THE ATTORNEY GENERAL v. CHAN WAI-LIM, ALIAS BILL CHAN AND OTHERS

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RULING

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1. I have before me an application by the Attorney General under section 77E of the Evidence Ordinance for an order that a letter of request shall issue directed to the United States District Court for the Northern District of California through the United States Department of Justice for an order pursuant to Title 28 United States Code Section 1782 that Yang Yuan-loong should be examined as a witness upon oath with respect to an alleged criminal conspiracy that existed in Hong Kong between October 1984 and February 1986, the purpose of which conspiracy was to dishonestly win money for its members from the Royal Hong Kong Jockey Club by contriving to prevent certain horses in certain horse-races from running to the best of their natural abilities. Section 77E(1) of the Evidence Ordinance provides:

             (3)   An application to the High Court for an order under this section may be made ex parte supported by affidavit -

2. Although the application may be dealt with ex parte, the respondents who are charged in these proceedings were invited to attend and have been represented before me, either by counsel or by solicitor. One point of objection that was taken by Mr. Wong who appeared for the 3rd respondent to the effect that the affidavit in support should have been sworn by the Attorney General or his representative, has no merit so that objection is rejected.

3. The evidence in support of the application is set out in an affidavit of Mr. P.W. Anderson, an officer of the Independent Commission Against Corruption, which he made on the 24th February 1987. He says that he was the leader of a team that investigated the activities of a horse-racing fixing syndicate in Hong Kong which later resulted in the arrest of several persons including the present respondents and Mr. Y.L. Yang. Mr. Y.L. Yang who was the financier of this syndicate pleaded guilty to six counts of conspiracy to cheat at gambling contrary to s.16(1) (a) of the Gambling Ordinance in the High Court on the 2nd September 1986. He was sentenced to a term of imprisonment for two years which was suspended for two years and fines totalling $5,400,000 were imposed. The trial judge who imposed the sentence said that he would have imposed an immediate custodial sentence of three years imprisonment, having taken into account various mitigating factors including the plea of guilty. However, he was faced with medical evidence to the effect that Mr. Yang was suffering from terminal cancer and had only a short time to live. Although no actual period had apparently been given, a few months only had been forecast.

4. Following his sentence, Mr. Yang left Hong Kong and he now resides in Jamaica. According to the evidence he is receiving medical treatment at the Cedars-Sinai Medical Center in Los Angeles.

5. Prior to leaving Hong Kong, Mr.Yang told Mr. Anderson that he would return to assist the Crown by giving evidenced at any subsequent trial of his alleged accomplices, i.e. the respondents. The committal proceedings relating to the respondents are due to commence on the 23rd March 1987. The 1st respondent has indicated through his counsel that he wishes to have Mr. Yang called as a witness at the hearing. After this information had been communicated to the Attorney General, Mr. Anderson made arrangements to contact Mr. Yang. He then received a communication from Mr. Howard N. Allen M.D. which is written on the note paper of the Cedars-Sinai Medical Centre Los Angeles which reads :

"

January 26, 1987
Re : Mr. Y.L. Yang
To Whom It May Concern :

 

Mr. Yang was referred to me by Dr. Peter T. King of Hong Kong with a history of cancer and diabetes mellitus. He has been under my care for these problems since September 8, 1986. His condition has not significantly improved since he was first seen by me. It is thus my opinion that it is imperative he avoid stressful situations and long distance travel which would be detrimental to his health."

6. Earlier this month, Mr. Anderson went to the United States where he interviewed Mr. Yang and in his affidavit at paragraphs 18 and 19 he has this to say :-

In the medical report which is dated the 20th February 1987, Mr. Allen confirms that he first saw Mr. Yang in September 1986. His finding upon examination of a number of medical reports and tests that he carried out was to the effect that Mr. Yang has metastatic cancer. At that time, Mr. Yang's condition was described as stable and no treatment was recommended. However, he has expressed the opinion that it would be inadvisable for Mr. Yang to return to Hong Kong to give evidence in view of the stress of long distance travel and that an appearance at the trial could result in a precipitous deterioration in his condition.

7. Mr.Egan who appeared for the Crown submitted that Mr. Yang is a crucial witness for the prosecution and having regard to the evidence, an order should be made. He ventured to suggest some other factors from the bar table such as loss of face and embarrassment that might be caused to bring on stress. However, I propose to disregard those comments.

8. The application was opposed by the respondents on the grounds that the Crown, in effect, allowed Mr. Yang to leave Hong Kong without any real guarantee of his return to give evidence and that their clients should not now be prejudiced and placed in the position of having to incur the considerable expense of going to the United States for the purpose of taking his evidence. They also pointed to the fact that Mr. Yang has not actually refused to return to Hong Kong. However, when Mr. Anderson gave viva voce evidence to elaborate on the matters that he has set out in his affidavit, it is abundantly clear that Mr. Yang will not return because of the medical advice that he has received. It appears that Mr. Yang is still leading an active life based on advice that he has received from his doctor that he should carry on as usual. Perhaps Mr. Yang who is an admitted cheat has hoodwinked the authorities and is now resiling from his previous promises of assistance.

9. Although Mr. Lee made some strong criticisms of the medical evidence produced by the Crown and produced medical evidence that contradicts that of Mr. Allen, there is no doubt that Mr. Yang is suffering from cancer. Having regard to the fact that Mr. Yang is able to travel long distances, there appears to be no reason why he should not be able to travel to Hong Kong. Nevertheless, hiding behind the shield of Mr. Allen, he has informed Mr. Anderson, and I accept his evidence, that he will not come to Hong Kong. It has been argued that not only would it cause Mr. Yang stress to give evidence in Hong Kong, but also the same objection can be raised with regard to giving evidence on commission. However, I am not persuaded that would necessarily be the case. Again the Crown has been criticised for making an error of judgment in allowing the present situation to arise, but having regard to the facts that were presented at the trial of the imminent need for treatment, the Crown could not realistically have taken any steps to keep Mr. Yang within the jurisdiction. He was quite free to proceed as he wished.

10. Mr. Yang is quite clearly a vital witness, being the principal conspirator. He is not prepared to come to Hong Kong. The cost involved in taking evidence on commission apart from travelling and accommodation will be considerable, but these factors should not frustrate the prosecution in their endeavours to obtain his evidence. In my judgment and in the exercise of my discretion, I have no hesitation in acceding to the application so that I shall make an order in the terms as sought. I understand that overtures have been made by the Attorney General to the Registrar of the Supreme Court that in the event of an order being made, the magistrate appointed for the committal should travel to the United States to take the evidence on commission. In my view, such a course is highly desirable. I merely add that counsel for the defendants should of course be given facilities to attend at the examination and to cross-examine the witness if they think fit to do so.