HKSAR v. NG KAN WAI

CACC 377/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 377 OF 2009

(ON APPEAL FROM DCCC NO. 525 OF 2008)

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REASONS  FOR  JUDGMENT

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Hon Hartmann JA (giving the reasons for judgment of the Court):

Introduction

1.  On 19 October 2009, following a trial in the District Court before His Honour Judge Yip, the applicant was convicted of four charges brought under the Prevention of Bribery Ordinance, Cap 201.  He was sentenced to a total of 25 months imprisonment.  The applicant sought leave to appeal his conviction of each of the four charges.

2.  Having heard submissions, we dismissed the application saying that we would give our reasons later.  We do so now.

The charges

3.  At all material times, the applicant was employed as a supervisor by a group of companies – the BUC Group - which supplied meat products to the restaurant trade.  The applicant’s superior, one of the persons to whom he reported, was Kwok Shi Hing (‘Kwok’), a director of the BUC Group.

4.  Each of the charges of which the applicant was convicted concerned the payment of secret commissions.  These commissions were paid  to employees of restaurant businesses in order to induce those employees to purchase, or as a reward for purchasing, the products of the BUC Group, it being known that they were prohibited from soliciting or accepting such commissions.

5.  The first charge of which the applicant was convicted alleged that between August 2006 and August 2007, contrary to s.9(2)(a) and 12(1) of the Ordinance, he, together with his superior, Kwok, offered advantages in the form of secret commissions to a man named Au Yeung Wai Keung (‘Au Yeung’), an employee of the Kamboat Chinese Cuisine Company Ltd.

6.  The second charge of which he was convicted alleged that on or about 2 August 2007, contrary to the same provisions of the Ordinance, he offered a secret commission to Au Yeung Wai Keung, the person cited in the first charge, in the sum of $21,360.

7.  The third charge of which he was convicted alleged that between October 2006 and August 2007, contrary to s.9(1)(a) and 12(1) of the Ordinance and ss.159A and 159C of the Crimes Ordinance, Cap 200, he conspired with a man named Fung Siu Wah, an employee of the Hoi Tin Garden Restaurant, to enable Fung to receive secret commissions. 

8.  The fourth charge of which he was convicted alleged that between January and June 2007, contrary to s.9(2)(a) and 12(1) of the Ordinance and ss. 159A and 159C of the Crimes Ordinance, he conspired with Kwok, his superior in the BUC Group, to offer secret commissions to a man named Yeung Lit Wah , an employee of Café de Coral Holdings.

The applicant’s arrest

9.  At around lunchtime on 2 August 2007, ICAC officers witnessed (and video recorded) a meeting between the applicant and Au Yeung, the man cited in the first two charges detailed above.  The meeting took place in a restaurant.  During that meeting the applicant was seen to pass an envelope to Au Yeung.  After he had left the restaurant, Au Yeung was arrested.  The envelope was seized.  It contained cash in the sum of  $21,360 and a written breakdown of how that sum had been calculated.

10.  At about the same time, after he had left the restaurant, the applicant was also arrested.  He was taken down a side street for some initial questioning and was then taken to a nearby car park where he had left his car.  His car was searched and an attempt was then made to gain entry to his home to conduct a further search.  For reasons which have no bearing on this application, it was not possible to gain entry to the applicant's home.

11.  The applicant was then escorted to ICAC headquarters where, that same afternoon, between 3.53 and 4.40 p.m., he was interviewed under caution.  The interview was videotaped.  In the course of that interview the applicant made a number of admissions concerning the payment of secret commissions to senior staff of restaurant businesses as an inducement to purchase meat supplies from the BUC Group or as a reward for having made such purchases.

12.  Although at trial there was other evidence advanced by the prosecution, for example, further surveillance evidence and evidence of accounting records seized from the offices of the BUC Group, for all practical purposes the prosecution case was based on the admissions made by the applicant in the video recorded interview.  If the record of that interview was not admitted into evidence or if, having been admitted into evidence, no weight was given to it, the prosecution case - with the exception perhaps of the second charge, the one alleging payment of $21,360 on 2 August 2007 -would have foundered. 

13.  Central to the defence case was a challenge to the admissibility of the record of interview.  This was allied to the assertion that, if admitted into evidence, what was said in that record of interview should be given no weight.  As the judge noted in his Reasons for verdict:

“The defence do not rely on any lawful authority or reasonable excuse to do the acts in question. There are no defence witnesses on the general issue. The defence objects to the admissibility of the VIR [the video-taped interview record] and further argues that the contents of the VIR are unreliable or should be given no weight.”

14.  As it was, the judge found it proved beyond a reasonable doubt that the video recorded interview had been given voluntarily by the applicant and came to the further determination that fairness did not require its exclusion.  It was therefore admitted into evidence.  As to the evidential weight to be given to the video recorded interview, having heard all the evidence, the judge concluded that the contents of the interview could be accorded full weight.  As he said:

“There is nothing in the course of this whole trial to suggest that the contents of the VIR are anything but a truthful and accurate account of how [the applicant] bribed the various customers. Full weight can be attached to its contents.”

The grounds of appeal.

15.  All the grounds of appeal related to the findings of the judge, first, in admitting the video recorded interview into evidence and, second, in giving any weight to its contents.

16.  As to the issue of admissibility, the following submissions were made.  First, that the judge failed sufficiently to take into account material inconsistencies in the evidence of the prosecution witnesses, his findings being contrary to the weight of evidence.  Second, that the judge failed to give a balanced consideration to all the evidence relevant to the issue of admissibility, his preference for the prosecution evidence, despite its inherent weaknesses, and his rejection of the defence evidence, despite its inherent strengths, amounting to a reversal of the onus of proof.

17.  As to the issue of weight, there were no independent submissions going to the content of the interview.  The submissions as to weight mirrored those concerning admissibility; namely, that the judge erred in giving any weight to the interview when he should not have admitted it into evidence in the first place or, failing that, when he should have exercised his discretion to exclude it from evidence on the grounds of fairness. 

18.  As Mr. Graham Harris, counsel for the applicant, said, the various grounds of appeal overlapped.  Each, however, looked to what was really the single key issue in this application, namely, whether the judge was in error in finding, as he did, that the interview had been given voluntarily.

Evidence on the ‘special issue’ of admissibility

19.  Because this application was based on the contention that the judge failed to give a full, fair and balanced consideration of all the evidence concerning the circumstances in which the video recorded statement was made, it is necessary to rehearse the relevant evidence at some length.

20.  Concerning the ‘special issue’ of admissibility, the principal prosecution witnesses were the three ICAC officers who made up the applicant's arrest team.  They were Daniel Li (‘PW10’), a Senior Investigating Officer, and two Assistant Investigators, Henry Lung (‘PW11’) and Joyce To (‘PW12’).

21.  The testimony of Li, the leader of the team, was to the following effect.  He witnessed the applicant passing an envelope to Au Yeung in the restaurant.  After the applicant had left the restaurant, he arrested him.  He did so by placing a hand on the applicant's shoulder, revealing his warrant card and declaring arrest for offering advantages contrary to s.9 of the Prevention of Bribery Ordinance.  The applicant was asked if he understood and said that he did.  Li then cautioned the applicant.

22.  It was put to Li that, at the time of the arrest, Lung, PW11, grabbed the applicant around the neck, holding him in a ‘neck lock’.  The applicant himself, when he gave evidence on the special issue, said that initially he put up some slight resistance and was held in a neck lock for an extended period of time; to use his words: “all along, continuously, non-stop.” This was denied by the arresting officers.

23.  As the arrest had taken place on a main road, the applicant was then escorted to a quieter place, down a side street, where initial questioning took place.

24.  The applicant testified that, as they were walking, he was able to see Au Yeung being searched after his arrest.  Li and the other two team members denied seeing this.

25.  When they reached the spot where the applicant was initially questioned, it was Li’s evidence that he informed the applicant that he had seen him handing over an envelope to Au Yeung.  He asked the applicant what was in the envelope.  The applicant replied that it contained $21,000.  The applicant was then asked why he had handed over the envelope.  In reply, the applicant said that he needed time to consider his answer to this question and would explain more fully back at ICAC Headquarters.

26.  On behalf of the applicant, it was put to Li that this exchange was of a very different nature and that there were, in fact, further exchanges before the applicant was taken to ICAC Headquarters. 

27.  First, it was suggested that, when the initial conversation took place, the applicant asked to be able to contact a lawyer.  His request however was rejected.  When he testified, the applicant said that his request was simply ignored. 

28.  Second, it was suggested that Li then made a telephone call, or perhaps received one, as a result of which it was he who informed the applicant, not the other way around, that $21,000 had been found in the envelope in Au Yeung’s possession.  Both suggestions were denied. 

29.  When he testified, the applicant said that, when he was informed that cash had been found in the envelope, he made no reply, saying subsequently that he would only speak when he got to the offices of the ICAC. 

30.  Third, it was suggested to Li that the applicant was told by him it would be in his interests to co-operate.  Later, as they walked towards the applicant’s home and then waited outside the home hoping to gain entry, Li made his meaning clear by informing the applicant that the ICAC's principal target was Kwok and that the applicant should co-operate by giving evidence against him.  It was suggested that Li had told the applicant that he could go to jail for seven years and had asked why the applicant should suffer for the misdeeds of his boss.  It was suggested that the applicant replied that he would have to discuss the matter with his lawyer but the request was refused a second time.  All of these suggestions were denied.

31.  Concerning this second request to consult a lawyer, the applicant testified that Li informed him that it would be a waste of money hiring a lawyer and that the applicant would do better by co-operating.

32.  Fourth, it was suggested that, when the applicant was about to be driven from his home to ICAC Headquarters, he was threatened by Lung who told the applicant that he was being foolish by refusing to co-operate and that he would get seven years in jail.  This too was denied.

33.  After arrival at ICAC Headquarters, the applicant was the subject of certain administrative procedures conducted by ICAC staff in the detention centre.  The applicant was given an ‘arrest and detention’ document on which in his own handwriting he gave the instruction that he did not wish his family members to be informed of his detention at that time.  The applicant testified that it was his decision not to inform his family as he did not want them to worry about the matter.

34.  The applicant was also served a ‘Notice to Persons in Custody’ document, signing that document, and a similar document, a ‘Notice to Persons Detained’.  Both documents inform a detained person of his right to legal advice and representation.

35.  The applicant accepted that he was aware of his right to contact a lawyer but did not seek to do so because he had already been twice refused and intended, when he was interviewed, to say nothing and to ask for representation by a lawyer.

36.  When the video recorded interview took place, Li and Lung were the two interviewing officers.

37.  It was not disputed that, when the applicant arrived at ICAC Headquarters, his wife was being interviewed in that same building.  Indeed, the wife was interviewed in the same interview room that was subsequently used to interview the applicant.

38.  Li testified that he was aware of the fact that, as part of the operation, the applicant's wife was to be interviewed but said that he had no idea she was in the building at that time.  Lung also testified that he did not know that the wife was in the building at that time.

39.  This was disputed by the defence.  In this regard, it was put to Li that, before entering the interview room, he informed the applicant that his wife was being held as part of the bribery investigation.  This caused the applicant considerable concern.  Li informed him that, if he was prepared to co-operate, his wife would be let go.  The applicant then agreed to co-operate provided his wife was released.  To demonstrate that his side of the bargain would be kept, Li  informed him that he would be able to speak to his wife after the interview had been completed to confirm that she was at liberty.  These allegations were denied.

40.  The evidence showed that there was in fact a telephone call made by the applicant to his wife later that day after the interview had been completed.

41.  It was the applicant's evidence that, although he knew that his wife had absolutely nothing to do with payment of any advantages to purchasers of meat products from the BUC Group and that there was no realistic prospect of her being charged, he was nevertheless deeply concerned at the fact that she was being held by the ICAC and may somehow be implicated in the proceedings.  In his mind, that changed everything and he was then prepared to make whatever admissions were necessary to prove that he had co-operated with the ICAC.

42.  Prior to the video recorded interview commencing, Li accepted that he had a short conversation with the applicant.  In that conversation, he said, he asked the applicant whether Café de Coral and the Hoi Tin Garden Restaurant were his clients and, on receiving confirmation that they were, he informed the applicant that the interview would canvass dealings with these two businesses as well.  Nothing else was said.

43.  When the applicant testified, he said that this was not the full extent of the conversation.  The applicant said that, having been shown certain papers which apparently had been seized from the envelope given to Au Yeung, Li had summarised the questions that he was going to ask him, indicating that the applicant could provide his own mitigation by admitting what he had done wrong. 

44.  When the video recorded interview commenced, the applicant was asked if he required the services of a lawyer and replied that he did not.  When he testified, the applicant said that all along that he had sought the services of a lawyer and wished to be represented by one during the interview.  However, as he had reached an agreement with the interviewing officers to co-operate in return for which his wife would be set free, he said that he did not require a lawyer.

45.  As to the various inducements that Li was said to have made to him concerning Kwok, in the course of cross-examination the applicant said that during the course of the interview these inducements had had no effect on him.

46.  In addition to testifying on the special issue himself, the applicant called two witnesses.

47.  The first was his daughter, Ng Yee Man, a bank employee.  She testified that on the afternoon of her father's arrest, some time before four o’clock, she received a telephone call from her mother who told her that she had been questioned at the offices of the ICAC concerning her father's business activities.  The daughter testified that she was unable to contact her father and therefore telephoned the ICAC hotline.  Records showed that the call was made at 4.26 that afternoon after the applicant’s interview had commenced.  The daughter said that she was put through to an ICAC officer who informed her that her father was being held in custody.  She testified that she asked if it was necessary to send a lawyer and was informed that her father had already finished giving a statement and that there was therefore no use in sending a lawyer.

48.  The daughter testified that she and her sister then went to the offices of the ICAC, arriving there shortly after six o’clock that evening.  As we have said, the applicant’s video recorded interview had taken place between 3.53 and 4.40 that afternoon and was therefore completed by the time the two daughters arrived.

49.  The daughter testified that, before being met by an ICAC officer to be taken to her father, she saw a friend of her father's in the reception.  She had a conversation with him, explaining that she was there to see her father.  The friend asked why she did not have a lawyer and she replied to the effect that she had been told by the ICAC she did not need one.  The friend said that she should get a lawyer for her father.

50.  The daughter went on to testify that, when she and her sister saw her father, he immediately asked about their mother.  The daughter said that she told her father about meeting his friend in the reception and the recommendation by the friend that a lawyer needed to be hired.  Her father replied: “Oh, then yes.”

51.  It was not disputed that legal representation was obtained that same evening.  Nor was it disputed that the following day the applicant was interviewed a second time and on this occasion, in the presence of his solicitor, he declined to answer any questions.

52.  The second witness was a barrister, Wong Tim Wai, who said that he was in the reception area of the ICAC in respect of the same investigation when he overheard a conversation between one of the people accompanying him and the applicant's daughter, Ng Yee Man.  Wong recalled that, when the daughter was asked if she had retained a lawyer, she replied that she had not done so because she had been told by the ICAC that there was no need. 

53.  Although events had taken place two years earlier, and although he was unable to remember the name of one of the persons he was representing at that time or indeed the charges being faced by that client, Wong said that he remembered the exact terms of this statement by the applicant’s daughter because he was puzzled at the time as to why the ICAC should say such a thing. 

The grounds of challenge to the admissibility of the video recorded interview.

54.  In his Reasons for Verdict, the judge recorded six grounds of challenge.  They were as follows:

a. that after his interception and arrest, the applicant was made the subject of unnecessary violence, being placed briefly in a neck lock;

b.  that the applicant’s request for a lawyer was rejected;

c.   that the ICAC officers threatened the applicant with a lengthy term of imprisonment if he did not co-operate with them;

d.  that attempts were made to induce the applicant to co-operate by informing him that the principal target was the applicant's superior, Kwok Shi Hing, and that criminal proceedings would not be pursued against him if he provided evidence against his superior;

e.   that the applicant was informed that his wife was at ICAC headquarters under investigation but that she would be released if he co-operated.

f.    that, before the commencement of the interview, there was a general discussion concerning the case, no record being kept of this discussion; in addition, the ICAC officers summarised the questions they would ask, instructing the applicant how to answer those questions.

The findings of the judge

55.  As the judge’s Reasons for Verdict make plain, having heard all the evidence concerning admissibility and having considered that evidence in context, while making allowances for lapses of memory and the like, he was satisfied that he could rely on the disputed evidence of the three principal prosecution witnesses - the ICAC officers, Li, Lung and To – as being both truthful and accurate. 

56.  This is illustrated by his findings concerning the defence contention that, prior to the taking of the video recorded interview, the ICAC officers had attempted to induce the applicant to co-operate by giving evidence against Kwok, his superior at the  BUC Group.  While accepting the inherent possibility that the ICAC officers may have wished to convince the applicant to give evidence against Kwok, the judge nevertheless concluded that no such inducements had been made.  As he said:

“I am of the view that it depends on the integrity or otherwise of individual officers as to whether they in fact committed such grave misconduct … in gathering evidence in this illicit manner. In the present case, I do not believe that they were using, or pretending to use, [the applicant] as a gang plank to nail down Kwok.”

57.  Concerning the defence contention that such an inducement had been made, the judge also took into account the applicant's own testimony that he was not in any way affected by the inducement; in short, that it had played no part in causing him to say what he did say in his interview. 

58.  As the judge’s Reasons for Verdict make equally plain, the defence evidence raised no doubts in his mind; he rejected it as being unreliable, exaggerated or untruthful.

59.  Looking to the individual grounds of challenge, it was fundamental to the applicant’s case that he only agreed to make the various submissions contained in the video recorded interview because, just before entering the interview room, he was informed that the ICAC held his wife.  It was his testimony that, prior to being informed of his wife's predicament, even though he was aware of his right to have a lawyer present during the course of the interview, he did not require a lawyer as he had no intention of making any admissions.  All of that changed, however, when he learnt that his wife was being held by the ICAC.  It was for that reason only that he entered into an “agreement” with the interviewing officers to co-operate with them in return for their guarantee that his wife would be given her liberty.

60.  The judge rejected the applicant's evidence in this regard.  The judge observed that, according to the applicant himself, he knew that his wife was not in any way involved and was confident that no charges could be made against her.

61.  Importantly, the judge accepted the evidence of the two interviewing officers that, when they escorted the applicant to the interviewing room, they did not know that the wife was in fact at that time being interviewed by other ICAC officers. 

62.  This finding was criticised by Mr. Harris who said that the judge ignored two matters of importance; first, that it was part of the operational plan to interview the wife and, second, that the wife was interviewed in the same interview room subsequently used to interview the husband.

63.  As to the first issue, it was always accepted by the two interviewing officers that they were aware of the operational plan at some stage to interview the wife.  That was not in issue.  What was in issue was whether, as they prepared to interview the applicant, they knew that the wife was being held at that time in the same building.  Both officers testified that they were not aware of that fact and the judge accepted their evidence in this regard.

64.  As to the second issue, that is, the fact that the wife was interviewed in the same room as the one in which her husband was subsequently interviewed, Mr. Harris submitted that it was more probable than not that one of the interviewing officers would have known of that fact.  But there was no evidence from which such an inference was properly to be drawn.  It is true that the judge, in an otherwise detailed ruling, made no mention of the fact that the same interview room was employed but, in the absence of evidence indicating that Li or Lung must have known that fact, and must therefore have known that the wife was being held in the same building, we do not see that it was incumbent on the judge to deal specifically with that issue.  The critical issue was whether the judge accepted the evidence of the two interviewing officers that, prior to interviewing the applicant, they did not know that the wife was being held in the same building and in that regard he came to a clear finding of fact.

65.  As to the issue generally, the judge concluded:

“I believe the prosecution witnesses [Li and Lung] that they did not use the wife's freedom as a threat or inducement. Their task, as prescribed by the operational log, had nothing to do with [the applicant’s] wife. I believe they were in fact not aware of his wife's situation and had not mentioned her situation to [the applicant] before the [interview].”

66.  Once that finding was made, then the applicant's contention that the only reason he made the admissions he did in the course of the video recorded interview, namely, out of concern for his wife's welfare, fell away.

67.  Prior to the video recorded interview commencing, it was accepted that there was an unrecorded conversation between the interviewing officers and the applicant.  Li, the senior officer, testified that he merely asked the applicant if two particular restaurant businesses were clients of his and informed the applicant that the interview would include reference to those businesses.  It was, however, the applicant's contention that this unrecorded conversation took the form of a coaching session.  It was submitted on behalf of the defence that on its own this failure to record what was said had to raise concerns.  The judge, however, did not find it to be of significance. 

68.  It was contended by the defence that, before returning to Headquarters, the ICAC officers twice rejected the applicant's request to consult a lawyer.  The judge, however, was satisfied that the applicant's decision to partake in the video recorded interview without the protection of legal representation was a decision freely made by him and was made in the knowledge of his right to have a lawyer present.  He said:

“Upon arrival at the head office, [the applicant] was read a notice of his rights, including that of getting a lawyer, by the staff in the detention centre. They did not know anything about the case. No allegation is made against them by the defence. He did not request a lawyer in front of them. In the beginning of the [interview], the right to get a lawyer was referred to again. He did not request for a lawyer either. I believe the prosecution witnesses in that the decision not to get a lawyer in [the interview], and the subsequent change of mind to get a lawyer, was entirely [the applicant's] own and had nothing to do with the officers’ conduct.”

69.  In coming to his determination, the judge was alive to the assertion made by the defence that it was important to the ICAC arresting team, particularly Li and Lung, that the applicant not be given access to a lawyer until a statement had been taken from him and that there was evidence, albeit indirect, of this state of mind.  The evidence was given by the applicant's daughter and by an independent party, a barrister.  The daughter testified that she was told on two occasions  by members of the ICAC that she did not need to get a lawyer.  The barrister testified that he overheard the applicant's daughter recounting what she had been told to a friend of her father's.

70.  The judge was unimpressed by the testimony of both the applicant's daughter and the barrister. 

71.  He stated in plain terms that he did not believe the daughter's evidence.  Having considered certain implausibilities in her testimony – for example, the implausibility of the ICAC revealing over the telephone the fact that her father was in detention without proper proof of the daughter's identity  - he concluded:

“I believe the prosecution witnesses that she had not made any such enquiry about getting [the applicant] a lawyer and that the ICAC had not told her over the telephone that [the applicant] was detained. I believe that the officers had not told her that it would not be necessary to get [the applicant] a lawyer.”

72.  Concerning the barrister, the judge commented:

“I understand that [the barrister] had not made any written note of the said overheard conversation. He had made a note of the case about his client though. In cross-examination, he cannot tell off-hand, without referring to his written note, for what offence his client was arrested. In re-examination, he is asked if what he heard, as a barrister, was something unusual for officers to say. He says that it stuck in his mind. I think he would have been most attentive to his own client in the interview. It is bizarre that he cannot remember something as straightforward as the offence for which his client was arrested without referring to his written notes but can remember off-hand the exact words uttered by [the applicant's daughter] in whose case he was not involved, the more so after more than two years. I do not find him reliable in his account of what he had overheard.”

73.  The judge was also alive to the fact that, after he had obtained legal representation, the applicant refused to answer further questions when he was interviewed the following day.  However, he rejected the submission that this was indicative of the fact that he had, at the time of the first interview, succumbed to the threats and inducements of the ICAC officers.  As we have cited above, he was satisfied that, having been advised of his right to have a lawyer present before he was interviewed and having acknowledged that he was aware of this right, on that occasion the applicant had freely made the decision to waive the need for a lawyer.  It was implicit in the judge's finding that the fact that, perhaps with a greater understanding of the true nature of his predicament, the applicant had thereafter decided to follow his daughter's advice and place himself in the hands of a lawyer, did not of itself reflect back to cause him any concern that the decision made in respect of the first interview may not have been freely made.

74.  As for the applicant's testimony that, when first arrested, he was held in a neck lock by Lung and was indeed so held for an extended period of time, the judge rejected this contention, observing that:

“It was lunchtime. The pedestrian traffic was busy. There were two male officers and one female officer. [The applicant] was a middle aged man. It would not be necessary to resort to any form of violence. I do not believe that the applicant was neck locked all the way or at all.”

The submission that the judge failed to have due regard to uncontested evidence.

75.  On behalf of the applicant, Mr. Harris has said that at trial evidential matters of common ground provided “a compelling backdrop” to the applicant’s case and, as such, were integral to a fair and balanced assessment of his case.  He submitted that the judge failed to give sufficient weight to these matters.

76.  The first matter of common ground referred to by Mr. Harris was the evidence that Kwok, the applicant’s superior at the BUC Group, was, if not the principal target of the ICAC investigation, at least a principal target. 

77.  But this was taken into account by the judge who accepted that, there being little or no evidence against Kwok at that time, the inherent possibility of the ICAC officers wishing to “turn” the applicant to give accomplice evidence against Kwok had to be recognised.  It was, however, his finding that, at that time, the officers who arrested the applicant were not concerned with the broader tactical issues of whether the applicant could be persuaded to give accomplice evidence against Kwok.  They were concerned instead - at that time - with the issue of investigating the extent of the applicant's personal criminal liability, whether acting on his own or with Kwok.  That was finding open to him on the evidence.

78.  The remaining evidential matters of common ground to which Mr. Harris makes reference all relate to the matters pertaining to the applicant’s wife and daughters in so far as they are relevant to the context in which he partook in the video recorded interview and to subsequent events.  Again, however, it is evident that all of these matters of common ground were taken into account by the judge.

79.  The judge did not question the fact that, at or about the time when the applicant was brought to ICAC Headquarters, the wife was being interviewed in the same building.  But it was his finding on the evidence that neither Li nor Lung, the two officers who interviewed the applicant, were aware of it.  On the evidence that was a finding of fact properly open to him.

80.  As for the agreed evidence that, before his interview, the applicant signed a form saying that he did not wish to contact his wife, we do not see that this advances matters for the defence.  It was the applicant's own testimony that it was his decision not to contact his wife at that time as he did not wish to cause her concern.  There was no evidence that he was in any way prevailed upon in this regard.

81.  However, as the judge observed, some two hours later, when the applicant had completed his video recorded interview, a different set of  circumstances then prevailed, one in which the applicant understandably, at that later hour, may have wished to contact his family members.

82.  The judge further accepted that the applicant's daughter had contacted the ICAC hotline by telephone to try and discover if her father was being held and had later that same day gone to ICAC Headquarters in order to see him.  At issue, however, was what was said over the hotline or during any consequent telephone conversation and what was said later when the applicant's daughter arrived at ICAC Headquarters and in that regard, as we have said, the judge was not prepared to accept the daughter's evidence.

83.  In summary, we are satisfied that none of the matters of common ground referred to by Mr. Harris were ignored or given insufficient weight by the judge.  They were all taken into account.  With respect, the complaint appeared to be that they were not taken into account in a manner more favourable to the applicant.  But it was for the judge, viewing matters as a whole, and having the benefit of being able to assess the evidence of the witnesses at first hand, to come to findings of fact.  In our judgment, it cannot be said that, in coming to his findings of fact, the judge failed to give due consideration to all of the relevant evidence or, as implied by Mr. Harris, that he rejected the defence evidence out of hand.

Inconsistencies in the prosecution evidence.

84.  Mr. Harris pointed to a number of inconsistencies in the evidence of the three ICAC officers who made up the arresting team.  The more important of these, he said, went to matters that took place at or about the time of the applicant's arrest.  In particular, they related, first, to the route taken from the scene of arrest to the place where the applicant was initially questioned and, second, to how it was that it was revealed that $21,000 was in the envelope that the applicant had given to Au Yeung, whether the applicant had made that admission or whether Li had been informed by other members of the ICAC.  Arising out of this second matter, Mr. Harris pointed to an inconsistency between the evidence of the three officers as to whether and, if so, to what extent Li spoke on his telephone at about this time.  The judge, however, was alive to these inconsistencies.

85.  As to the route taken, he accepted that the ICAC officers, who were unfamiliar with the area, may have been incorrect in their recollection.  It was his conclusion, however, that very little, if anything, turned on it.  In this regard, we would add that during the course of his cross-examination of the ICAC officers, Mr. Harris, who appeared as counsel at trial, sympathised with the officers in their difficulty in trying to remember after some two years, in respect of an area essentially unknown to them, what route they had taken.

86.  The judge took into account the defence submission that the officers may have deliberately distorted their evidence to avoid having to admit that they had seen Au Yeung being arrested and searched by other ICAC officers but gave no weight to it.  As he observed, whatever route they took, at that time their attention would have been focused on their own target, the applicant.

87.  As to how it was that it was revealed that $21,000 was contained in the envelope given by the applicant to Au Yeung, the judge recognised an apparent inconsistency between the evidence of Li and the junior member of the arresting team, To.  However, in substance he did not find it to be so.  He accepted To’s evidence that she was at the relevant time distracted with other duties, more specifically talking over her mobile telephone to an ICAC officer to arrange a car and that, in order to make the call, she had taken a few steps away from the applicant and her two colleagues.

88.  Speaking for ourselves, having considered the relevant portions of the transcript, while there were differences in evidence, we can well understand the judge concluding that they were not of such significance as to raise doubts as to the integrity of the prosecution case on the ‘special issue’ of admissibility.

The strength of the applicant's case.

89.  Mr. Harris submitted that, in contrast to the inconsistencies in the prosecution case, the applicant's witnesses were consistent and that there was a “compelling ring of truth” in what they said.  This submission, of course, is contrary to the findings of the judge.

90.  In support of this submission, Mr. Harris said that plainly the ICAC would have been interested in using the applicant to incriminate Kwok.  That may have been the case.  The judge did not dispute that.  It was, however, his finding that at that early stage of the investigation the officers were more concerned with investigating the nature and extent of the applicant's personal criminal liability.

91.  Mr. Harris submitted that it was more likely than not that something would have been said by Li to the applicant about the applicant’s wife.  We do not see how that must be the case, even if Li anticipated that at some stage the wife would be involved in the ICAC’s investigation.  The judge came to a finding of fact that, between the time when the applicant was brought back to the offices of ICAC and went into his interview, Li, the senior interviewing officer, did not know that the wife was being interviewed at that time in the same building. 

92.  Mr. Harris submitted that it was “probable” that the applicant's daughter did enquire of the ICAC whether she should obtain legal assistance for her father.  In this respect, the judge came to a finding of fact that she did not make any such enquiry of the ICAC.  While we accept that the applicant's daughter may well have considered the need to hire a lawyer, we do not see that it must follow that she would consult the ICAC itself about this.

93.  Mr. Harris makes the further submission that the applicant, his daughter and the barrister were all persons of good character and that there was no good reason why their evidence should be disbelieved.  The judge was aware of the good character of all three witnesses.  In assessing the weight to be given to their testimony, it was one of the matters which he took into account.  But it does not follow that he was thereby obliged to accept their testimony.  As it was, he found that it was either untruthful or unreliable.  On a view of the evidence taken as a whole we can find no reason to take issue with those findings.

Giving weight to the record of interview.

94.  We turn finally to the issue of weight.  For ourselves, accepting, as we do, that the judge’s ruling as to admissibility was a decision properly open to him, we find no ground for holding that this was one of those limited cases where the residual discretion to nevertheless exclude it should have been exercised. 

95.  Inherent in the finding that the record of interview had been made voluntarily, was the finding by the judge that there had been no unfairness or oppression or abuse of the investigative process.  Nor was he of the view that in some way the prejudicial effect of the statement may have outweighed its probative value.  To the contrary, he was of the view that the record of interview was a truthful and accurate account of how the applicant involved himself in corrupt payments to customers of the BUC Group.  We have no reason to think that he was wrong in so concluding.