THE QUEEN v. MARCELA M. DE GUZMAN

1986 No. 1044
(Criminal)

HEADNOTE

Corroboration - accomplice evidence - a statement made by an accused which is at variance with what an accomplice himself says is not evidence capable of affording corroboration of the accomplice's testimony unless it is proved that the statement is a lie by evidence aliunde.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1044 of 1986

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JUDGMENT

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1. This is an appeal against conviction. The appellant, a Filipina, was convicted of making a false representation to an Immigration Officer contrary to Section 42(1)(a) of the Immigration Ordinance, Cap. 115.

2. The case for the prosecution was that on the 22nd February 1986 she submitted to an Immigration Officer acting under Part III of the Ordinance a contract and other supporting documents with the intention of misleading that officer into believing that she had a valid contract of employment with P.W.2. The prosecution alleged that the contract was a sham and that in any event P.W.2 could not have met the financial requirements for him to be regarded as an employer. It is not necessary in this case to set out the facts in any detail. This type of case is only too common in Hong Kong and frequently appears before these courts.

3. Evidence was given in the trial by an employment agent and the bogus proposed employer that they were convicted of offences arising out of this deception under the same Ordinance. They were accomplices so far as the appellant was concerned and the learned magistrate recognised that fact and the need for corroboration. It is argued very succinctly by Mr Payne on this appeal that the learned magistrate erred in her approach as to corroborative evidence in the trial. It is said she referred to lies made by the appellant in her statement, Exhibit P1 as affording corroboration of the accomplices' evidence. That statement was made on the 22nd of July 1986 but whether it contained lies or not depended ultimately on whether she believed the evidence of the accomplices.

4. Corroboration needs to come from an independent source and it is contended that she erred by treating those lies as corroboration when there was no independent evidence to show that the statements did contain lies, apart from the testimony of the accomplices themselves. If that were the case, then clearly the point made by Mr Payne must be upheld for indeed his argument is sound in law, since a statement made by an accused which is at variance with what an accomplice himself says is not evidence capable of affording corroboration of the accomplice's testimony unless it is proved that the statement is a lie by evidence aliunde. Mere belief by the magistrate that 'it is not true does not fulfill the requirement.

5. Mr Whitehouse on the other hand contends that the reasons given by the learned magistrate for convicting the appellant were not such as to display that error. He has referred this court to various passages in her Statement of Findings including that appearing on page 86 where she said :-

"I bear in mind that in a criminal trial, the burden is upon the Crown to prove their case beyond reasonable doubt. Having warned myself of the danger in relying on the evidence of P.W.1 and P.W.2 alone, and having given full weight to that warning and having seen and heard P. W.1 and P.W.2 when they gave evidence, I am satisfied that they are truthful and reliable witnesses."

6. There is a full stop after this. After this she said:

"I also direct myself that lies themselves do not prove guilt when I examined the contents of Exhibits P1, P9 and D5."

That was by way of an addendum. I am fully satisfied that she fully accepted the evidence of both P.W.1 and P.W.2 as truthful and this was itself sufficient for her to convict the appellant of this offence.

7. The appellant herself did not give evidence and in consequence there was no evidence from her which the magistrate was obliged to consider. In these circumstances, this appeal against conviction is dismissed.

Mr Whitehouse for the Crown/Respondent

Mr Ian Payne (Melville Boase & Co.) assigned for the appellant