R. v. WAN FEI

IN THE COURT OF APPEAL

1994, No. 215
(Criminal)

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J U D G M E N T

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

1. The applicant is a man in his early thirties. He faced two charges: one of arranging the passage to Hong Kong of two unauthorised entrants and the other of aiding and abetting them to remain in Hong Kong without authority.

2. The trial took place before Deputy Judge Candy in the District Court in April last year. Both unauthorised entrants gave evidence for the prosecution. Their evidence certainly failed to incriminate the applicant on the arranging charge. The judge took the view that it incriminated the applicant on the aiding and abetting charge. Their failure to incriminate the applicant on the arranging charge resulted in both unauthorised entrants being turned hostile.

3. Notwithstanding that, the judge saw fit to rely on their evidence on the aiding and abetting charge. So we find ourselves in unusual territory in which prosecution witnesses were turned hostile but nevertheless relied upon by the judge in convicting.

4. Referring to the two unauthorised entrants as "PW1" and "PW2", this was what the judge said in his Reasons for Verdict:-

"While it is true that in some respects PW1 and PW2 were inherently contradictory in their evidence as well as contradicting each other each of them clearly and steadfastly maintained that the Defendant had been told and was aware that they had come to Hong Kong illegally and that he had assisted them by agreeing to provide them with accommodation at his uncle's factory before their return to China."

5. Looking at the record, it is clear to us that neither of those witnesses said anything of the kind either "clearly" or "steadfastly". What they said was equivocal.

6. In the event, on the evidence of the two unauthorised entrants and on two confession statements by the applicant, the judge convicted the applicant on the aiding and abetting charge. That was on April 21 last year. On the same day, the judge sentenced the applicant to 18 months' imprisonment. The applicant now seeks leave to appeal against conviction and sentence, the application being made out of time as far as sentence is concerned.

7. We are not confined to considering whether there was evidence apart from the testimony of the unauthorised entrants on which a judge could have convicted. We look at the case as a whole And we cannot uphold the conviction if it does not appear safe or satisfactory so to do.

8. The circumstance of this case and the course which the trial took are very unusual. And we cannot free ourselves from the anxiety that in this very unusual case the judge's erroneous view as to the unreliable evidence, being the unauthorised entrants' evidence, might have in some way affected his decision on the other evidence, being the confession statements, and also overall. We might mention that prosecuting counsel below had in fact invited the judge to ignore the unauthorised entrants' evidence. That invitation was a wise one. But the judge did not accede to it.

9. All things considered, we do not think that the conviction here is either safe or satisfactory. Nor do we think that it can be saved by an application of the proviso. In those circumstances, the application for leave to appeal against conviction is granted, the hearing of that application is treated as the hearing of the appeal itself, and the appeal is allowed so that the conviction is quashed and the sentence set aside.