TNAG-0487-FCO40-552-Review-of-death-sentence-in-Hong-Kong-1974 — Page 116

Mr. Downey, for the 4th appellant, said that it was not strictly true to say that a co-accused is an accomplice though the evidence might show that to be the case; the courts, counsel said, hesitated to describe a co-accused as an accomplice because that might prejudge the issue but where the fact was there the courts should give a warning as to corroboration and, whilst the warning had certainly been given, it was inadequate in that the jury had not been told the meaning of corroboration and not been told that

it must be evidence which incriminated the accused person in a material particular. Having told the jury that there should be independent testimony and that they might well think that there was such testimony, it was then the duty of the commissioner to give the jury some inkling of what that independent testimony was.

In support of this proposition Mr. Downey cited the case (1)

O

In that case Diplock, L.J., quoted Edmund-Davies, J.

(2)

of Russell

in the case of Prater

"It is desirable

the word 'desirable'

- and I emphasise

in cases where

a person may be regarded as having some purpose of his own to serve, the warning

against uncorroborated evidence should be

given. if

(3)

In the case of Stannard it was said that it was at most

a rule of practice that a judge, when summing up a case where two or more

defendants have given evidence parts of which reflect on the case

of one or of the other defendants should warn the jury in similar

terms to those which, as a rule, are proper to be employed regarding

the evidence of accomplices.

Thus the position is that it is desirable as a matter of

practice, but not essential as a rule of law, to give the warning

where an accused person has given evidence inculpating a co-accused.

The purpose of the warning was expressly said in Russell to be

"to remind the jury that an accomplice may have some purpose of his

own to serve in throwing the blame on a fellow-accused". That

purpose may or may not be apparent from the evidence. Indeed in

the present case there is nothing to suggest any purpose that the 5th appellant might have thought he was serving unless he felt that by extending the number of those taking part he pro rata diminished his own responsibility. His evidence against the (1) (1968) 52 Cr. App. R. 147 (2) (1960) 44 Cr. App. R. 83 (3) (1964) 48 Cr. App. R. 81.