Yeung Yan Lok V. R.

1993, MP NO. 756

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. At the hearing of this application, I ruled in favour of the respondent and indicated that I would give my reasons in writing later. This I now do.

2. On 2nd March 1993, a hearing was conducted before Mr P.J. Line, a permanent magistrate, and following that hearing the applicant was committed by the magistrate to custody there to await the Governor's decision whether to extradite on one charge of conspiracy to traffick in 56 kilograms of a dangerous drug, one charge of trafficking in 56 kilograms of a dangerous drug, and one charge of trafficking in 21 kilograms of a dangerous drug. The evidence in support of the extradition request included the evidence of one Lee Wing Yiu properly described as an accomplice in the charges against the applicant. The respondent concedes that without the evidence of the witness Lee Wing Yiu, there would not be a prima facie case on any of the three extradition charges. This application was supported by the submission that a person charged with the same offences as the defendant, though not tried at the same time as the defendant, is not a competent witness to give evidence against the defendant in criminal proceedings. This issue is narrowed to some extent in the context of an extradition matter, but nonetheless the principle remains the same.

3. This is an old chestnut and one that hopefully will not be pulled out of the fire again. It is not the law and indeed has never been the law. As Boreham J. said in the extradition case of R.v. Pentonville Prison Governor ex Parte Schneider and another (1981) 73 Cr.App R. 200 at 212

"It seems to us that the following conclusions can properly be drawn from this line of authority : (a) that an accomplice is a competent witness - save perhaps when he is both indicted and tried with the defendant. Certainly there is no authority for the proposition that an accomplice who has been charged but not dealt with is not competent. Indeed, Windsor v. R (1866) 1 LR(QB) 390 remains an authority against that proposition; (b) that there is no rule of law which renders the evidence of an accomplice - even one who has been charged but not tried - inadmissible. The rules referred to in Pipe and Turner are rules of practice and not rules of law. All of the authorities from Windsor v. R onward - with the possible exception of Pipe - are to the same effect. In our view there is no conflict of principle between the decisions in Pipe and Turner If there is, then we consider Tuner to be more in line with the earlier authorities and we would follow it."

4. It seems to me that this is as clear a statement of the law as is required. In each individual case it would be a matter for the trial judge, in the exercise of his discretion, to determine whether or not such a witness will give evidence in any particular case. But the competence of the witness can never be in question. Whether or not a magistrate in commital proceedings has the same discretion is not a matter I need to decide. If I did, I would undoubtedly answer in the negative.