NG KIN-TUNG and Another v. R.

IN THE COURT OF APPEAL

1990 No. 1
(Criminal)

HEADNOTE

Nature of corroborative evidence canvassed - court findings considered - whether such evidence could be properly said to have been 'prejudicial' in a way which would have justified the judge in refusing to admit it.

IN THE COURT OF APPEAL

1990 No. 1
(Criminal)

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The two applicants were convicted after trial before Sears J. and a jury on 5th December 1989 on one count of robbery of the Geneva Watch Co. in Tsimshatsui, one count of possession of arms at the time of committing that robbery and five counts of shooting at various police officers with intent to resist lawful apprehension. They were sentenced to death in respect of the count of murder, to life on the counts of robbery and shooting and to imprisonment for ten years on the count of possession of arms.

3. This appeal is from the verdicts at their second trial which was a re-trial after a successful appeal against convictions entered after their first trial on 10th November 1987 before de Basto J. and a jury. The offences were, however, committed as long ago as 9th August 1981, over 12 years ago. At the trial, the principal Crown evidence came from Tam Chi-pang, an accomplice, who gave his evidence under immunity.

4. It was the Crown case that on 9th August 1981, four men entered the shop of the Geneva Watch Company at the junction of Carnarvon and Nathan Road, Tsimshatsui. The four men were masked and each was armed with a pistol. One of the four was the accomplice and two of the others were the two applicants before us today. Having entered the shop they broke the showcase and stole watches to the value of $1.3m. Outside the shop, two other members of the gang were acting as lookouts. They also were armed. As the robbery was proceeding, two police officers appeared and shots were fired. The robbers then escaped making use of two hijacked vehicles and exchanging a large number of shots with police officers. A Pakistani auxiliary police constable was shot dead and a member of the public was wounded. The accomplice was also wounded but this was apparently by an accidental self-inflicted shot.

5. At the trial the accomplice gave evidence telling of the preparations for the robbery itself and of the consequent meetings of members of the gang after the robbery. The Crown relied, as I have already said, principally upon this evidence but also relied upon the fact that when the applicants were arrested in February 1984, some two years and seven months after the offences, they were found to be in joint possession of two Colt .45 pistols, Exh.41 and 42. This joint possession was an admitted fact pursuant to s.65C of the Criminal Procedure Ordinance. In the statement of admitted facts, the following paragraph appears:

"That on the 5th February 1984 in Flat 2303 Wun Sha Garden, Wun Sha Street, Causeway Bay, Hong Kong the first accused LEUNG Chi-yuen, second accused NG Kin-tung and third accused LEUNG Kwok-tung were in joint possession of the following arms:

(1) Item A3 (Exh. No.41) a Colt Model 1911A1 semi-automatic pistol in .45 ACP Calibre. This semi-automatic pistol was seized by police officers from the top of a bed in a bedroom in the flat. Immediately prior to the seizure the first accused and second accused and one other man were inside this bedroom.

(2) Item A15 (Exh. No. 42) Colt Model No. 1911A1 in .45 ACP Caliber. This semi-automatic pistol was seized by police officers from a shelf in a bedroom in the flat. Immediately prior to seizure the third accused was the only person inside this bedroom."

6. There was also evidence, which was not an admitted fact, that a Beretta .25 pistol, Exh. 78 at the trial, was recovered from factory premises in Kwai Chung where it had been deposited by a man giving the 2nd applicant's name and answering to his description.

7. At trial the ballistics expert called by the Crown said that he was satisfied that the three guns found were among those which had been used in the robbery. Neither of the applicants gave or called evidence.

8. The grounds argued by Mr. Oderberg who appeared for the applicants can be summarized as follows. Firstly that the evidence of the finding of the firearms should not have been admitted either because it had no probative value as regards the issues before the jury or because, given that it had some probative value, this was so outweighed by its prejudicial value that the judge should have excluded it from the jury's consideration. Secondly, that the admission in the statement of admitted facts that the applicants were in "joint possession" of the two firearms was not an admission that could properly be made under s.65C. It was submitted that it was an admission as to a matter of law and that s.65C only allows admissions as to matters of facts of which evidence might otherwise have been given. Thirdly, that the evidence of the finding of the firearms was not capable of corroborating the evidence of the accomplice Tam and the trial judge erred when telling the jury that they could so use it.

9. As to the suggested improper admission under s.65C, we consider that we need say no more than that we are satisfied that the admission was properly made. The terms used were no more than a shorthand way of indicating that the applicants were admitting facts, i.e. knowledge and control, which were, in law, sufficient to establish that they were in possession of the weapons.

10. We turn to the other matters argued by Mr. Oderberg.

11. The issue of substance was whether the admitted evidence of joint possession of the two firearms was admissible to corroborate the evidence of the accomplice. It was his evidence that guns were used in the robbery by the applicants. Two years and seven months later the applicants were found with guns similar in appearance to those described by the accomplice which the ballistics expert said were among those used in the robbery. It is submitted that the evidence of joint possession should not have been placed before the jury because, after such a lapse of time, no conclusive inference could be drawn that the guns had been in the possession of the applicants at the time of the robbery. The task of Mr. Oderberg when making this submission was not made easier by the fact that counsel at trial had conceded that the evidence was capable of being corroboration.

12. In his summing-up, Sears J. made the following references to this matter. He said firstly:

"Now if you would look at the Statement of Agreed Facts, you will see what is called 'A. Possession of Arms'. Now, the evidence which is capable of amounting to corroboration, members of the jury, is as follows:

Exhibits 41 and 42, which were found on February 5th, 1984, in the joint possession of 1st, 2nd and 3rd defendants, coupled with the evidence of the ballistic witnesses, is capable of amounting to corroboration of TAM's evidence against all defendants.

The .25 Beretta, Exhibit 78, which was found in the cockloft of the premises of LEUNG Kwai-yiu, coupled with the ballistics evidence, is capable of amounting to corroboration of TAM's evidence against the 3rd defendant.

These are the only two portions of evidence capable of corroborating the witness TAM, and I stress that."

The judge went on later to say:

"So, members of the jury, when you have to examine the important issue as to whether or not this evidence does in fact corroborate the evidence of TAM, you must bear in mind the answers that Mr. Cimino gave to Mr. Westbrook and the point that Mr. Corrigan has put forward, namely, that guns do change hands and different participants may use the same gun. That is essentially a question of fact for you. It is not for me to tell you what to do or to express an opinion one way or the other. Those are matters essentially for you, members of the jury. You must use your common sense. Look at all the facts surrounding the finding of those guns. Bear in mind the points that have been put to you by Mr. Corrigan in his speech and also what the witnesses say and just ask yourself this question then: Are we sure that the finding of those guns in 1984, coupled with the ballistics evidence, makes us sure that this corroborates - this confirms in a material particular that the defendants committed the offence of robbery?

The second piece of evidence concerns the .25 Beretta. That, you may recollect, is a very small gun that Mr. Cimino held up to show you and that was found also in February, 1984. The evidence on this is - the gentleman is Mr. LEUNG Kwai-yiu - and he told you - I am sure you remember his evidence, members of the jury, it was not very long ago - he told you that he had come into Hong Kong in 1979, and on the 3rd February, that is some three days after the Po Sang robbery, he got a phone call and he said -

'... Someone brought along two boxes of stuffs to my factory. Two people brought along two brief-cases, a travelling brief-case ...'

- do you remember the other one he described as a James Bond type of case, which apparently is a rectangular type of brief-case. He said he met them at about mid-day; two men brought them in; one was called YEUNG and his nickname was Man Kai Tung. He said -

'... I had seen him I think in Hong Kong or China ...'

but you may think his recollection was very poor. Two men left and he discovered that they contained firearms - there were quite a large number of guns, if you will remember - and he was given 8 years' imprisonment for the offence presumably of being unlawfully in possession of firearms. He was asked whether he could see the person in Court, Man Kai Tung - was Man Kai Tung in Court?', he looked around the Court and said he was not there.

So you will have to examine his evidence. Again it is a question of fact for you. You bear in mind that some person can give a false name. If someone goes along and gives someone else's name, it does not prove that that person did it. ....................

There is no identification. One of the most surprising features of this case, members of the jury, which I will point out later, is that there has been no identification here of anybody. There is no identification of the person; there is no description of the person. Although this evidence therefore is capable of providing corroboration as far as the 3rd defendant only is concerned, you may think that this evidence cannot make you sure that it was the 3rd defendant who brought the gun along. It is a matter for you and not for me. But I would advise you to concentrate on the first matter here, namely, the two .45 Colt guns that were found in the possession of all of the defendants."

13. The judge, fairly in our view, concentrated the jury's mind upon the Colt guns which, it was admitted were in the joint possession of the two applicants. He went on to say:

"I have given you already what is called the standard direction that it is unsafe to convict on the uncorroborated evidence of an accomplice. But in this case I consider it my duty to tell you that if you consider that there in fact is no corroboration, then you should acquit. I am not permitted to direct you to do that because it is for the jury and not the judges to try cases. But there are in this case a number of unusual circumstances which would make it highly dangerous for you to convict on TAM's uncorroborated evidence."

The judge then detailed those matters.

14. The issue as to whether the evidence was capable of being corroboration was referred to by Penlington J.A. when giving the judgment of the court in the appeal after the first trial: see The Queen v. Leung Chi Yuen and others Criminal Appeal No. 576 of 1987 (29th June 1989, unreported). He said at p.13:

"So far as D1, D2 and D3 were concerned there was the evidence of the possession of pistols which were not only of the same calibre as the ones used in the robbery but, according to ballistics evidence, were the actual weapons which had been so used. There was however a possibility that the guns had changed hands, as may happen within criminal gangs in Hong Kong, there being a gap of over two years between the commission of the robbery and the guns being found. While these were factors to be considered by the jury, this evidence was clearly capable of corroborating Tam."

15. Penlington, J.A. later, when dealing with another matter, referred to the classic definition of corroboration given by Lord Reading in R. v. Baskerville (1916) 2 K.B. 658, which is as follows:

"Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him that is which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it."

16. The argument of Mr. Oderberg was that the issue to be determined at trial as regards this evidence was whether, given the lapse of time, it had any probative value as to the offences of 9th August 1981. He submitted that it did not and should, therefore, not have been placed before the jury. His argument, when analysed, however, was, we are satisfied, based upon the premise that this issue had to be determined by looking at the evidence standing alone. This, however, did not correctly frame the issue before the court. When deciding whether to admit the evidence, the judge had to ask himself whether, looking at the evidence itself and the evidence of the accomplice, it was, in the words of Lord Reading,

"evidence which implicates (them) that is which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant(s) committed it."

The evidence of the accomplice was that the offences had been committed and that they had been committed by the applicants. Did the finding of the guns in the possession of the applicants confirm that evidence? It is our view that it unarguably did. We are satisfied that the trial judge was right to admit the evidence and was right to instruct the jury in the terms which he used. We add only that, for the reasons which we have set out above, we are quite satisfied that no criticism can properly be made of the admission by counsel at trial that the finding of the guns was potentially corroborative evidence.

17. We turn finally to the submission that if the evidence as to the finding of the firearms was admissible, its prejudicial value so outweighed its probative value that it should have been excluded. It was clearly of telling probative value and could only be described by the applicants as being "prejudicial" in so far as it was gravely damaging to their case. That does not give rise to prejudice of the kind which would give the judge a discretion to refuse to admit the evidence.

18. We are satisfied that there is nothing in any of the grounds that had been argued before us and that the applications for leave to appeal against the convictions must be dismissed.