CHEUNG PAK CHUEN v. HKSAR

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 204
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant stood charged before the District Court with ten accepting advantages offences as a police constable. He was charged that he accepted advantages in that capacity in return for providing information of impending police actions against vice and dangerous drugs establishments.

The alleged charges he faced spanned over a period between September 1995 to August 1996.

2. The prosecution called one witness Hung Man-wa. He testified to the involvement of the applicant in the alleged offences. There was no evidence from the defence. At the conclusion of the proceedings, the District Judge acquitted the applicant of two charges and returned a verdict of guilty to each of the remaining eight charges. The applicant was sentenced accordingly. He feels aggrieved by his convictions and now seeks leave to appeal against them.

3. The perfected Grounds of Appeal against conviction contain two principal complaints. First, in the passage I am about to repeat, it is contended that the District Judge was wrong and inaccurate. It is also complained that by his reference to lack of evidence in support of certain suggestions put to the applicant by counsel in the court below, the District Judge was also in error. Counsel submits that there was clearly evidence adduced before the District Judge supportive of these suggestions put to the only witness called by the prosecution. This shortfall is particularly significant in a case where an accused, as the applicant in this case, elected not to give evidence in the exercise of his right not to do so.

4. The second principal Ground of Appeal is centred on the Deputy Judge's approach to the evidence of Hung Man-wa. In essence, it is contended that having given himself a warning how dangerous it would be to convict without corroboration, the District Judge, in effect, took no heed of it.

5. As to the first ground, the relevant passage under complaint reads as follows:

"As I say I have considered each point made by Mr Kwong concerning PW1's evidence (Hung's evidence) with great care. But the fact of the matter is that I believe what PW1 (Hung) told me. Despite all those matters to which I have already made reference I am in no doubt that he told me the truth even in the absence of any corroboration. PW1 was completely unshaken in cross-examination and denied convincingly, time and time again, suggestions put to him by Mr Kwong on behalf of the Defendants, suggestions that 1st, 2nd and 3rd Defendants were not involved in any of the criminal activities alleged by PW1 against them."

In the way in which this passage should be properly read, we find no inaccuracy or error in the rationale; nor can we find any fault in the recitation of the overall background of the case. Then the judge continued :

"Those suggestions were, of course, just that: suggestions unsupported by any evidence."

Clearly, there was evidence supportive of the suggestions put to Hung Man-wa by counsel then acting for the applicant. Indeed, the judge referred to almost all of it in his Reasons for Verdict. That the suggestions were unsupported by evidence was a reference made to the absence of viva voce evidence given by the applicant. What was said by the judge should not be given an unduly extended or strained meaning. We can find nothing in what the judge said open to just criticism.

6. Turning to the second principal ground in support of the application, that is to say, having warned himself as to how dangerous it would be to convict the applicant without corroboration, in effect, the District Judge failed to take heed of that warning. Hung Man-wa testified before the judge and it was introduced into evidence a video-tape recording of a meeting between himself and the applicant, at which money was passed over, said by Hung to have been so passed over on behalf of another defendant (2nd defendant Pang) to the applicant as corrupted money.

7. Hung was granted immunity by the Government. He certainly was an accomplice. On his plea of guilty to a charge identical to one faced by the applicant, he had been sentenced to 18 months' imprisonment. In addition, he was a drug addict and more, a drug trafficker. He was also involved in the running of a vice establishment. In that context, the District Judge said, he should seek corroboration.

8. Counsel for the applicant attacked the evidence of Hung and his character in strong terms. He submitted to the District Judge that Hung was unreliable. Further, he had a bad character and he was, furthermore, an accomplice granted immunity. Lastly, Hung was certainly not enjoying too friendly a relationship with the applicant. In fact, it was suggested to Hung that he held a grudge against the applicant. Other negative suggestions were also put to Hung by counsel, then acting for the applicant.

9. What is commented upon or said by the trial judge should not be taken in isolation. It should be considered in its proper context. To-day, a warning of how dangerous it would be to convict without corroboration on the evidence of an accomplice, is not required as a rule. A warning is often gratuitously given by a single judge to himself as a gentle reminder as to how the evidence of an accomplice should be approached rather than received and that the need for caution should not be ignored. Sounding a warning note on corroboration may be no more than just a plain self reminder that cautious approach to the evidence of an accomplice should not be overlooked.

10. In the proper context of the whole of the Reasons for Verdict, that is, we find, precisely what the District Judge endeavoured to do in this case. We have been assisted by the extensive skeleton argument of counsel for the applicant as we are by his oral submissions. We have given all the matters raised before us our careful consideration. Having had the added advantage of further elaboration by counsel this morning, we can nevertheless find no merit in either of his two main submissions.

11. The judge's Reasons for Verdict cannot be faulted. Even with the further assistance of the counsel's submissions made to us to-day, we are unable to accept any of his grounds of complaint as valid. In the circumstances, we dismiss the applicant's application.