THE QUEEN v. LUK YIU-KWONG

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against a conviction for robbery. The Applicant was the second of two defendants tried together in the High Court before a judge sitting with a jury. Several points have been taken on his behalf, but only one has any substance and justifies mention in this judgment.

2. One of the witnesses called by the Prosecution was a man who was admitted to be an accomplice. He gave evidence implicating the 1st Defendant but, as regards the 2nd Defendant, appears not to have come up to proof: anyway, he testified that the 2nd Defendant was not one of the robbers. The judge proceeded to give a warning to the jury about the danger of acting upon the uncorroborated evidence of an accomplice. It is common ground that he was obliged so to do in relation to the 1st Defendant, but, in effect, the submission of Mr. Fenton is that such a warning should have taken the form of a caution against convicting on the uncorroborated evidence of an accomplice and that a distinction should have been drawn in relation to the 2nd Defendant to the effect that they could acquit on the evidence of the accomplice even in the absence of corroboration.

3. The rules concerning corroboration developed from the practice of the judges, whose experience showed that persons with a possible motive for giving false evidence were often unreliable. Such false evidence might, of course, be favourable or unfavourable to an accused: the danger, however, was present in all cases. Since the courts have always been jealous in protecting the innocent against wrongful conviction, where (as was almost invariably the case) the accomplice was called by the prosecution with a view to implicating an accused, the practice of giving a warning became a rule of law. We have not been referred to any case where that rule has been expressly applied in a case where the accomplice was called by the defence, though no doubt the self interest of the accomplice has always been drawn to the attention of the jury as a matter o?common sense. Where an accomplice has been called by the prosecution to give evidence against a single defendant and has then exculpated the defendant, the usual course is for the prosecution to obtain leave to treat the witness as hostile and thus destroy the weight of his evidence. That could not be done here, since the Prosecution continued to rely upon the accomplice's evidence against the 1st Defendant.

4. In Reg. v Peach (unreported: 14th January 1974) the Court of Appeal in England held that there was no obligation on the judge to give an "accomplice warning" where, on the trial of a single defendant, the witness not only failed to come up to proof but failed to give any evidence which was adverse to the defendant. His evidence does not appear to have been directly adverse to the prosecution. Lord Widgery, C. J. (who had been one of the judges in Reg. v Peach) explained that case in Reg. v Royce-Bentley 1974 1 W.L.R. 535 and, having pointed out the circumstances, said at p. 538C:

"In this court it was held that in those circumstances there was no obligation on the judge to give an accomplice warning, because the supposed accomplice having said nothing injurious to the defendant, there was no danger of the jury convicting on the evidence of that accomplice whether it was corroborated or not. In giving the judgment of the court, I said:

 

'But of course the real point here, and one only has to think about the case for a few minutes, is that if Griffin' - that is the accomplice - 'was not giving evidence adverse to the accused, the ordinary reason for giving a direction on accomplices and corroboration did not arise. The whole purpose of the well known requirement for directing juries in this sense in a criminal case is that one is normally concerned with an accomplice who has given adverse evidence. If there was no such evidence, then no such direction was necessary because the law does not require a direction on corroboration unless the evidence is adverse.' ''

 

5. It is, of course, accepted that there is no obligation to give a direction on corroboration where the evidence is not adverse: the question we have to decide is whether the judge has a discretion to do so. To a limited extent the evidence of the accomplice in Reg. v Royce-Bentley was favourable to the defence but, as here (although for a different reason), the prosecution still sought to put him forward as a witness of truth. In such a case, the Court held, there was a discretion and the judge should, after consulting counsel,

"consider whether on the whole, more harm to the defence would be done by giving the accomplice direction than by not giving it, and if he comes to the conclusion that on the whole more harm would be done in that way, then it is no irregularity on his part in the conduct of the trial if he decides not to give the accomplice direction." (P. 539A)

It is always open to a judge to point out that a witness may be lying out of self interest, so "the harm to the defence" which is there referred to would appear to be the prejudice resulting from saying that there was a rule of law that a warning had to be given that it was positively dangerous to act in any way on the evidence of an accomplice in the absence of corroboration. While it is as important that the guilty should be convicted as that the innocent should be acquitted, the law regards the possibility of a wrongful conviction as more serious than a wrongful acquittal and the "danger" therefore lies in acting upon the evidence of an accomplice to convict rather than to acquit. Indeed, the rule is properly stated in the form that there should be a warning that it is dangerous to "convict" on the evidence of an accomplice in the absence of corroboration.

6. In the rare type of case - of which this is an example - where the evidence of an accomplice implicates one defendant but exculpates another, we think it is necessary to draw a distinction and to direct the jurors that if the evidence of the accomplice by itself raises a doubt in their minds as to the guilt of the second defendant they should acquit him, because the prosecution will not have discharged the burden of proving its case beyond reasonable doubt. That was not done here and we think that such failure amounted to an irregularity. It was an irregularity which cannot be cured by an application of the proviso.

7. Accordingly the application is granted and the appeal allowed. We will hear counsel on the question whether there should be a retrial.

14th December 1984