THE QUEEN v. YIP WING-SUN AND ANOTHER

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J U D G M E N T

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Yang, V.-P.:

1. This is the application of D3 and D9 for leave to appeal against conviction.

2. The two applicants were at all material times employees at the General Post Officer 'Their duty was to accept parcels from the general public, either at the Parcel Acceptance Counter or the Bulk Parcel Acceptance Counter. The officer on accepting a parcel must weigh it, determine the postage required, insert a blank franking label (or where more than one parcel was accepted at any one time, the requisite number of blank franking, labels, bearing consecutive numbers) into a franking machine. The franking machine at the Parcel Acceptance Counter was manually operated by means of a handle. The machine at the Bulk Parcel Acceptance Counter was mechanically operated.

3. D3 was convicted of one charge of uttering a quantity of forged franking labels on divers dates between 1st January 1974 and 31st December 1975 (Charge 16). On a charge against him of theft of a quantity of blank franking labels between the same dates, the trial judge found him not guilty of theft but guilty of handling Charge 47). He was found not guilty of forgery of franking labels (Charge 48).

4. Charges similar to the three against D3 in respect of the same period were preferred against D9. He was found guilty of all three namely Charge 8 on theft, Charge 13 on forgery and Charge 22 on uttering. He was also found guilty of theft (Charge 25), forgery Charge 30 and uttering, (Charge 35) in respect of the period 11th August 1975 to 30th September 1978 Lastly, he was found. guilty of conspiracy to defraud, between 1st July 1978 and 31st December 1978, the Postmaster General by selling post office postage franking labels printed by the conspirators not in the course of their duty (Charge 40). He was found not guilty of a similar conspiracy covering a different period. viz., 1st June 1980 to 31st December 1931 (Charge. 42).

5. Three accomplice witnesses gave evidence for the prosecution. The judge was prepared to accept the evidence of only one of them, i.e. PW1 Li Kam-chow. Three records were produced by the Crown. These were the Attendance Records, Leave Days Records and the Machine Record Book, this last showing when and by which officer a franking machine was removed from the store for this officer to operate during his working hours, and when it was returned. The trial judge found the records to be of "exceedingly slight" value.

D3's appeal

6. PW1's evindence against D3 is the same as that against D2 (charges 2, 10 and 15) and D 5 (Charges 4, 13 and 49) in respect of the same period. In finding D2 guilty the trial judge said he would not be prepared to convict on the evidence of PW1 "if this stood alone, feeling that although the witness is credible and tellingthe truth that this could be explained by the evidence taken as a whole that on occasion genuine labels were stored in a Postal Officer's pocket and that indeed the witness may possibly (albeit somewhat remotely) be mistaken as to the pocketing of proceeds". However there was D2's self-incriminating cautioned statement. On the totality of the evidence he found D2 guilty of all three charges.

7. He found D5 not guilty on the only evidence against him, which came from PW1, presumably because, as in the case of D2, he was not prepared to convict on PW1's evidence alone. D5 did not give evidence.

8. It is not clear on what basis the judge found D3 guilty at all. . D3's evidence was a complete denial. The judge did not accept his evidence. The only evidence against him carne from PW1 There being no other evidence upon which the judge might convict, there is therefore no real difference between D3 and 15. In the circumstances the convictions are unsafe and unsatisfactory. I would therefore allow D3's application, treat this as the hearing of the appeal, and allow the appeal.

D9's appeal

9. Of the nine grounds of appeal originally advanced on behalf of D9 only eight were pursued at the hearing, Ground 7 having been abandoned. Whilst each of the eight remaining grounds has been carefully considered, it is not unfair to say that these grounds may be grouped under two headings:

    (i) That the attendance records, leave records and machine records show convincingly that D9 could not have committed the offences alleged. It is said that the judge erred in giving the records minimal weight. The gist of the argument under this head is that the records show clearly D9 was not on duty or was on leave when the franking machine was alleged to have been removed from the post office and taken elsewhere for the forgeries to be effected. The short answer is that there was nothing to prevent an officer from returning to his place of work whilst he was on leave or off duty. The judge was entitled to find as a fact that the records were in any event "exceedingly slight' value in that that the entries were sometimes incorrect. To the case of D9 the judge was prepared to convict almost entirely on PW1's evidence.

    (ii) That the judge erred in accepting the evidence of PW1 This heading too may be shortly disposed of. The trial judge was well aware of this witness' bad character, the inconsistencies in his evidence, and the direct conflict between his evidence and that of the other two accomplices, etc. The judge devoted five pages in his Reasons for Verdict to assessing, this man's credibility. I am unable to say that the judge was wrong in accepting his evidence.

10. D9's application must fail and is dismissed.

Macdougall, J.:

11. In considering the cases against the 1st Appellant (the third Defendant), the 2nd Defendant and the 5th Defendant, each of whom had been separately charged with uttering forged franking labels, the judge concluded that the only prosecution witness whose testimony he accepted was Li Kam-chow. The testimony which that witness gave was substantially the same against all three of these Defendants.

12. In essence Li had told the court that he had seen each of the three take franking labels from his pocket and hand them to customers in return for money.

13. In giving his reasons for verdict in rspect of the 2nd Defendant the judge made the following, observation:

"I would not die prepared to convict on the evidence of Li Kam-chow if this stood alone, feeling that although the witness is credible and telling the truth that this could be explained by the evidence taken as a whole that on occasion genuine labels were stored in a Postal Officer's pocket and that indeed the witness may possibly (albeit somewhat remotely) he mistaken as to the pocketing of proceeds. It is the cautioned statement with which I am also concerned.

14. It is evident therefore that the judge found the 2nd Defendant guilty on the basis of the testimony of Li Cam-chow considered in the light of the admissions made by the 2nd Defendant in his cautioned statement. These admissions convinced the judge that the activity in which Li Kam-chow had observed the 2nd Defendant engaging was not susceptible of an innocent. explanation,. The judge was therefore entitled to find the 2nd Defendant guilty

15. The 5th Defendant, however, did not make a cautioned statement to the investigating officers nor did he give evidence at the trial. Accordingly the judge was left in the position that although he accepted the testimony of Li Kam-chow there was a possibility that, the labels Which Li had seen the 5th Defendant take from his pocket were genuine labels and that therefore he was not guilty of uttering forged labels. Thus the judge's finding that the 5th Defendant was not guilty was entirely consistent with the observations he made in his reasons for verdict when dealing with the case against the 2nd Defendant.

16. The 3rd Defendant however, elected to testify on his own behalf. Although the judge did not specifically say so it is obvious that as he found the Defendant guilty both of uttering and of handling forged franking labels, he disbelieved his testimony.

17. Counsel for the 3rd Defendant contended before us on this application that the observations made by the judge in relation to the 2nd Defendant necessarily vitiated his finding that the 3rd Defendant was guilty on the uttering charge and that as a 'consequence the judge also erred in convicting the 3rd Defendant on the handling charge.

18. I am unable to accept this process of reasoning. The judge's observation that "on occasion genuine labels were stored in a Postal 'Officers pocket" is not inconsistent with a finding that the 3rd Defendant was guilty of uttering forged franking Labels. In considering the case against the 3rd Defendant the judge was not left with the testimony of Li Kam-chow alone. He was entitled to take into account the testimony of the 3rd Defendant just as he had been entitled to consider the cautioned statement of the 2nd Defendant in determining what inferences he could legitimately draw from the testimony of Li Kam-chow.

19. Considered in isolation Li's testimony admitted of the 'possibility, perhaps remote, that all three Defendants had been taking genuine labels,from their pockets. However, as in the case of the 2nd Defendant where the judge had the benefit of the admissions made by that Defendant in his cautioned statement, the judge was perfectly entitled to consider the testimony of Li. Kam-chow against the 3rd Defendant in the light of the evidence which the 3rd Defendant gave on his own behalf.

20. If he had come to the conclusion that the 3rd Defendant had given untruthful evidence in claiming that he had never had franking labels in his pocket, and that in giving such false evidence he had been motivated by a consciousness of guilt, the judge would have been perfectly entitled to conclude that the labels which Li had seen the 3rd Defendant take from his pocket and give to customers in return for. money were forged labels.

21. As Lord Devlin said in Broadhurst v. The Queen^(l) at p.457:

But if on the proved facts two inferences may be drawn about the accused's conduct or state of. mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, or all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

22. Thus the finding that the 3rd Defendant was .guilty of uttering forged franking labels was not, of itself inconsistent with the observations made by the judge in the course of his reasons for verdict against the 2nd Defendant.

23. Indeed, on the hypothesis that the judge had concluded that the 3rd Defendant had given false testimony about the franking labels out of a realisation that the truth was inconsistent with innocence, the observations made by the judge in giving his reasons for verdict inrespect of the 2nd Defendant, the finding of guilt against the 2nd and 3rd Defendants and the finding that the 5th Defendant was not guilty are all consistent.

24. However, in what can only be characterised as skimpy reasons for verdict in respect of the 3rd Defendant, the judge positively stated "I turn now to the uttering charge. I believe the evidence of PW1 Li Kam-chow) suffices to establish the ingredients beyond reasonable doubt. In so uttering, I hold that the 3rd Defendant received forged labels and as such I hold that all the ingredients of the alternative charge of handling have been made out" (emphasis supplied)'.

25. Where a finding of guilt is plainly consistent with the judge having concluded that a defendant had lied on a material matter or matters out of a consciousness of guilt, it is not incumbent on him to state explicitly that he had come to that conclusion.

26. However, where the judge does not make it clear that he has come to such a conclusion but finds in respect of the same subject matter that the testimony of a particular witness is sufficient to establish the prosecution case against one defendant on the one hand but is not sufficient to establish the case against another defendant on the other hand, an appeal court can only conclude that the judge did not apply his mind to the proper considerations and that accordingly the finding of guilt is both unsafe and unsatisfactory.

27. The findings of guilt against the 3rd Defendant on both charges stand or fall together. for the reasons that I have given I too would grant the application of the 3rd Defendant for leave to appeal against his convictions and would allow his appeal.

28. As to the 2nd Appellant (the 9th Defendant however. I agree with my Lord the Vice President that his application for leave to appeal should he refused.

Power, J.A.:

29. I am in agreement with the conclusions reached by brothers and concur with the reasoning that has fallen from my Brother Macdougall.

(1) [1964] AC 441