THE QUEEN v. LI SIK CHIU AND OTHERS

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JUDGMENT

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Roberts, C. J. -

1. The three defendants were convicted before Mr. Justice Hooper and a jury on a number of counts dealing with the possession of implements fit for forgery and with possession of forged identity cards and sentenced to substantial terms of imprisonment.

2. The first and second defendants withdrew their applications for leave to appeal against conviction at the outset of the hearing before us. The first defendant also withdrew his application for leave to appeal against sentence. This left only applications of the third defendant, LO Chit-man, ("D.3"), for leave to appeal against his conviction and also sentence.

3. As a result of information which they received, the police carried out a series of raids on 16th October, 1984. It is only necessary, for the purposes of this appeal, to refer to two of those raids, one of which took place on Room 735 at the Nam Fung Centre, in Castle Peak Road, where they found a substantial quantity of articles which, in accordance with the evidence of an expert witness, were said to be fit for the production of forged instruments of various kinds. A second raid was carried out on the residence of D.3 at No. 8 Observatory Court, 3rd floor, Tsim Sha Tsui.

4. Among the counts were two which are relevant to this application. The second count, on which D.1 and D.2 were both convicted, charged them with custody or possession of a set of photographic films, fit and intended for use in the forgery of Simpsons Department Store Gift Vouchers. The third count, on which D.3 was convicted, charged him with having in his custody a set of photographic films, fit and intended for use in the forgery of Simpsons Department Store Gift Vouchers.

5. It was not contested by D.3 that when the police arrived at his place of residence, he was in possession of a set of photographic films of the nature described in the third count. It was, however, his defence that he had come into possession of the folder in which these photographic films were found, because D.1 had left them with him the previous day, having, according to D.3, assured him that nothing illegal was intended and that the vouchers referred to a business abroad and were not for circulation within Hong Kong. His defence, in other words, could be summarizea as being that he was in possession of the articles but that he had no knowledge that they were to be used for an illegal purpose, namely forgery, and that this was certainly not his intention.

6. D.1, by contrast, suggested in his evidence that the initiative in the transaction, which might eventually have resulted in the production of forged gift vouchers, care from D.3. There was thus a conflict of evidence between these two defendants, each of them with a different purpose to serve each of them seeking to off-load the major responsibility for the transaction onto the other.

7. There was clear evidence on which the jury could come to the conclusion, as they clearly did, that there was a link between what 1 might call the "factory" where the majority of the implements was found, which was under the supervision of D1 and D.3. In D. 3's premises were found the folder, to which I have referred, with gift certificate vouchers inside it. On the plastic cover of that folder was a fingerprint of D.1. In the factory itself were found negatives of the gift certificates found in D. 3's   possession.

8. The main ground put forward on behalf of D.3 by Mr. Mackay was that the judge erred in not warning the jury that there was a substantial conflict of evidence between D.1 and D. 3 and that therefore the evidence of each ought to be examined with care because each of them had a separate interest to serve.

9. We have been referred to a number of cases,  among them Mainwaring¹, Stannard², Whitaker³, Prata⁴ and Knowlden⁵. The effect of these cases, as we interpret them, is that it is wholly a matter within the discretion of the trial judge as to whether he should give to the jury a full scale warning on the subject of accomplice evidence and of the necessity of corroboration.

10. It does, however, appear to be established that there is an obligation on the judge to give what I might call the lesser warning, that is to say, a warning that the jury must examine the evidence with care where co-defendants give damaging evidence against one another.

11. D.1 and D.3 did give evidence which could properly be so described, since they were adopting a "cut-throat" defence. Therefore the judge ought to have given the lesser warning.

12. It is, however, apparent from the various authorities that the failure to give this warning is not necessarily to be regarded as fatal to the conviction. In a number of cases, although not in all of them, the Court of Appeal in England has been prepared to apply the proviso, provided that it must have been apparent to the jury that conflicting versions were being put forward and that each of the co-defendants had a purpose of his own to serve.

13. This must indeed have been obvious to the jury in this case. They had before them the explanation which was put forward by D.3, an explanation which quite clearly they rejected. When rejecting it they cannot have been in any doubt that D. 1's explanation was in conflict with it.

14. We are satisfied that, if the jury had been warned in the manner which the authorities require, the result would have been exactly the same and that, consequently, no injustice can have flowed from the failure of the judge to deliver the lesser warning.

15. Mr. Mackay has sought to give more weight to his central contention by arguing that there were other faults in the summing-up which should incline us to refuse to apply the proviso, notwithstanding that we might have done so if the failure to deliver the warning had stood alone.

16. His first submission was that there was a passage in the summing-up in which the judge said, at p. 56, -

"All the evidence is admissible in this case so far as the 3rd defendant is concerned except the statements of his co-accused."

17. Elsewhere in his summing-up, the judge has made it clear to the jury that they roust approach the evidence against each defendant separately. We see no reason to suppose that the jury would have been misled by this passage which does not, for a moment, suggest that anything which is irrelevant to D. 3's case should be given weight against him. We think that the jury would clearly have interpreted that passage as warning them that the one thing they must not consider against D.3 was statements of co-accused. In delivering this warning he was taking a proper course.

18. There was also some criticism of a passage in the judge's summing-up in which he indicated to the jury that it was open to them to give some weight to the fact that D.3 attempted to resist the entry of the police into his premises in the morning of 16th October. We see nothing improper in an observation of this kind by a judge. It is, after all, in accordance with common sense.

19. There are no other grounds of substance put forward on behalf of D.3 and we are satisfied that his application for leave to appeal should be dismissed by the application of the proviso in relation to the omission of the judge to issue the lesser warning.

1    [1982] 74 Cr. App. R. 99

2    [1976] 48 Cr. App. R. 81

3    [1976] 63 Cr. App. R. 193

4    [1960] 44 Cr. App. R. 83

5    [1983] 77 Cr. App. R. 94