Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 11 January 2000

Date of Determination: 11 January 2000

______________________________

DETERMINATION

______________________________

Mr Justice Ching PJ:

1. These five applicants seek to appeal against convictions in the District Court out of time. The offences were conspiracies to offeradvantages contrary to section 159A of the Crimes Ordinance, Cap. 200, and section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201, and to accept advantages contrary to the same section 159A and section 4(2)(a) of the Crimes Ordinance. They were all serving police officers. The conspiracies alleged were that they had agreed to arrange for some candidates to be givenadvance information of the questions they would be asked at interviews for promotion to the rank of sergeant. The four major witnessesagainst them were men two of whom had pleaded guilty to corruption offences and were either about to complete the sentence imposedor had already done so. The other two gave evidence under immunity.

2. A single ground of appeal has been put forward on their behalf. It reads as follows,

“The Applicants seek leave to appeal to the Court of Appeal (sic) on the grounds that a substantial and grave injustice has been doneto them by the District Judge’s failure to appreciate that evidence which he identified as amounting to corroboration of the accompliceswas not in law capable of amounting to corroboration and the Court of Appeal ignored the plain language used by the District Judgein his Reasons for Verdict explaining and describing his search for corroboration of the accomplices by imputing to the judge a differentmotivation, namely a desire on his part to identify in the evidence of the accomplices ‘confirmatory evidence’ only.”

The applications are therefore based on the ground that there has been a substantial and grave injustice and Mr Dykes SC who appearsfor the applicants accepts that he has a high hurdle to surmount. The Notice of Motion goes on to complain that the gloss put onthe judge’s words by the Court of Appeal was unwarranted and that the judge had been looking for corroboration in the technical sense.

3. It is as well, from the outset, to bear in mind the provisions of section 60 of the Criminal Procedure Ordinance, Cap. 221, that,

“(1) Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give the jury a warning aboutconvicting the accused on the uncorroborated evidence of a person merely because that person is an alleged accomplice of the accusedis hereby abrogated.

(2) Any requirement that is applicable at a trial by a judge or magistrate and corresponds to the requirement mentioned in subsection(1) is hereby abrogated.”

The present case falls within subsection (2). The District Court judge was therefore not obliged to warn himself of the dangers ofconvicting on the uncorroborated evidence of accomplices and it follows that he was not obliged to seek any corroboration. The meaningof the section has been well established in England and in Hong Kong. The old common law rule requiring the jury to be warned, ora single judge warning himself, of the dangers of convicting upon the uncorroborated evidence of accomplices who cannot corroboratethe evidence of each other has been abolished. It remains for the judge, when he is sitting alone, to determine whether or not hebelieves the evidence of accomplice witnesses to the requisite standard and whether he feels that he should seek corroboration.

4. When dealing with the evidence of the first accomplice witness, P.W.2 Hui Kwok Leung, the judge said,

“I say straight away that I have approached the evidence of Hui, as I have all of the accomplice evidence in this case, with extremecaution.”

A few lines later he said,

“I am aware that the rules in relation to corroboration of accomplices has (sic) been abolished but I have, wherever possible withHui, as with other accomplices, looked for independent supporting evidence.”

Later in the course of his forty three page Reasons for Verdict it is true he used the word ‘corroborated’, ‘corroborating’, ‘confirmed’or ‘confirming’ a number of times. It is argued that the judge was clearly using the word ‘corroborate’ or its derivatives in a technicalsense and criticism is levelled at the Court of Appeal for having put an unwarranted gloss and a charitable interpretation on thesewords by saying that the judge was looking only for confirmatory evidence.

5. In the end, what is important is that the judge believed the evidence of the accomplices. Having done that, he was in a positionto convict without going further to search for corroboration. He found confirmation in the fact that substantial and key evidencefrom them was essentially the same in its elaborate detail. He dismissed the possibility that they were concocted stories. The Courtof Appeal concluded on this point,

“We find no substance to the suggestion that the judge was attempting to apply the rules as they used to relate to corroboration.He was merely looking wherever possible, as he stated he was doing, for evidence to support (two of the accomplices).”

It is apparent, as the Court of Appeal said, that on occasion the judge used the word ‘corroborated’ loosely but a fair reading ofthe Reasons for Verdict as a whole shows that this assessment is accurate.

6. If the single point put forward were arguable we would have been inclined to overlook the fact that the applications are out of time.In the circumstances, however, we refuse to grant leave to appeal out of time and the applications are dismissed.

Representation:

Mr Philip Dykes SC and Mr Philip Wong (instructed by Messrs Anthony Kwan & Co.) for the applicants

Mr John Reading SC, Acting DDPP and Mr Kevin Zervos, SADPP (of Department of Justice) for the respondent