THE QUEEN v. WONG MUK PING AND ANOTHER

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J U D G M E N T

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Sir Alan Huggins, V.-P.:

1. The task of the court and of counsel for the Crown was made immeasurably more difficult by the failure to file properly drafted grounds of appeal and to direct the argument clearly to each ground in turn. As we understand it, the grounds which have in fact been advanced are as follows:

1st Defendant

(1)

That the judge wrongly admitted in evidence this Defendant's statement to the police in that the finding that the statement was voluntary was one which no reasonable judge could make on the evidence.

	(2)	(a)	That the judge erred in failing to direct the jury totally to disregard the evidence of CHAN Man-hin and LEUNG Chau-yung.
		(b)	Alternatively, that the judge erred in failing to direct the jury that the evidence of an accomplice must be credible before any question of corroboration can arise.

(3)

That the verdict was unsafe and unsatisfactory for the following reasons:

	(a)	Material evidence was given by witnesses who were inherently suspect and uncorroborated;
	(b)	the evidence of those witnesses was of a quality which inevitably left doubts as to its truth;
	(c)	that even if ground (1) did not justify the quashing of the conviction per se the statement of the 1st Defendant was of doubtful evidential weight;
	(d)	PUI Sai-hung, a co-conspirator, was tried separately and was acquitted; and
	(e)	the conviction of CHENG Ah-kai, another co-conspirator, was quashed on appeal.

 

5th Defendant

	(1)	The judge erred in failing to withdraw the evidence of LI Ting-sze from the jury.
	(2)	The judge erred in failing to withdraw the evidence of CHAN Ming from the jury.
	(3)	The judge wrongfully disallowed the cross-examination of LI Ting-sze about the assessment of his character by the Court of Appeal in YU Yuk-kwong v Reg.
	(4)	That the conviction of the 5th Defendant on count 2 was inconsistent with the acquittal of the 1st Defendant on that count.
	(5)	That the verdicts were unsafe and unsatisfactory for the following reasons:

	(a)	The acquittal of the 1st Defendant on count 2 raised doubt as to the evidence of LI Ting-sze relating to count 3;
	(b)	material evidence was given by witnesses who were inherently suspect and uncorroborated; and
	(c)	the evidence of those witnesses was of a quality which inevitably left doubts as to its truth.

 

2. The trial of these Defendants resulted from events going back many years, with which events were connected the names, among others of MA Sik-yu, MA Sik-chun and NG Sik-ho. The indictment originally contained nine counts and involved nine Defendants, but counts 1, 2, 3 and 9 were separated. The present Applicants were the 1st and the 5th Defendants, who did not answer to their bail and, as a result, were eventually tried on those counts separately from the other Defendants. The 1st Defendant was convicted on count 9 but acquitted on counts 1 and 2, whilst the 5th Defendant was acquitted on count 1 but convicted on counts 2 and 3. It is material to note that at his trial YU Yuk-kwong (the 2nd Defendant) was convicted on count 2 but that that conviction was set aside upon, appeal. CHENG Ah-kai (the 6th Defendant) was convicted on counts 8 and 9 (which in reality related to one continuing conspiracy) but his conviction was set aside on appeal. PUI Sai-hung (the 7th Defendant) was acquitted on count 9.

3. Count 9 is different in that it relates to trafficking in opium whereas the other counts relate to trafficking in morphine. The opium was delivered to Hong Kong waters by fishing boats and the allegation was that the 1st Defendant had agreed to be responsible for the transportation of the drug after it had been landed. He was arrested on 25th August 1977 by officers of the Triad Society Bureau of the Royal Hong Kong Police, who went to his residence in the early hours of the morning. Two of the witnesses upon whose evidence the prosecution largely rely were fishermen, one named CHAN Man-hin and the other LEUNG Chau-yung. They, together with another man, were arrested in a motor-car near the Lion Rock Tunnel in Shatin a little while before. The evidence of these fishermen was strongly attacked upon the appeal.

4. The case for the Crown was that the 1st Defendant had arranged for a lorry to pick up one consignment of opium when it was put ashore at Ho Tung Lau in Shatin and that he had supervised the transfer from a fishing vessel to a lorry. The lorry, with the drugs on board, was intercepted by the police near the entrance to the Lion Rock Tunnel and the driver, PANG Tak-po, was arrested. Upon his arrest at 04.50 the lst Defendant had nothing to say. He was then taken to police headquarters and at 06.30 he made a statement which contained a confession to the offence for which he had been arrested.

Ground 1 (1st Defendant)

5. The statement made by this Defendant was the result of a series of over 40 questions put to him after caution. The questions were put by a detective sergeant in the presence of a senior inspector. These officers had not been involved in the surveillance of the landing of the drugs earlier that morning-that being the responsibility of the Narcotics Bureau - and they were not fully informed about the case: they were given a pro forma questionnaire and instructed to put the questions to the 1st Defendant. The pro forma was before the court and was in the English language. The questions there set out were translated and recorded in Chinese by the sergeant along with the answers. A translation of the questions and answers by the court translator was produced, and it is not surprising that the questions appearing in the translation are not in the identical words of the pro forma, although the substance is the same. There appear in the statement two questions which were not in the pro forma. The first, which followed the answer to question No. 36, was:

"Under what circumstances and when did you come to know him ?"

It is likely that the draftsman of the questionnaire had expected a negative answer to question No.36, which was

"Do you know PANG Tak-po ?"

and the sergeant reasonably inserted what was a further question obviously suggested by the affirmative answer which in the event was given. The second additional question followed the very long answer to question No.37.   That was the answer which contained the confession and could never have been anticipated by the draftsman of the questionnaire. Again the further question was one obviously suggested by the answer given. However, these questions and answers assume significance in the light of the defence allegations that the statement was not an accurate record of what the lst Defendant said at the time and was, in any event, not voluntary. Thus it was contended that these two questions and answers were added after the 1st Defendant had signed, and the contention appears to receive support from the fact that each of them is recorded at the bottom of a page and that those two pages were signed by the 1st Defendant above the challenged question and answer. Much has also been made of the fact that the 1st Defendant's signature on every one of the pages of the statement appears to have been written "horizontally", that is to say the characters lie horizontally across the page but have to be read (and, presumably, were written) with the page turned sideways. This, counsel submits, is consistent with the 1st Defendant's-evidence that he was made to sign the statement without reading it, for he signed the answer to the formal charge in the more usual manner.The opposing contention is that on some, although not all, of the pages the only space available for the signature permitted no other method of signing. Be that as it may, both the officers concerned testified that no inducement of any kind was held out to the 1st Defendant and that he signed voluntarily.

6. One further matter has been advanced as indicating that the statement was not voluntary. That is that the style of the long answer to question No. 37 differs from that of the rest of the statement.

7. Giving full weight to all these arguments we are not persuaded that the finding of the judge should be disturbed.

Ground 2 (1st Defendant)

8. The submission here is that it was not enough for the judge to warn the jury that the evidence of CHAN Man-hin and LEUNG Chau-yung was "extremely suspect" and that it should "exercise great caution in deciding whether to place any reliance on that evidence at all", and that it was open to the jury to think that it was "so totally unreliable that it ought to be completely disregarded": he should have left the jury with no alternative but to disregard their evidence altogether.

9. We were taken through the witnesses' evidence in extenso and as regards CHAN Man-hin Mr. du Cann submitted that no one would hang a cat on his evidence. Chan himself said that he was "getting senile" - he was 69 years of age  at the time of the trial -and repeatedly bemoaned the fact that the events took place "too long ago" for him to remember all the details.  It cannot be gainsaid that his story of the events at Shatin was not flawless. He described a meeting - which he originally said had taken place at Aberdeen, but he corrected that to "the Ying King", which is a hotel or apartment house in Kowloon - at which "Wong Chai" was present and at which plans were made for the collection and delivery of a consignment of drugs, but he said that Wong Chai did not sail with the vessel. In his deposition he had omitted Wong Chai from the list of those present and in cross-examination, in answer to the question "You first saw [the 1st Defendant] in car - after goods were unloaded", he replied "That is correct". The vessel in question was owned by WONG Chin-kai. There was a second boat owned by WONG Chin-kai's younger brother. In addition to the owners there sailed "a foki", the witness himself and "a Thai national". The drugs were picked up off Man Chau and the Thai national was then taken back to Hong Kong aboard the second boat. A day later WONG Chin-kai's vessel took the drugs to Tai Po, where they were packed in "paper boxes", after which the vessel proceeded to the rendezvous at  Ho Tung Lau. There, the witness says, he saw "Wong Chai", whom he identified as the 1stDefencant. He also saw a lorry and a car. He identified the 1st Defendant as having been present and inferred that he had driven there in the car because the lorry was a hired lorry and, after the drugs had been transferred, it was driven away by someone else. He said that he left the scene in Wong Chai's car but he was not clear about the circumstances in which he came to board that car. There is no doubt that he and Wong Chai were in the car when it was stopped by the police but that the 1st Defendant was arrested later at home. The witness asserted that he identified the 1st Defendant at an identification parade, but this was contradicted by Superintendent Blair, who conducted the parade and said that the witness identified one of the actors. The judge told the jury that he personally regarded Chan's identification of the 1st Defendant in the dock "as meaningless" and strongly suggested that it be disregarded completely.

10. LEUNG Chau-yung supported CHAN Man-hin's account of the alleged meeting at the Ying King Hotel and confirmed that the 1st Defendant was present, but he also failed to identify the 1st Defendant at an identification parade and picked out an actor instead. Leung was over 6o years of age at the time of the trial and at least by that date his eyesight was not good. Likewise he asserted repeatedly that he could not remember matters about which he was asked. Leung was not present at the events in Shatin on 25th August.

11. Normally, of course, it is not for the judge to withdraw one witness's evidence from the consideration of the jury on the basis that it is manifestly unreliable: it is for the jury to decide what weight should be attached to it. The question is whether the position is any different where the evidence emanates from an accomplice. We do not think it is, but that brings us to the second aspect of this ground of appeal, namely that the judge failed to give a sufficiently full direction on corroboration. What is said is that the evidence of these two accomplice witnesses was so bad that it fell of its own in inanition and could not be corroborated: Director of Public Prosecution v Hester (1972) 57 Cr. App. R. 212, 229. The jury was not warned that such a situation might arise and in the present case we think it was vital that it should be, for it might have thought that the evidence of the accomplices could in some way be resurrected by other evidence.

12. We take the view that it is upon this second aspect of ground 2 that the appeal of the 1st Defendant must succeed. Mr. du Cann rightly submits that the fact that there was other evidence upon which the jury could (if it believed that evidence) properly have convicted the 1st Defendant is no answer: it is impossible for us to know with certainty how the jury approached the matter and, if there remains a possibility that it approached the matter wrongly, the verdict cannot stand.

13. It is unnecessary for us to consider whether the conviction entered against the 1st Defendant would otherwise have been unsafe and unsatisfactory.

14. We turn, therefore, to the application of the 5th Defendant.

Ground 1 (5th Defendant)

15. An attack similar to that which we have already considered in relation to the evidence of CHAN Man-hin and LEUNG Chau-yung is here made on the evidence of LI Ting-sze, but no question of misdirection arises in his case, for the judge clearly directed the jury that his evidence was uncorroborated.

16. Mr. du Cann expressly disclaimed any suggestion that the judge could have excluded the evidence of LI Ting-sze: his contention was that there came a point in the trial when it should have been clear that the calling of Li as a witness was an abuse of the process of the court and the judge should have directed the jury to disregard his evidence entirely. The basis of this contention was that Li had given evidence at the trial of YU Yuk-kwong and that, on appeal, another division of this court had regarded him as "a man whose only discernible principles are those of self-preservation and self-interest" and "a proven liar, upon whom we are not able to rely". Therefore, it is said, this court should not countenance his being put forward in the present case as a witness of truth to depose to precisely the same matters as were in issue in the earlier trial: the impropriety of so doing is emphasized when it is seen that at the earlier trial he made an admittedly false assertion and that he repeated that very same assertion in the present trial. The assertion in question was that one LAM Hing-ho went on board the Polish vessel "Leluwel" to collect, a consignment of drugs, whereas the person who had in fact played that role was LI Chun-tin, LI Ting-sze's adopted brother.  For present purposes we will assume that there was a deliberate attempt to mislead the court at both trials.

17. Mr. du Cann argues that the court has, an inherent jurisdiction to prevent an abuse of its process, and this we accept. The question is whether it is an abuse of process to call as a witness a person who has been branded as a perjurer in previous proceedings. Reliance is placed on four cases. In Hunter v The Chief Constable of West Midlands Police 1982 A.C. 529 the plaintiff brought an action for damages for personal injuries alleged :to have been sustained as a result of assaults by police officers. The defendant applied to strike out the writ on the ground that the alleged assaults had twice been the subject of evidence at the trial of the plaintiff on 21 charges of murder, upon which charges he had been convicted. At that trial the judge had, on a trial within the trial, declared the allegation of assault to be "gross perjury" and, the same allegation having been repeated before the jury, the jury nevertheless convicted. It was held by the House of Lords that where a final decision had been made by a criminal court of competent jurisdiction, it was a general rule of public policy that the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court unless there were fresh evidence such as entirely changed the aspect of the case. The argument seems to be that, in the same way, it was manifestly unfair to the Applicant, or otherwise brought the administration of justice into dis epute among right thinking people, when the Applicant was called upon to answer allegations made by a witness who had been found to be so unreliable.

18. Support for this contention was sought from the decision in Reg. v Intervision Ltd. 1984 Crim.L.R. 350, where a Crown Court stayed a prosecution under the Obscene Publications Act 1959 on the ground that the defendant had assigned its rights in relation to the allegedly offending materials to a company which had already been prosecuted in the magistrate's court for a like offence in respect of the same materials and the magistrate had found those materials not to be obscene: the effect of the second prosecution would be to impugn the magistrate's finding and the conviction would be irreconcilable with that finding. The Crown Court relied upon dicta in Reg. v Connelly 1964 A.C. 1254, where Lord Devlin said at p.1353:

"There is another factor to be considered, and that is the court's duty to conduct their proceedings so as to command the respect and confidence of the public. For this purpose it is absolutely necessary that issues of fact that are substantially the same should, whenever practicable, be tried by the same tribunal and at the same time. Human judgment is not infallible. Two judges or two juries may reach different conclusions on the same evidence, and it would not be possible to say that one is nearer than the other to the correct. Apart from human fallibility the differences may be accounted for by differences in the evidence. No system of justice can guarantee that every judgment is right, but it can and should do its best to secure that here are not conflicting judgments in the same matter."

(However, the House of Lords - at a time when a count for murder was thought not to be triable with a count for robbery-held in that case that issue estoppel was unknown to the English criminal law and that an acquittal on the murder count was no bar to a subsequent trial on the robbery count.) Mr. du Cann submits that if the 5th Defendant had been tried at the same time as YU Yuk-kwong (they having been indicted together) he would also have been discharged at the same time as YU Yuk-kwong: it would offend the public conscience that he should be convicted on evidence similar to that which was declared by the Court of appeal to be unreliable, even though the reason why he was not tried at the same time was his own wrongful act in absconding.

19. The last case cited to us was Director of Public Prosecutions v Humphrys 1977 A.C. 1, where a defendant who had been acquitted of driving a motor vehicle when disqualified was charged with perjury in respect of his evidence at the first trial that he did not drive any motor vehicle during the year in which the offence was alleged to have been committed. It was held that the determination of that issue in his favour at the first trial would not be a bar to the admission at the second trial of evidence (which had been given at the first trial) that he had been driving on the day of the alleged offence, even though, if accepted, that evidence would tend to show that the defendant had been wrongly acquitted at the first trial. The doctrine in criminal proceedings (which was that discussed in Red v Connelly) is, as Lard Hailsham said at p.40, based on the prohibition of double jeopardy. That was extended in Reg. v Intervision Ltd. (supra) to a case where the defendant at the second trial stood for all practical purposes in the shoes of the defendant at the first trial.

20. We see no reason to extend the doctrine in criminal proceedings any further. This Applicant has not been placed in double jeopardy nor was there, as in the first two cases relied upon, an attempt to re-litigate a finding of, fact made in earlier proceedings to which the Applicant (or someone in his shoes) had been a party. Accordingly we do not think it was necessarily unconscionable to invite another jury to consider evidence which was a repetition of the evidence which had been adversely criticised in Reg.v YU Yuk-kwong and we hold that to call LI Ting-sze at the second trial was not an abuse of the process of the court. It makes no difference that his evidence constituted a corner-stone of the prosecution case nor, on the other hand, that no application was made at the trial to have it withdrawn from the consideration of the jury

Ground 2 (5th Defendant)

21. The reason why it is submitted that the 'judge should have withdrawn the evidence of CHAN Ming from the consideration of the jury is that, upon the application of the prosecution, he was declared a hostile witness. CHAN Ming was named as a co-conspirator in counts 2 and 3 and, like LI Ting-sze, was an accomplice, but it is the fact that his evidence was extracted by cross-examination that is relied upon in this Ground of Appeal.

22. In Golder (1960) 45 Cr. App. R. 5 the Court of Criminal Appeal said at p.11:

"In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act."

23. Mr. Hodge points out that in the present case the judge, having reminded the jury that CHAN Ming was a man who said he thought he was transporting pirated recordings from Taiwan, said:

"If you do not believe him on this point, you may feel perhaps that his evidence in general is probably pretty useless or at least unreliable …";

and later

"I don't know how you feel about his evidence ...  but I was distinctly unimpressed".

Mr. du Cann submitted in effect that to tell the jury that they might feel that the witness's evidence was unreliable did not comply with a rule that the jury should be directed that they must treat the evidence as unreliable. More importantly, the judge never told the jury that the previous statement did not constitute evidence upon which they could act.

24. The passage which we have cited from Golder has not gone without criticism, especially in Australia: see Driscoll v Reg. (1977) 51 A.L.J.R. 731, 733C. The view taken by this court in WU Man-choi v Reg. 1979 H.K.L.R. 174, a decision which is binding upon us, was stated at p.178:

"... the better view seems to be that the evidence of a hostile witness always remains evidence in the case which the jury are bound to take into consideration if they are satisfied that it is credible".

However, the rule that the inconsistent statement is not evidence as to the truth of  its contents is well established, and Mr. Hodge did not seek to persuade us that the breach of that rule in the present case was not a misdirection. We nevertheless think it is incumbent upon us to examine what happened in the court below.

25. Various passages from the statement were read to the witness and he agreed that they had all been correctly recorded. Consequently the statement as a whole was never put before the jury. Indeed, the only passages read were the following from paragraphs 6, 7, 8 and 9:

Paragraph 6

 

"In the early part of the year 71, an old customer who often used my car, surnamed LI (this person is a native of Chiu Chau, 30-odd years old, living in Hill Road, Western District, number unknown), contacted me and asked me if I was willing to be a driver conveying dangerous drugs. It would only take 30 minutes for the work of conveying dangerous drugs each time and the remuneration would be one thousand dollars for each trip. There would be about two trips for every three months. Later, after consideration, I accepted his offer."

 

Paragraph 7

 

"Several days later ...."

"Tai Wah Restaurant ...... One month after the introduction, I began to work for Mr. Wong".

 

(He agreed in evidence that this should read "Mr. Li and Mr. Wong". It was also common ground that the word "days" was an incorrect rendering of “!months”.)

 

Paragraph 8

 

"The first time I conveyed dangerous drugs for them was in 1971 The Chiuchau man surnamed LI told me to park private car AJ 6281 at the seaside near Kan Kee Wallah-Wallah Co. ....... About ten-odd minutes later, the workman of the Kan Kee Wallah-Wallah moved two cases wrapped in gunny sacks into the boot of my private car. On each and every occasion, the Chiuchau man surnamed LI was present keeping watch. The time then was sometime after 8 p.m. Later, the man surnamed LI got into my car and went with me to the vicinity of Station Lane, Hung Hom, Kowloon where the car was stopped. The man surnamed WONG had already been there waiting later the man surnamed WONG told me to give the car key to him and instructed me to come back 30 minutes later to fetch the car. Then the men surnamed LI and surnamed WONG left together in the car."

 

Paragraph 10

 

"From 1971 to 1972, I had done the above-mentioned jobs for six to seven times. Every time it was done in the same procedure, at the same time and the same place."

 

Recognizing that these passages were not evidence of the facts therein stated, we are unable to see that a miscarriage of justice can possibly have occurred from the failure of the judge to tell the jury that they were not such evidence. This ground of appeal therefore fails.

Ground 3 ( 5th Defendant)

26. There is no doubt that the judge did prevent counsel for the 5th Defendant from cross-examining LI Ting-sze  about the assessment of his character by the Court of Appeal in XU Yuk-kwong v Reg. Mr. du Cann argues for the widest possible latitude in cross-examination as to credit and asks rhetorically whether there could be anything of greater relevance here than the finding by the court in the Yu Case.   He cites from Reg. v Sweet-Escott (1971) 55 Cr. App, R. 316 a passage from a judgment of Lord Russell of Killowen C.J. in Reg. v Baker 1895 1 Q.B. 797, 799.  That was a prosecution for perjury, it being alleged that when charged with selling beer without a licence the defendant had falsely sworn that on his trial for a previous, similar offence a plea of Guilty had been put in without his knowledge and against his will. The issue was whether this assertion, even if false, was material to the charge of selling beer without a licence and the court held that it was material, because it would affect his credit as a witness. That seems to us to be a very different case from the present. In Reg. v Sweet-Escott itself the defendant was charged with perjury in respect of a denial by him, when a witness in committal proceedings in 1970, that he had been convicted in the period from 1947 to 1950. He subsequently admitted convictions during that period. The court said that cross-examination as to credit

"must relate to the witness's likely standing after cross-examination with the tribunal which is trying him or listening to his evidence

and that it was inconceivable that the magistrates would have refused to commit because, over 20 years before, one of the witnesses had been in trouble, although he had no further conviction since. What that case therefore establishes is that materiality of a witness's credit for the purposes of a charge of perjury must be judged in the light of the issue to which his evidence is directed. We accept that principle and the question we have to decide is whether the opinion expressed by the judges in this court in YU Yuk-kwong v Reg. could properly affect the standing of LI Ting-sze, as a witness, with the jury before which he was giving evidence. It is true that a conviction reflects what is in reality nothing more than the opinion of the court of trial as to the truth of the charge laid against the defendant. Nevertheless, otherwise than on appeal the defendant cannot be heard in a court of law thereafter to deny the validity of the conviction, and the existence of the conviction is therefore a matter which can fairly be taken to affect his credit. Is that reasoning to be extended to an opinion expressed obiter by a judge or a witness who appears before him? The issue before the Court of Appeal in YU Yuk-kwong v Reg. was not whether LI Ting-sze was a liar but whether the conviction of YU Yuk-kwong was unsafe and unsatisfactory. The court thought that the evidence given by LI Ting-sze in that case was such that a verdict was unsafe. The jury had thought otherwise. We do not see that the jurors in the present case would have been assisted by knowing the opinions of the judges and of the jury in Yu's Case. They were fully aware of the matters upon which the judges had formed their opinion and they had to the judge for themselves whether, LI Ting-sze should be believed. The opinion of the-judges was no more relevant than that of any other person who might be acquainted with the witness.

Ground 4 (5th Defendant)

27. The issue here is whether the conviction of the 5th Defendant on count 2 is in reality inconsistent with the acquittal of the 1st Defendant on the same count. The burden is on the 5th Defendant to establish that no reasonable jury could have returned such verdicts or that there was such inconsistency that it would be unsafe to allow his conviction to stand: Hunt (1968) 52 Cr. App. R. 580.

28. In our view it is not enough that some of the evidence against the 5th Defendant in relation to count 2 came from the same witness as the evidence against the 1st Defendant on that count: a jury may properly be willing to act upon one part of a witness's evidence and not upon another. If the evidence against both defendants had been identical, we would have to intervene, but it was not. As Mr. Hodge points out, LI Ting-sze's alleged contacts with the 5th Defendant were closer and more prolonged than those alleged with the 1st Defendant. The jury may even have been in doubt whether the 1st Defendant was the person referred to as "Ah Di".

29. We are not persuaded that these verdicts were inconsistent.

Ground(5th Defendant)

30. If the acquittal of the 1st Defendant on count 2 raises no doubt as to the conviction of the 5th Defendant on count 2, a fortiori it raises no doubt as to the conviction of the 5th Defendant on count 3.

31. We have considered the evidence against the 5th Defendant as a whole, bearing in mind that, by reason of the sources from which it came and the manner in which it was given, it was inevitably suspect. At the same time we must remember that due respect must be given to the opinion of the jury, to which is by law committed the task of deciding the factual issues.

32. Had we been able to consider the case entirely on its own merits and without reference to what had gone before, we would not have thought it right to interfere. However, the argument which was addressed to us in relation to YU Yuk-kwong's Case is relevant to this ground of appeal also. In that case this court, differently constituted, regarded the evidence of LI Ting-sze as so unreliable that the verdicts which depended upon it were "unsafe". We have before us evidence from the same witness which was in all material respects the same. Whether we are bound by that decision as being one of law or should follow it as a matter of comity, we have reluctantly come to the conclusion that we ought also to say that the verdicts in this case, which depended substantially upon LI Ting-sze's evidence, are "unsafe''.