspiracy, 2nd Ed., p.186. The requirement that the evidence must be independent is logical and needs no judicial authority to support it. As the words and acts of a co-conspirator may be hearsay evidence, some other evidence must be adduced to "shore up" the hearsay evidence, otherwise the hearsay evidence "would lift itself up by its own bootstraps to the level of competent evidence": see Glasser v. US (1942) 315 US 60 at 75, cited in Ahern (1988) 62 ALJR 440, at p.442.
49. The independent evidence in the present case, then, for the purpose of the co-conspirator's rule, might come from Reid's own mouth.
50. The next issue which has to be considered in respect of the rule is that the order of proof is flexible, and that the evidence of the co-conspirator's doing and saying may be against the accused in advance of independent evidence establishing the conspiracy and his implication in it: vide R. v. Murphy (1837) 8 Car. & P. 297; 173 ER 502.
51. That the co-conspirator's acts and statements must be in furtherance of the conspiracy is not in dispute. Nor is it a matter for argument that the co-conspirator's words and acts should be done during the currency of the conspiracy.
52. In this connection, we adopt the words of Dr Gillies (supra, at p.196): -
" Where A joins a conspiracy after its inception and/or leaves it prior to its termination, his or her alleged co-conspirator's words, etc, would be admissible against him or her pursuant to the co-conspirators rule even though these words were said or done prior to D's joining the conspiracy or subsequent to D's withdrawal from it. It is assumed in this situation that D is properly charged with the more extensive conspiracy, notwithstanding that D was privy to it for only a part of the time during which it was current."
53. In support of this proposition, we need refer to only two authorities. The first is R. v. Simington (1926) 45 CCC 249, which reproduces the summing up of Macdonald, J, to the jury at the British Columbia Supreme Court. The judge said (at pp.256 - 257): -
"Anyone concerned in the criminal parts of a transaction alleged as conspiracy may be found guilty although there is no evidence that such persons joined in concerting a plan or that they ever met the others; and it is probable they never did; and although some of them only join in the latter part of the transaction and probably did not enter the matter until some of the prior parts were complete - when two or more persons conspire together to do any actionable wrong anything said or written or done by any one of them in the execution or furtherance of their common purpose is deemed to be so written, said and done by either one of them and is deemed to be a relevant fact against each of them."
54. The next authority is R. v. Gouroff (1979) 1 A Crim R 307, decided in the Court of Criminal Appeal, Victoria. There O'Brien, J, said (at p.371): -
"The acts and words of Johansen, if done and spoken in furtherance of a common purpose, became the acts and words of each person who is found by the jury to be a conspirator at the relevant time. As other persons joined in the conspiracy and adopted the common purpose those acts and words are also attributable to the newcomers."
55. With respect, we apply these dicta as being in accord with good logic and common sense.
56. Coming more specifically to Ground 1(a) which argues that the judge should not have left to the jury to decide whether there was any independent evidence of the applicant's participation in the conspiracy. Clearly, in this case, that the jury was asked to consider the issue themselves cannot possibly occasion any miscarriage of justice. Admissibility was for the judge. On the question of admissibility, he had to decide whether there existed independent evidence of participation. He obviously (and justifiably) took the view that such evidence existed. His error lay in leaving it open to the jury to take a different view and to come to a different view on admissibility. That is not an error of which the applicant can make any effective complaint. It was one in his favour. All it did was to make him a present of the possibility that the jury would, to his advantage, usurp the judge's function.
57. As to Ground 1(b), the complaint is that the judge's direction that the jury must find "some evidence" was wrong. Reading the judge's summing up in its proper context, we cannot accept the argument advanced on behalf of the applicant that "some evidence" was too low a "threshold". Strictly speaking, the requirement for "some evidence", considered in isolation, may perhaps be considered to be less than the requirement for prima facie evidence, but in the present case, there was more than sufficient evidence for it to safely pass the prima facie evidence test. Such evidence came from Reid and records of the hotels where the co-conspirators stayed at, coupled with records of telephone calls made and records of their travels.
58. Ground 1(c) that the evidence was inadmissible is inconsistent with the stance defence counsel took at the trial, which was that he had "no argument" with the admission of the evidence subject to the jury being told that the jury must accept the evidence or not depending on their assessment of the witness Reid. Clearly the jury accepted Reid as a witness of truth.
59. It was further argued before us that there should have been evidence to show that the applicant and Michael Chan were both co-conspirators at the time when Michael Chan told Reid about the applicant at the flat in Shatin. There is no legal basis for this proposition as far as the evidence against the applicant is concerned.
60. There was evidence that Michael Chan's involvement with Reid dated at the latest from the time Reid moved into the Shatin flat. The direct evidence of the applicant's involvement with the conspiracy concerns events on 31 December or 1 January and thereafter. There was ample evidence, which we do not propose to detail, showing that both Michael Chan and the applicant were co-conspirators who actively engineered Reid's escape from Hong Kong. Such evidence could lead the jury to find, as a matter of common sense, and as the only inference reasonably possible, that both men were members of the conspiracy from late December 1989. The necessary foundation was laid.
61. On the applicant's own evidence, he was aware, from the media coverage, of Reid's disappearance from Hong Kong. On his own evidence, too, he knew that his European travelling companion at the Baiyun Airport had a forged passport bearing a Chinese name, and he was sceptical and anxious about this man.
62. News of Reid's disappearance broke on 30 December 1989 and the applicant saw the news. He had also heard from conversation in the legal profession that Oscar Lai and Eddie Soh had paid bribes to a Crown Counsel called Warwick Reid. But he did not associate the "John" he met in Macau with Reid. He subscribed to the South China Morning Post both at his home and his office, he could not therefore have failed to see the newspaper's reports of Reid's departure from Hong Kong in December and his return to Hong Kong from Manila on 30 March 1990.
63. The applicant said in evidence that he later realised, with shock, in April 1990 that John must have been the same man as Reid, but he failed to come forward to inform the authorities about his contact with John/Reid lest he became "a laughing stock" and brought scandal upon himself, his partner and his family.
64. The jury must have rejected the applicant's explanations in this regard and found that he knew who John was - not a surprising inference in our view.
65. Finally, Ground 1(d), that the judge's directions were confusing and intrinsically unsuitable, is not, in our judgment, tenable having regard to the careful and comprehensive summing up the trial judge delivered.
66. Ground 1 of the Appeal fails.
The Second Ground: Corroboration
67. The crucial point under this head is whether the applicant joined the conspiracy knowing that Reid was a fugitive from justice. It is mainly in the context of knowledge that the seven items (supra) advanced on behalf of the applicant in this Ground must be looked at. We now deal with these items in seriatim: -
(a) R. v. Lucas (1981) 1 QB 720 was followed by the Court of Appeal in Hong Kong in R. v. Au Yeung Chi-kwan (1991) Crim. App. No. 428 (unreported). In R. v. Heyde (1990) 20 NSWLR 234, it was held that the jury must be instructed that only if they are satisfied beyond reasonable doubt that the accused has told deliberate lies and that the inference should be drawn that his motive for doing so was a fear of the truth should they conclude that the lies provide affirmative support for the prosecution's case: per Clarke, JA, at p.246. There R. v. Lucas was also followed. The trial judge's direction (quoted above) in the present case is modelled on R. v. Lucas. It is a perfectly proper direction. This ground must fail.
(b) In describing the lie as deliberate, the judge was doing no more than expressing his own view which the jury had been told they could disregard. On the evidence this was the only conclusion the jury could draw.
(c) The learned judge made it plain that the materiality of the false statement would only arise if the jury were sure that the applicant told a lie "because he realised he was guilty and feared the truth coming out": see above.
The jury was also told, properly, that they might consider, individually or cumulatively, the separate pieces of evidence which may be corroborative against the accused. He said: -
"You may consider together certain pieces of evidence which I tell you are capable of [amounting to] corroboration against a particular accused. You may consider them cumulatively in deciding whether they amount to corroboration against that accused."
In other words, the jury were entitled to consider the applicant's untrue statement made to the Chinese authorities at the Baiyun Airport together with other evidence, such as his paying the bill for Room 1425 in which he stayed with Reid, and his paying for Reid's aeroplane return ticket for Hong Kong/Manila. Such evidence was capable of corroborating Reid's evidence as to the issue of the parties acting in concert and as to the issue of the applicant's knowledge of Reid's identity as a fugitive.
(d) There was ample other evidence, considered together with the evidence referred to here, which was capable of corroborating Reid's evidence as to the applicant's knowledge of his identity as a fugitive. There is no merit in this complaint.
(e) Counsel for the applicant submitted that there was no evidence, taken cumulatively or otherwise, which was capable of corroboration of Reid's evidence that the applicant had the requisite knowledge. Having regard to the summing up and the evidence of the applicant and the documentary evidence (i.e., hotel and telephone records, and Immigration Department records of the applicant's travel movements), this ground cannot stand.
(f) On the applicant's own evidence, as well as records of Michael Chan's travel movements and his staying in the same hotel at the same time as Reid, the jury was entitled to find that Michael Chan was a co-conspirator. There is nothing in this ground of appeal.
(g) There is no authority for the proposition made under this sub-head. The law on corroboration applies in relation to an accused, and we have not been referred to any decisions which suggest or imply that there should be corroboration in relation to an accomplice not even before the Court, e.g., Michael Chan.
68. Ground 2 must also fail.
Conclusion
69. The application for leave to appeal against conviction is refused.
70. We shall now hear submissions on the application for leave to appeal against sentence.
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( T L Yang ) |
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Chief Justice |
Representation:
Mr G J X McCoy & Mr J Hemmings (John M Pickavant & Co) for Applicant
Mr A Huggins QC and Mr Alfred Chan (Herbert Smith) assigned for Crown/Respondent
IN THE COURT OF APPEAL
1992, No. 470
(Criminal)
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ALICK AU SHUI YUEN |
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Coram: Hon Yang CJ, and Mayo J
Date of hearing: 29 September 1993
Date of judgment: 29 September 1993
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J U D G M E N T
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Hon Yang, CJ:
On Sentence
71. The applicant is 38 and has been in practice as a solicitor. Before the conviction he had been a man of good character and a Chief Inspector with the Hong Kong Auxiliary Police. It is his tragedy, and that of his family, friends and colleagues that he is now a ruined man.
72. It is said in mitigation that the offence was committed not in his position as an officer of the Court, and the person he sought to assist, i.e. Warwick Reid, was only wanted by the police for a Sec. 14 notice at the time. The gravity of Reid's crime did not surface until later. Nevertheless, the length the applicant was prepared to go in his attempt to assist in the escape of a high official in the Government, and the persistence with which he pursued the plan agreed on by the conspirators, cannot be overlooked.
73. By any account, this is a serious offence. It is right that, in passing sentence, the Court must not only consider the personal interest of the accused, but also the larger interest of the public. A sentence should be passed which reflects the abhorrence of the reasonably minded man in the street. The four years sentence is in our judgment a proper sentence in all the circumstances.
74. The application for leave to appeal against sentence is refused.
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( T L Yang ) |
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Chief Justice |
Representation:
Mr G J X McCoy & Mr J Hemmings (John M Pickavant & Co) for Applicant
Mr A Huggins QC and Mr Alfred Chan (Herbert Smith) assigned for Crown/Respondent
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