HKSAR v. CHAN BING KUEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 774
(Criminal)

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J U D G M E N T

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

1. The Applicant seeks leave to appeal against his convictions for conspiracy to commit robbery and possession of arms and ammunition without a licence.

2. The Applicant was convicted of these offences after a trial before Saied, J. and a jury.

3. The robbery had been planned to take place on 12th January 1996. Speaking in general terms the modus operandi planned was to utilise the services of two illegal immigrants from China, PW18 and PW19 who would be kept in the flat of one of the conspirators, PW17 and that on the instructions of the Applicant communicated by telephone to this man he would bring the two men to an agreed point at the intersection of Lai Chi Kok Road and Prince Edward Road. That would complete the role of PW17 who would receive a share of the spoils in due course. The Applicant would then take the men to the target premises and each man would be assigned a different role in the robbery. The most important role would be assumed by the Applicant. He had shortly before the day in question acquired the firearm and ammunition referred to in the 2nd count. This had been left in a drawer in the flat which housed the illegal immigrants and was the home of PW17. The plan was that PW17 would bring the pistol and ammunition with him when he brought the illegal immigrants to the agreed point. After the robbery was completed the Applicant would arrange for the illegal immigrants to immediately return to China.

4. It would appear that the police had inside information concerning these plans. PW17's flat had for some time been kept under surveillance. Police officers gave evidence of the Applicant on two occasions emerging from the flat and returning some time later. On one occasion he returned with a bag apparently containing provisions.

5. Police officers gave evidence of arresting the Applicant near the assignment point on 12th January 1996. The Applicant attempted to run away but was subdued and was taken into police custody.

6. There was also evidence of a police raid being conducted at PW17's flat and all three men being arrested. A search was undertaken at the premises and the pistol and ammunition were found in the drawer. Also other articles were found which were consistent with use in a robbery. Also a search was undertaken at the premises occupied by the Applicant's younger sister at Shatin. The Applicant had informed the police that he resided at this address. According to the police nothing of any significance was found at these premises.

7. Following all of this PWs 17, 18 and 19 were all charged with similar charges to those which the Applicant now faces. PW17 pleaded guilty at the outset to the conspiracy count and PWs 18 and 19 changed their pleas in the same way after the Judge ruled the statements they had made to be admissible as evidence. PW17 was sentenced to 8 years' imprisonment and the other defendants to 9 years' imprisonment each.

8. The Applicant was not charged as the prosecution did not consider that there was sufficient evidence to justify this. However when the Applicant returned from China in March 1997 he was arrested at the border and charged with these offences.

9. It transpired that after PWs 17, 18 and 19 had been duly sentenced they had a change at heart. Whereas previously they had protected the Applicant they then decided to change their minds to co-operate with the authorities. It clearly emerged from their testimony that their main motive in co-operating was the hope of obtaining a reduction in the sentences which had been imposed upon them.

10. It will be appreciated from this short summary of the position that the case against the Applicant was almost entirely dependant upon the testimony of his three accomplices. There was very little other evidence implicating the Applicant. There was the evidence of the officers who had undertaken the surveillance activities shortly prior to 12th January 1996. This linked the Applicant with PW17's flat where the pistol and ammunition had been found.

11. PWs 17, 18 and 19 all gave evidence implicating the Applicant in some detail. Essentially the evidence was fairly consistent. However the Judge drew the juries' attention in no uncertain terms to what might motivate these witnesses in implicating the Applicant. The Judge also drew the juries' attention to the occasions when these witnesses had told lies in relation to the previous proceedings.

12. Grounds 1 - 3 of appeal can conveniently be dealt with together.

1. The learned trial Judge erred in law in that he wrongly failed to warn the Jury:

(1) that it was dangerous to act upon the evidence of the three accomplices unless it was supported by other evidence coming from an independent source, and

(2) to explain to the Jury what items of evidence could support the evidence of the accomplices.

2. By reason of those failures set-out in paragraph 1 above the learned trial Judge wrongly failed to exercise his discretion in a proper or reasonable manner when he came to determine what warnings or directions he was going to give to the Jury in respect of the evidence of the accomplices.

3. The learned trial Judge erred in law and/or the proper exercise of his discretion in that he wrongly failed prior to the commencement of speeches to have a discussion with Counsel as to what special warning should be given in respect of the accomplice witnesses."

13. The Judge had this to say at p. 36 of his summing-up:

"This leads on to what has been described as the most important aspect of this case, the accomplice evidence. The term 'accomplice' in its fullness includes in its meaning all persons who have been concerned in the commission of the crime, all participes criminis. In this day and age accomplices have not become more credible or less dangerous as witnesses. The evidence of such witnesses has always been and continues to be regarded as tainted and one does not have to look far to understand why that is so.

Let me encapsulate in an attempt to help you understand more readily the principal reasons why they are considered to be untrustworthy witnesses:

(1) because an accomplice is likely to swear falsely in order to shift the guilt or blame from himself;

(2) because, he being a participator in crime, is likely to disregard the sanction of an oath or affirmation that he has taken;

(3) because he gives evidence in the expectation of a more lenient sentence if he discloses all he knows against those with whom he acted criminally, and this hope would lead him to favour the prosecution.

In the instant case we know that those three, POON Shu-hung, CHEUNG Lung and LEE Lung-yick pleaded guilty to the conspiracy to rob count and were sentenced to eight, nine and nine years respectively. POON appealed against his sentence, and the appeal came before the Court of Appeal on 17 November this year and was adjourned until after his evidence in this case was completed, and the same is the case with CHEUNG Lung's appeal against sentence, and the third man disagreed that he realised that the only chance for him to get a reduction in his sentence was to give evidence against the defendant.

Besides the witness's integrity and his veracity, one of the other factors for assessing his credibility is his being bound to speak the truth by such a oath as he made deem obligatory or by such affirmation as may by law be substituted for an oath. Whereas the three denied any suggestion that their one and only motive for giving evidence against this defendant was to seek a reduction in their sentence, it is important for you to look at them carefully to see what sort of people they really are, and scrutinise their evidence closely to see where each one of them as witness stands in the scale of reliability."

14. Mr. Grounds submitted that the Judge had not exercised his discretion in the proper way. He placed particular reliance upon a passage from the judgment of Lord Taylor at p. 1351 of R. v. Makanjuola [1995] 1 WLR 1348:

"Given that the requirement of corroboration direction is abrogated in the terms of section 32(1), we have been invited to give guidance as to the circumstances in which, as a matter of discretion, a judge ought in summing up to a jury to urge caution in regard to a particular witness and the terms in which that should be done. The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving 'discretionary' warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the Act. Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content."

15. We think it appropriate to stress that the discretion to which Lord Taylor refers is the discretion to refuse to give any warning. The Judge did not, in the present case, exercise that discretion. He gave a warning in the terms set out above. What this really boils down to is whether the Judge gave adequate directions on this aspect of the case.

16. The warning given by the Judge was more than sufficient in the circumstances. Also there was no necessity for the Judge to consult with Counsel. We consider that the jury would have had sufficient warning of the dangers attendant upon accepting this testimony.

17. The 4th Ground is:

4. (1) The learned trial Judge erred in law in that he wrongly failed to direct the Jury to consider each count separately.

(2) Further the learned trial Judge erred in law in that he wrongly directed that Jury that it was eminently correct that both counts in effect stood or fell together."

18. On the facts of this case it would have been fanciful to suggest that the two charges did not stand or fall together. The main witnesses giving evidence were the same and both offences were so closely interrelated that it is almost inconceivable that the jury would return a guilty verdict on one charge and a not guilty verdict on the other.

19. These convictions were in no way unsafe or unsatisfactory and this application is dismissed.