THE QUEEN v. CHAI SHANG YI AND OTHERS

_______

_______________

J U D G M E N T

_______________

Penlington, J.A. delivered the judgment of the Court:

1. The Applicants were convicted by Daniell, D.J. and a jury on 14th April 1988 on a charge of conspiring to utter forged US$100 banknotes to the value of US$2 million, knowing the same to be forged and with intent to defraud.

2. The 1st and 2nd Applicants (D1 and D2) are represented by Mr. G.J.X. McCoy and the 3rd Applicant (D3) by Mr. Leo Remedios. Several grounds of appeal were filed on behalf of D1 and D2 but at the hearing Mr. McCoy relied only on two. Firstly that a statement trade by D1 was wrongly admitted in evidence because it had been made well after the office in charge of the case had ample evidence to charge D1 with the offence. Secondly in respect of both D1 and D2 that tape recordings glade of conversations between the applicants and a prosecution witness, Mr. R.I. Hislop, were so poor in quality they should not have been admitted at all and even if they were the jury were wrongly directed as to how they should use transcripts of those tapes which were supplied to them. Mr. Remedios adopts these ground and the arguements put forward by Mr. McCoy but adds a further one of failure to adequately direct the jury on the question of the Applicant's intent to defraud. Mr. McCoy adopts the arguments put forward by Mr. Remedios on this ground.

3. The case for the Crown was that at the introduction of a man called Urich D1 met Mr. Hislop in Denver, U.S.A., in 1987. Mr. Hislop held himself out as being interested in buying forged U.S. banknotes whereas in fact he was and is an agent working for the United States Treasury in protecting its currency. In the course of a conversation in a hotel D1 agreed that he could supply $2 million worth of U.S. currency, the purchase price to be 30% of the face value. In the course of this conversation D1 telephoned D2, who was in Hong Kong, and Mr. Hislop had a conversation with him as well. Both D1 and D2 told Mr. Hislop that he should pay a deposit of US$30,000 into D2's bank account. Mr. Hislop later flew to Hong Kong and had several meetings with D1 and D2 in the Furama Hotel. D2 was also taken to the Hong Kong and Shanghai Bank and shown a deposit box in the name of Mr. Hislop which contained a very large sum in U.S. currency.

4. These negotiations however came to nothing and eventually Mr. Hislop left Hong Kong and returned to the U.S.A., having however said hat he would keep contact with D1 by telephone regarding the possibility of getting delivery of forged notes. There were in fact many such promises of delivery but again nothing eventuated. However, in October, Mr. Hislop flew back to Hong Kong and stayed in the Harbour hotel where he equipped his room with listening devices. The tapes of the conversation which took place there were produced, as were other tapes which were from recorders carried by Mr. Hislop at a meeting on 14th October 1987 in the coffee shop of the Excelsior Hotel. All three Defendants were present on that occasion and were then arrested.

5. The Crown relied substantially on the evidence given by Mr. Hislop on the tape recordings of the alleged incriminating conversation which took place and on confession statements that were made by D1 and D3, following their arrest.

6. The first ground of appeal taken is in respect of D1 and his confession statement which was admitted into evidence by the trial judge following a lengthy voir dire. The complaint is that the officer in charge of the case refrained from formally charging D1 in order co extract this statement from him when he already had ample evidence.  It was submitted that prior to the Applicants' arrest in the coffee shop the police had the evidence of Mr. Hislop, the tape recordings of the conversations which had taken place in the hotel room, evidence of police surveillance officers and also that a forged US$100 which had been produced and handed over to Mr. Hislop by D1 in Denver.

7. In making his ruling on this point the trial judge said that he was satisfied that there had been a breach of the judge's rules in that the applicants had not been charged as soon as the police had sufficient information for them to do so. However, he went on to say that nevertheless there was nothing oppressive or unfair in the conduct of the police officers which would in any way suggest that the will of any of the applicants was sapped or overborne by the officers who were conducting the investigation. He concluded:

"In my view the police in relation to these statements behaved fairly towards each of these defendants and I could find no ground on which I could properly exercise ray discretion to exclude any of those statements.

8. Here, the trial judge clearly was of the view that the statement was Voluntary. As laid down in R.v. Lam Yip Ying [1984] H.K.L.R. 419 he should then go on to consider the statement should, nevertheless, be excluded because it was unfair. However as was said by Roberts, C.J. in that case, the residual discretion to exclude a statement because it was unfair is a discretion which should not be exercised without very cogent reasons for taking such a course. At page 424 he said:

"The power to exclude confessions on the ground of unfairness should seldom be employed. Firstly, because it involves the judge in withdrawing relevant and admissible evidence from the jury, whose function it is to weigh such evidence. Secondly, because In almost all cases, the kind of conduct which would constitute 'unfairness' should already have excluded the confession as involuntary.

9. Here, Mr. McCoy relies on the decision in R. v. Holme, [1981] 2 All E.R. 612. That was an application for habeas corpus on the basis that a person had been arrested but neither charged nor brought before a magistrate within the time period laid down in the Magiscrate's Court Act 1952. Mr. McCoy relies particularly on the dicta of Donaldson, L.J. at 615 where, although clearly he had sympathy for the police action because they wished to make enquiries concerning other offences which may have been committed by the detainee, said:

"Suffice it to say that, whilst there may well be strong grounds for amending the law, the amendment must be achieved in a constitutional manner and not by a process of modification in practice. The law at present is that, as soon as there is enough evidence to prefer a charge, the arrested person must without delay be charged or informed that he may be prosecuted for the offence. The principle is subject to no qualification and no qualification should be introduced by, for example, setting an unduly high standard of 'sufficient evidence'."

10. While not in any way disagreeing with that, we consider that the decision in Holmes, which was a constitutional case being an application for habeas corpus, is not relevant to facts of this application. In Holmes the defendant had been arrested and was being held in custody. He had neither been charged nor brought before a magistiate. His solicitors then applied for a writ of habeas corpus, the defendant having been at that stage in custody from 11.30 am on a Tuesday to 10.30 am on the following Friday. It was held that he should have been so charged or brought before a magistrate but there was no question arose as to the admissibility of statements made while lie was wrongfully detained. Here the Trial judge had to decide firstly whether these statements had been shown beyond reasonable doubt to be voluntary. That there had been a breach of the Judges Rules in not preferring a charge when there was sufficient evidence to do so was a factor to be taken into consideration but it has been clear in Hong Kong since the decision in R. v. Leung Cheuk Faw & Others Cr.App. 964 of 1983 that it is only one factor and a judge may nevertheless find statements to be voluntary and therefore admissible subject to the residual discretion on the ground of unfairness. The court approved the earlier dicta of Roberts, C.J. in Lo Shun Wah & Others v. R. [1980] H.K.L.R. 253 at 256 where he said:

"However, this approach has been modified during the last decade. The principle is now firmly established that infringements of the Judges Rules are only one element, albeit an important one, to be considered in deciding the central question which is whether or not the Crown has established the voluntary nature of the admission."

11. Mr. McCoy argues that even if the statement was voluntary it should have been excluded as being unfair. He says that if the investigating officers had charged the Applicant at the proper time it may well be that he would never have made the statement. We are satisfied however that on the facts here there was nothing which, should have caused the trial judge to exercise his discretion to exclude on the basis of unfairness, bearing in mind the principles laid down in Lam Yip Ying.

12. The second ground of appeal argued by Mr. McCoy concerns the quality of the tapes and a transcript of them. No objection was taken at trial to the introduction of either the tapes or of the transcripts which latter clearly were necessary because the recordings themselves were difficult to follow and they were partly in English and partly in Chinese. Whilst D1 and D2 speak good English D3 does not. These transcripts were certified, where they were translations of the Chinese recorded on the tape, but they were not formally admitted pursuant to Section 65C of the Evidence ordinance as being accurate transcripts of the capes. A complaint is made that the trial judge should not have directed the jury in relation do these tapes in the way that he did which was:

"the real evidence is in tine tape and that transcript is an aide-memoire to assist you but you really cannot do without it because there are so many distortions on the tap that you have to place some reliance on the actual transcript." (emphasis supplied)

13. There was evidence that Mr. Hislop himself had listened to the tapes and had played a part in the preparation of the transcript. This he has had done, he said, to the best of his ability. With regard to one tape in particular which was recorded in the coffee shop of tine Excelsior Hotel clearly there was considerable difficulty in the preparation of the transcript.

14. There is clear authority that the tape recording itself is relevant evidence. This was settled in Liu Kwok Wah & Others v.  R. [1969] H.K.L.R. 595. It is also clear from that decision that a transcript can be used as an aide-memoire to overcome the difficulty of having to replay the tape over and over again. Support for this is found in R. v. Magsud Al [1965] 2 All E.R. 464, Guidance on the use of transcripts of tape-recordings was provided by the Court of Appeal in R. v. Rampling The Times August 29 1987, which is referred to - Archbold 43rd Ed. para. 15.40 at p.1234. Drake J. in delivering the judgment of the Court said, inter alia:

"5.     The transcript of the tape recording could be introduced by the interviewing office who should, before the trial, have checked it against the tape recording for accuracy. The tape recording was the evidence in the case and could be made an exhibit. The transcript was used in the same way as a schedule was often used, as a convenience to the jury. The transcript was not in itself evidence.

6.     The use of the transcript was an administrative matter to be decided in his discretion by the trial judge. In many cases the defendant would agree to the use of the transcript and would not require the tape recording to be played at all. In such cases the transcript would be read out by the officer who produced it just as lie would read out a contemporaneous note. However, the defendant was entitled if he so wished or required to have the cape or any part of it played to the jury.

7.     If the tape or any part of it was played, it was for the judge to decide whether the jury should have the transcript in order to follow the tape and to take it with them when they retired. The use of the transcript within the judge's discretion was not dependent on the consent of the defendant or that of the prosecution.

    Each case had to be decided by the judge in his discretion on its own facts.

    However, in the collective experience of who court a transcript was usually of very considerable value to the jury to follow the evidence and take to the jury room when they retired."

This decision finds support in Butera v. D.P.P. [1987] 62 Aust.L.J.R. 7 and R. v. Menzies (1982) 1 H.Z.L.R. 40 per Cooke J. at 49.

15. Here while what the trial judge said as to placing reliance on the taps went too far in that the transcripts themselves were not evidence, we do not consider that it could have resulted in a miscarriage of justice. There was no suggestion, either by evidence or by way of cross-examination that the transcripts did not faithfully record what was said at the conversations, though Mr. Hislop, who was present at the conversation, gave evidence and so could have been cross-examined on that matter. The case proceeded on the basis that the transcripts were accurate. Accordingly it is a proper case for the application of the proviso.

16. For D3. Mr. Remedios adopts the arguments put forward by Mr. McCoy for D1 and D2 but also argues that there was an omission to direct the jury sufficiently on the question Of the necessary intent to defraud which is an ingredient of the offence. The judge did direct the jury that`intent to defraud' meant intention to deprive by deceit, a dishonest intention to cause another economic loss, to induce him to act to his injury.

17. Here the defence was than D1 had been defrauded by Mr. Hislop's associate Urich. He was trying to recover his money and he and the other applicants never had any intention to sell forged banknotes. They were simply trying to extract that money from Mr. Hislop on the false pretence that they were in a position to supply the forged notes.

18. The question of whether, even if forged notes were to be supplied, this was done with intent to defraud was never a real issue at the trial. We consider that if the jury was satisfied, as they were, there was an agreement to supply forged US$100 to Mr. Hislop that it would be a necessary implication from that that the ultimate persons who came into possession of the forged notes, be they shopkeepers or others, would necessarily be defrauded when the forgeries were discovered. We do not consider that in the circumstances of this particular case any further direction on the question of intention to defraud was required.

19. We are therefore satisfied that the grounds of appeal which had been argued before us on behalf of each of the Applicant must fail, although they were most certainly arguable. We therefore grant the application for leave to appeal against conviction in respect of each of the applicant, treat this application as the hearing of the appeal which is however dismissed.