THE QUEEN v. WONG CHI-YUNG AND OTHERS

Headnote

Where one defendant gives evidence which implicates another defendant the need for and the terms of an "accomplice warning" are in the discretion of the trial judge.

BETWEEN

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JUDGMENT

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Judgment of the Court delivered by Cons, J.A.:

1. The three applicants - we will refer to them as defendants for convenience -were tried in December last year before Baber J. and a jury and were convicted of conspiracy to manufacture a dangerous drug. The 2nd defendant was further convicted of possession of a dangerous drug for the purpose of trafficking.

2. All three were additionally indicted for alternative counts of doing an act preparatory to the manufacture of a dangerous drug, but the jury were not asked to return a verdict on these counts in view of the convictions we have just mentioned.

3. The evidence against them consisted for the most part of evidence by Customs Officers who had kept them under observation for three particular days, namely the 23rd, 24th and 26th of December 1983.

4. According to the officers, at about 2 p.m. on the 23rd of December, the 2nd defendant drove a private car AU6399 to the Ho Mun Restaurant in Mongkok. There he must have met the 3rd defendant for they emerged together at about 4:30 p.m, together with another man. All three went off in the car and eventually came to a place where the 3rd defendant and the other man loaded two red, white and blue bags into the boot of the car. The 2nd defendant then drove the car to an open space by Ma See Po Village in the Fanling district and parked it. He gave the keys of the car to the 1st defendant, who is apparently a relative of the 3rd defendant, later in the evening when all three and the other man met together at about 9 o'clock at a food stall in Luen Wo Hui, which is also in the Fanling district. After the meal it would seem, although there is said to be some discrepancy in the evidence of the officers at this point, that the 1st defendant went to his home at 14B Luen On Street while the 2nd and 3rd defendants took a train back to Kowloon.'

5. The next morning, at about 8.45, the 1st defendant went to the parked car, took the two bags from the boot and trundled them on a trolley to No. 43 Shek Wo New Estate, which appears from the photograph to be a small or perhaps not so small house. The jury were shoran many photos of the house, both outside and inside. In taking the bags from the boot in the first instance the 1st defendant  spilt some of the contents on to the ground. This was later found to be caffeine, an ingredient commonly used in the manufacture of what is commonly known as heroin.

6. At about 6 o'clock the same evening the 1st defendant took his family by train to Mongkok where they visited a cinema and went on to a restaurant in Portland Street. There he met the 3rd defendant and must also have met the 2nd defendant for sometime later, after the 1st defendant's family had left the restaurant on their own, the three defendants came out together.  The 3rd defendant went off alone, the other two took the train to Fanling and proceeded then to 14B Luen On Street. Subsequently the 2nd defendant drove off in the car.

7. Nothing apparently happened on Christmas Day itself. The next day, that is the 26th, at about noon the 2nd defendant together with another man named Tsang drove in the car to 14B Luen On Street. The 2nd defendant entered 14B, came out again and the two then drove on to No. 43 Shek Wo New Estate. Again the 2nd defendant went inside, and this time came out carrying a grey and blue bag, later found to contain a considerable amount of heroin. He was seen to place it in the car behind the front passenger seat, where it was found when the Customs Officers intercepted the car soon after the 2nd defendant had driven off. In the glove compartment of the car eras found a measuring vessel wrapped in a towel, both of which bore minute traces of heroin. Loose caffeine was found in the boot. Two keys were found in the 2nd defendant's jacket pocket. When he was then taken to No. 43 Shek Wo New Estate these were found to fit two of the locks in those premises. Eventually he was taken into custody where he made a cautioned statement.

8. The 1st defendant was arrested at 14B and admitted ownership of a key which also related to a lock within No. 43 Shek Wo New Estate. A search of those premises disclosed the red, white and blue bags and ample evidence that the place had been used sometime or other for the manufacture of heroin. Also found there were a savings account passbook and a re-entry permit in the name of the 3rd defendant. He was not however arrested until sometime in March.

9. The man named Tsang was released. No charges were brought against him.

10. In their evidence the 1st and 3rd defendants denied that they were the persons concerned in what the Customs Officers said they had seen. The 2nd defendant admitted his part, but only in the sense of what he actually did. His case was that he had been employed as a driver by the 3rd defendant and that he merely carried out the orders given to him without knowledge of the nature of the materials he was carrying or that they were to be used for the manufacture of dangerous drugs. Some comments in his cautioned statement were said to implicate the 3rd defendant more deeply.

11. The 3rd defendant in his turn produced a photostatic copy of a tenancy agreement which indicated that he had rented No. 43 at the time in question to the 2nd defendant. The 2nd defendant claimed the document to be a forgery which the first defendant, through his solicitor, had attempted to get him to sign sometime after their arrest.

12. The evidence of the 2nd and 3rd defendants was thus mutually inimical. In that circumstance the judge was required to consider whether he ought to give any particular warning to the jury, and if so what form the warning should take. There is ample English authority that he was not bound to give the warning that would be required if similar evidence had been given by a witness for the prosecution, namely that if the jury considered the witness to be an accomplice it would be dangerous to convict on his uncorroborated evidence, and then to go on to explain to the jury what was meant by corrobation and how it might or might not be found in the particular circumstances, a direction that has been dubbed the "full treatment": per Mchullin J.A. R.v. CHAN Siu-hung & Others ⁽¹⁾ Some of the cases to which we refer are R. v Stannard ⁽²⁾; Russell ⁽³⁾ Knowlden ⁽⁴⁾; and Loveridge ⁽⁵⁾.  In particular Knowlden ⁽⁴⁾ (at p. 100) indicates that the need for the "full treatment" can rarely be expected to arise. At the same time we think that the occasions where no warning at all ought to be given will be equally rare.

13. The learned judge below may have initially taken the view that this was one of those rare occasions, for no warning of any kind is included in the main body of the summing up. However, in response to some form of suggestion by Counsel for the Crown, he was prompted to add these words:

"What counsel is asking me to say to you is that when defendants have given damaging evidence against one another, you must examine the evidence of each with care because, of course, each may have an interest of his own to serve. That is really very obvious."

14. Counsel for the 2nd and 3rd defendants both complain, as the first grounds of their respective appeals, that the direction did not go far enough, that it should have taken the form of the "full treatment". In their view the line of English authority to which we '' have in part referred is based on a misconception of earlier cases, and in truth the rule as to co-defendants is equally as strict as that with regard to accomplice witnesses. As an alternative argument for the 3rd defendant it is put by Miss Remedios that if it is a question only of discretion then the present circumstances were such that the discretion could only have been properly exercised in one way, namely by the giving of the full treatment.

15. We may conveniently deal with the latter suggestion first. Miss Remedios instanced four factors which in her submission should have influenced the judge to that conclusion.   First, by its very nature the charge of conspiracy alleged that the 2nd defendant was an accomplice of the 3rd defendant; second, the evidence of the 2nd defendant was damaging to the 3rd defendant in the extreme and tended to prove the conspiracy against him; third, Counsel for the Crown in his closing speech expressly relied upon the evidence of the 2nd defendant as against the third, so that in effect 'the 2nd defendant became a witness for the Crown; and fourth, by their conviction the jury indicated their satisfaction that the 2nd defendant was in fact an accomplice. We find it somewhat difficult to see hour the last factor could have influenced the judge in the exercise of his discretion. As to the rest we need say no more than that they do not seem to us unusual factors in the circumstances and we are not persuaded that we ought to interfere with the discretion of the judge if the matter remains exclusively in the realms of discretion.

16. In the course of her thoroughly researched and well-presented argument, Miss Remedios took us through the relevant authorities from Scott ⁽⁶⁾ in 1909 to the present day. Most come from the English Court of Criminal Appeal or Court of Appeal. The only exception is the well-known House of Lords decision of Davies v. D.P.P. ⁽⁷⁾ which determined the question unsettled until then that an "accomplice required warning" was, when required, required  as a matter of law and was not to be left to the individual discretion of the trial judge. That was a case where the alleged accomplice was called as a witness by the Crown and their Lordships were expressly not concerned with the case of one defendant implicating another, although one remark made may be interpreted as indicating that the rule their Lordships were concerned to lay down was not then to apply.

17. It must be admitted that some of the early decisions to which we have been referred do tend to give support to the suggestion that the full rigour of their Lordship's rule applied even where it was a co-defendant that gave the evidence. We have in mind R v. Barrow ⁽⁸⁾ ; Garland ⁽⁹⁾; and Rudd. ⁽¹⁰⁾

18. With respect those early decisions do not appear to take into account the difficulties inherent, in the situation. Where the evidence is given by a Prosecution witness there are only the interests of the defendant to consider. But where the evidence is given by another defendant the court must consider not only the interest of the defendant against whom the evidence is given but also the interests of the defendant who is giving that evidence and who will probably also be giving evidence which exculpates himself. This distinction is in our view of vital importance, and it may well be the reason which underlines the more recent decisions.  It may be possible in some cases that a meticulously careful summing up can differentiate sufficiently the different approaches that will be needed from the jury, but in others for example where two defendants each put forward what is commonly known as the cut-throat defence, the task of the jury will become impossible. It is to be noted that Lord Alvestone C.J. approved of no direction at all in a case of that kind: R v Martin. ⁽¹¹⁾

19. In 1954, in R v. LUNG Yee-hing ⁽¹²⁾ in a judgment given by Gould, J. the Full Court of this jurisdiction referred in more detail to the kinds of difficulties that might arise and relied upon them to assume that the matter rested within the discretion of the trial judge.  Twenty years later the present approach of the English Courts was adopted by the same court in R v. CHAN Siu-sing ⁽¹³⁾ and then by this Court in R v. CHAN Siu-hung. ⁽¹⁴⁾ We do not read the latter decision  as varying the principle other than to say that the reason for the warning should be explained to the jury, and that, where the judge in fact introduces corroboration to the jury as a term of art, then it is incumbent upon him to go further and to give "the usual directions as to corroboration", thereby echoing perhaps unconsciously the comments of Diplock, L.J. in Russell ⁽³⁾ at p. 150.

20. We are told that in New Zealand and in some courts in Australia the accomplice rule is applied with equal stringency in both cases. We have not been referred to those cases in detail, but they appear to rely upon an identity of principle between the two situations. The logic of the argument is inescapable when the situation is looked at solely from the point of view of the defendant against whom the evidence is given. With respect we question whether in the alternative situation sufficient consideration has been given to the difficulties we have indicated above.

21. We understand that the Canadian Courts have followed the lead given by those in England.

22. In R v. Barnes ⁽¹⁵⁾ Hewitt L.C.J. used these words:

"One looks in vain for any case in which it has been decided that, where prisoners are tried together on the charge of being jointly concerned in the commission of a crime and that they elect to give evidence, and in so doing one of them happens incidentally to give a piece of evidence which tells against another of the persons accused, it is requisite that the warning with regard to the evidence of the accomplices should be given."

23. A further argument that this passage limited the discretionary approach to cases where the evidence of the co-defendant was no more than "incidental" was not pursued by Miss Remedios with much enthusiasm. In our view it is the very difficulty of deciding whether the evidence is "incidental", or whatever other adjective may be put forward in contrast or competition, that has led the English Courts to leave the choice of warning to the trial judge himself. We would respectfully agree.

24. For these reasons the first grounds of appeal must fail.

25. The other arguments of Miss Remedios, which encompass the 1st defendant as well as the 3rd, are with respect not so easy to follow and at times appear to bear little relation to the grounds of appeal which they are intended to support. For the most part it seems to be suggested, although stopping short of an actual allegation that the evidence was insufficient to justify the convictions, that the judge could have been of more assistance to the jury with respect to particular aspects of the Crown case and as to what inferences might be drawn from particular passages of the evidence. While the learned judge's economy of words may give some justification for the criticism, we are not persuaded that the summing up was in any way prejudicial to the defendants or that the subsequent convictions were in any way unsafe or unsatisfactory.

26. One matter raised does call for particular comment. It derives from remarks made by counsel who then appeared for the Crown in the course of his closing address to the jury. Soon after rising to his feet he used these words:

"Members of the jury, the Crown rely in relation to the conspiracy count upon the surveillance evidence which you've heard, the 2nd defendant's evidence and what the Crown say are the lies of the 1st and 3rd defendants."

27. He repeated these words almost immediately, but without reference to the 2nd defendant, in relation to the alternative counts. Then not long afterwards he addressed the jury with regard to the 1st defendant as follows:-

"If you are not sure about those matters-in other words that he participated in the conspiracy particularly, then consider the alternative count which he faces, of doing an act preparatory to manufacture; and I suggest this to you, members of the jury - but, of course, again it is a matter for you - that the 1st defendant was lying to you from the witness box, and he has lied to you when he told you that he did not move the bags of caffeine, that he wasn't there at all, and of course - his Lordship will no doubt remind you in due course -lies do not equate to guilt, but if you are satisfied that he has lied, then that fact alone may be helpful, to you in your deliberations."

28. It is difficult to see how that fact could have been helpful to the jury. It is accepted that the discovery of a lie does not prove the antithesis. On rare occasions the fact of a lie, in or out of court, may assist as a matter of corroboration: R v. Lucas, ⁽¹⁶⁾ but we do not understand that case to suggest that every time a defendant gives evidence which may be disbelieved by the jury the Crown should ask the jury to take that factor as tending to prove his guilt. To be fair, counsel does not make that suggestion. He submits that the words used by his predecessor were intended to and in fact did no more than draw the attention of the jury to the suggestion of the defendant's untruthfulness.

29. Whether it is desirable in a given case to give any and what direction to the jury will depend upon the particular circumstances. In the present instance we think the judge should have taken some steps to disabuse the jury of the impression which counsel's words may have created, but we do not think his failure to do so has led in the end to any miscarriage of justice.

30. For these reasons the applications of the 1st and 3rd defendants are refused.

31. We turn then to the argument of Miss Toh who represents the 2nd defendant. He, it will be recalled, was additionally convicted of the possession of heroin for the purposes of unlawful trafficking. As to that the main complaint appears to be that although the judge put to the jury all that he should have done in relation to the presumptions and such evidence as there was that might, have helped the 2nd defendant in this respect, he did not do so as it were all in one breath, but mentioned them at various places during the course of his summing up. In the circumstances we see no merit in that point. Having disbelieved the 2nd defendant's evidence that the bag was in the possession of the man named Tsang rather than of himself, no reasonable jury, faced with the presumptions and the admissions contained in the defendant's own cautioned statement, could possibly have found him not guilty.

32. The other arguments of Miss Toh are in general the same as those of Miss Remedios and no more need be said. As to the few that remain we would respectfully say that in our opinion they contain no substance.

33. For these reasons the application of the 2nd defendant is also refused.

(1)    1976 HKLR 357 at 361,

(2)    48 Cr. App. R. 81

(3)    52 Cr. App. R 147

(4)    77 Cr. App. R 94

(5)    76 Cr. App. R 125

(6)    2 Cr. App. R 215

(7)    [1954] AC 378

(8)    24 Cr. App. R. 141

(9)    29 Cr. App. R. 46

(10)    32 Cr. App. R. 138

(11)    5 Cr. App. R. 4

(12)    38 HKLR 74

(13)    [1974] HKLR 493 at 504

(14)    [1976] HKLR 355

(15)    27 Cr. App. R. 154

(16)    73 Cr. App. R. 159