HKSAR v. KAN, BRIAN PING CHEE

FAMC No. 64 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 48 OF 2012)

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.  The applicant was convicted of engaging in corrupt conduct at an election, contrary to s.6 and 11(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554. He applied for leave to appeal on the substantial and grave injustice ground. At the conclusion of the hearing, we dismissed his application. These are our reasons.

The prosecution case

2.  The applicant was a candidate for the 2011 election of the chairman of the Sheung Shui Rural Committee. PW1 was one of the 46 village representatives who were entitled to vote in the election. On 27 February 2011, the applicant went to PW1’s store to seek his support. While the applicant was waiting for PW1 in the store, PW2 (PW1’s wife) noticed the applicant walking around and pushing open the door to a mahjong room inside the store. After PW1’s return, he went with the applicant into the mahjong room where the applicant asked for his support. When the applicant was leaving the store, PW1 was told that the applicant had left $130,000 in the mahjong room. PW1 wanted to return the money to the applicant, but the applicant had already left. PW1 then put the money in a white plastic bag and placed it in a box underneath the cashier. At around 1 p.m., PW2 took the money out of the plastic bag, counted the money and then put it back in the same place. At 7 p.m., after he had closed the store, PW1 also counted the money and found there was indeed $130,000 as the applicant said. The money was in $1000 notes.

3.  On 2 March 2011, PW1 went to consult PW3, another candidate in the election but told PW3 a slightly different story: that he was approached by the applicant the day before and was given $100,000. Upon PW3’s advice, he reported the matter to the ICAC.

4.  The applicant did not give evidence. His case as put to the prosecution witnesses was that he had visited PW1 to seek PW1’s support in the election, but did not enter the mahjong room or put any money there and that PW1 and PW2 had fabricated their evidence against him.

The expert evidence

5.  Both the prosecution and the defence called expert witnesses in relation to the banknotes said to be left behind by the applicant in the mahjong room. PW4 testified that he found finger marks on the banknotes in question, but there were not sufficient characteristics of value to make any identification. PW5 was of the view that the chance of lifting a fingerprint of value on the banknotes was only 0.5%. However, it was their opinion that the absence of sufficient finger marks of value could not show that PW1 or PW2 had not counted the money.

6.  On the other hand, the defence expert, DW1, who was instructed to comment on the prosecution expert evidence, said he had conducted an experiment to show whether banknotes of a similar nature as the banknotes in question were capable of holding finger marks. He asked his assistants to “plant” finger marks on 10 banknotes and having examined 5 of them, found finger marks of value on 2. He drew the conclusion that there was a 40% chance that this type of banknotes was capable of holding finger marks. He took the view that since the banknotes in question did not contain sufficient finger marks of value, this showed that PW1 and PW2 had not counted the money as they said.

Ground 1 – magistrate failing to analyze evidence or give reasons

7.  Mr Wong Man Kit SC, leading Mr Dick Lee, argues as his first ground of appeal that the magistrate had failed to analyze the evidence of PW1 and PW2 or to give reasons for accepting their evidence and that the appeal judge had adopted a flawed approach. In support of this argument, counsel refers to what he describes as two significant discrepancies in the evidence which the magistrate had failed to deal with:

(1)   The first relates to the time PW1 put the money into a white plastic bag. It is pointed out that in his statement to the ICAC, PW1 said it was only after he had counted the money at 7 p.m. that he then put the money in a white plastic bag. If this was the truth, it would be inherently improbable that PW2 could have taken the money out of a white plastic bag and counted it at around 1 p.m. Thus, it is submitted, PW1’s evidence in court (that he had put the money into a white plastic bag before he put it near the cashier) was clearly the result of collusion between PW1 and PW2.

(2)   The second discrepancy relates to what PW1 said to PW3 about the day when the applicant had approached him and how much money the applicant had given him. PW1 explained under cross examination that he did not tell PW3 the correct information because he was afraid PW3 might threaten him with this matter. However, he had failed to explain how PW3 might do that. It is submitted that this is an important matter which casts doubt on PW1’s credibility.     

8.  Mr Wong argues that the magistrate did not say these discrepancies are “minor issues” and was wrong to consider that the evidence of PW1 and PW2 was consistent with the “main thrust and minor details”. He submits that the appeal judge accepted that the magistrate did not give sufficient reasons for accepting PW1 and PW2 but erred in affirming the magistrate’s decision. 

9.  There is no substance in this argument. We do not agree that these are significant discrepancies or that the magistrate had failed to consider them. Whether a discrepancy in a witness’ evidence is a significant discrepancy must be considered in the circumstances of the case, having regard, in particular, to the effect and importance the discrepancy may have in relation to the issues to be determined in the case and the witness’ evidence as a whole.

10.  The thrust of PW1’s evidence was that he was offered a bribe by the applicant as an inducement for voting for the applicant in the election; after he got hold of the money, he could not return it to the applicant; he did not count the money immediately but put it to one side; he said he did not know what to do at the time. Considered in that light, the evidence as to when the money was put into a white plastic bag could not possibly affect the thrust of his evidence or his credibility. The fact that he did not mention in his first statement to the ICAC that he had put the money in a white plastic bag before putting it away does not show that this did not happen; there might be various reasons for its omission in the statement. One simply cannot draw the inference as submitted by counsel that PW1 must have discussed his evidence with his wife or colluded with her.         

11.  Similarly, we do not think the fact that PW1 did not tell PW3 the full story about the applicant’s earlier approach to him is a significant discrepancy. There is no dispute that PW1 had spoken to PW3 before he decided to make a report to the ICAC against the applicant. He had given an explanation as to why he had not told PW3 everything and the magistrate was entitled to accept his explanation. We do not see how this could have any adverse effect on PW1’s evidence that he had been offered a bribe by the applicant to vote for him and had consulted PW3 before deciding what to do. 

12.  We do not think that the magistrate can be validly criticized for not expressly dealing with these relatively minor matters in his Statement of Findings. He had obviously examined all the evidence carefully with the discrepancies in mind. Nor can it be said that the judge was wrong in upholding the magistrate’s conclusion.

Ground 2 – lower courts’ approach to the experts’ evidence was flawed 

13.  With regard to this ground, Mr Wong submits that since the banknotes were relatively new, the probability of identifying finger marks on these banknotes should be much more than the 0.5% as suggested by PW5 and that based on the result of DW1’ experiment, there was a 40% chance of identifying finger marks of persons who had touched these banknotes. Yet, since only one finger mark (of an unknown person) was found on the banknotes, it was therefore unlikely that the banknotes had been individually counted. Accordingly, it is submitted that the evidence of PW1 and PW2 to the effect that they had separately counted the banknotes one by one was inconsistent with the evidence of PW4 and that this strongly suggested PW1 and PW2 were not telling the truth.

14.  We do not think this submission can be sustained. The figure of 0.5% as suggested by PW5 is clearly unhelpful since the witness did not clarify how this was arrived at. Neither was the opinion of DW1 which was based on the result of his experiment the purpose of which, as DW1 admitted, was only to ascertain the capability of the banknotes to retain finger marks. Since the manner in which fingerprints were planted on the banknotes used in the experiment was not the same as the manner in which PW1 and PW2 counted the banknotes (as indicated in their evidence) and the purpose of the experiment was entirely different from the test conducted by PW4, the result obtained by DW1 is, as correctly held by the judge, of limited use for the purpose of this case. But the unchallenged fact is that there were finger marks on the banknotes in question although there were insufficient characteristics for identification purposes. This might be due to various possible reasons which the magistrate had considered in detail. The absence of identifiable finger marks on the banknotes in question thus is neither here nor there and is certainly far from capable of leading to the inference that PW1 and PW2 must have lied when they said they had counted the money separately. There is nothing to substantiate the claim that the lower courts had erred in their approach to the expert evidence.

15.  The applicant has failed to show that there was a departure by the lower courts from accepted norms to his detriment. The application for leave must be dismissed.